Environment Agency v Biffa Waste Services Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,MR JUSTICE TUGENDHAT |
| Judgment Date | 12 December 2006 |
| Neutral Citation | [2006] EWHC 3495 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5421/2006 |
| Date | 12 December 2006 |
[2006] EWHC 3495 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Pill
Mr Justice Tugendhat
CO/5421/2006
MR MARK HARRIS (instructed by Environment Agency) appeared on behalf of the CLAIMANT
MR IAN CROXFORD QC and MR THOMAS de la MARE (instructed by Fairweather Whillis Toghill) appeared on behalf of the DEFENDANT
This is an appeal by the Environment Agency ("the appellants") against a decision of District Judge (Magistrates' Court) Crabtree, sitting at North and East Hertfordshire Magistrates' Court, dated 4 April 2006. The district judge dismissed charges brought by the appellants against Biffa Waste Services ("the respondents") which alleged that the respondents had failed to comply with condition 2.6.12 of Pollution Prevention and Control Permit BK 1988, contrary to Regulation 32 (1) (b) of Part 6 of the Pollution Prevention and Control Regulations 2000 ("the 2000 Regulations") and Section 2 of the Pollution Prevention and Control Regulations 1999 ("the 1999 Act"). Other charges alleging breaches of the Environmental Protection Act 1990 were not pursued on the ground that the relevant sections had been disapplied where the site in question was regulated, as this one was, by way of a permit issued under the 2000 Regulations. The appeal is by way of case stated.
The informations preferred arose out of complaints from local residents that strong odours had been emitted from the respondent's landfill site at Westmill Road, Ware, Hertfordshire. The informations covered a series of dates from August 2004 to February 2005. The case stated notes that the respondents had submitted that the charges were non-justiciable. The district judge recorded his findings, first, that the nature of the requirements imposed by condition 2.6.12 were unambiguous; secondly, he ruled that "the condition was ultra vires as it exceeded the object of the power to include conditions in permits, and also usurped the role of the court".
In stating a case, the district judge stated:
"The question for the opinion of the High Court is:
Was I correct to rule that, by the inclusion of the phrase ' ….. as perceived by an authorised officer of the Agency', Condition 2.6.12 of PPC permit number BK 1988 issued in respect of the respondent company's site known as 'Westmill II' was invalid or ultra vires on any or all of the following grounds:
a. It offends the principles of certainty (clarity and foreseeability) required for the elements of an offence by:
(i) Domestic law and/or
(ii) Art 7 ECHR.
b. It has the effect of usurping the fact finding and adjudicative roles of the Court by bestowing on an authorised officer the functions of establishing the relevant facts (according to that officer's subjective judgement) and obliging the Court to convict whenever it is satisfied that the officer honestly perceived those facts.
c. It results in a Condition which extends beyond the object of the power provided for at Regulation 8 of the Landfill (England and Wales) Regulations 2002."
The Landfill (England and Wales) Regulations 2002 ("the 2002 Regulations") were made in exercise of powers conferred by Section 2 of the 1999 Act. They set out a specific regime for landfill permits, such permit being required by the 2000 Regulations for the disposal of waste in landfill. The respondents required a landfill permit to carry out the disposal of waste on their site. Regulation 8 (1) provides that -
"A landfill permit shall include conditions specifying the list of defined types, and the total quantity, of waste authorised to be deposited in the landfill."
Regulation 8 (2) (a) provides that such a permit -
" ….. shall also include appropriate conditions -
specifying [amongst other things] requirements for -
…..
monitoring and control procedures, including contingency plans."
Regulation 8 (3) provides that a landfill permit -
" ….. shall also include -
(a) appropriate conditions for ensuring compliance with the requirements ….. "
Paragraph (5) of Schedule 2 provides, inter alia, that measures must be taken to minimise the nuisances arising from the landfill in relation to the emission of odours and dust - (5) (1) (a).
