Environment Agency v Inglenorth Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSIR ANTHONY MAY,MRS JUSTICE DOBBS
Judgment Date17 March 2009
Neutral Citation[2009] EWHC 670 (Admin)
Docket NumberCO/5109/2008
Date17 March 2009

[2009] EWHC 670 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Sir Anthony May

President Of The