Regulation 14 provides, insofar as is material:
"(1) The following requirements shall apply to landfill sites from the start of the operational phase until definitive closure.
(2) The operator shall carry out the control and monitoring procedures set out in Schedule 3.
(3) Where the procedures required by paragraph (2) reveal any significant adverse environmental effects, the operator shall notify the Environment Agency as soon as reasonably possible.
(4) When it receives a notification of significant adverse environmental effects in accordance with paragraph (3), the Environment Agency shall determine the nature and timing of corrective measures that are necessary and shall require the operator to carry them out.
(5) The operator shall report at intervals specified by the Environmental Agency, on the basis of aggregated data, the results of monitoring and on such other matters which the Environment Agency requires to demonstrate compliance with the conditions of the landfill permit or to increase its knowledge of the behaviour of waste in landfill."
By virtue of Regulation 32 of the 2000 Regulations, it is an offence to fail to comply with or to contravene a condition of a permit.
The permit issued for the respondents' Westmill II waste management facility, BK 1988, is dated 7 April 2003 and was transferred or endorsed to the respondents on 25 May 2004. Condition 2.6.8 requires the operator to provide, implement and maintain measures to prevent or otherwise control, minimise and monitor, amongst other things, "odour". The breaches alleged were of condition 2.6.12:
"There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution to the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency [Environment Agency].
An authorised officer, as defined in the Regulations, is one duly authorised by the Environment Agency.
Section 6 of Schedule 3 to the Permit headed "Amenity Management" describes the measures required to protect the environment against pollution which may cause harm to health or to the amenity value of the area. These give substance and detail to the requirements in Regulation 14, to which I have referred. Paragraph 6.3 provides:
" ….. Landfill gas odour monitoring and reporting will be undertaken in accordance with the methodology detailed below."
Paragraph 6.3.4 provides:
"Frequency of landfill odour monitoring
Landfill odour monitoring will be carried out a minimum of once per working week during operating hours unless a complaint is received. The monitoring will then be carried out daily for at least 5 working days from the date of the complaint."
Paragraph 6.3.5 provides:
"Landfill odour monitoring methodology
Landfill odour monitoring will be carried out around the boundary of the operational cell of the landfill and in the residential area, industrial area and Health Farm close to the landfill as these have been identified as the sensitive receptors most likely to be affected. If a complaint has been received the monitoring will also be carried out close to the origin of the complaint or the nearest receptors.
The route will be walked by the designated person or site manager to detect any landfill odour with the designated person walking slowly and breathing normally.
If landfill odour is detected while walking the intensity should be recorded as at least 3.
When landfill odour cannot be detected in this way the designated person will stand still at the monitoring point and inhale deeply facing upwind. If landfill odour is then detected, but can only be detected in this manner, the intensity should be noted as 2."
There is also provision for monitoring from a car.
A classification system follows that condition. It defines level 3 as -
"Moderate landfill odour (landfill odour easily detected while walking and breathing normally)."
Paragraph 6.3.6 provides:
"Calibration of site operative
In addition to the landfill odour monitoring carried out in Section 6.3.5, landfill gas odour monitoring will be carried out once a month by the site manager in conjunction with the designated person. This will be undertaken to calibrate the landfill odour monitoring carried out by the designated person.
The designated person will also carry out landfill odour monitoring in conjunction with the Agency Officer when a visit is undertaken and this is requested by the Agency Officer. This will be undertaken to calibrate the landfill odour monitoring carried out by the designated person and ensure consistency in landfill odour monitoring.
When dual monitoring is carried out by either the site manager or Environment Agency Officer, then individual observations shall be taken and recorded prior to any discussion being undertaken."
Classification systems for the extent of odour and the sensitivity of location are also provided.
Before the district judge, the appellants submitted, as recorded by the judge in his judgment, that, properly construed, condition 2.6.12 did not give the authorised officer a role which usurped that of the court. The court was not bound by the officer's opinion and it could consider all the evidence in determining whether the emission offended against...
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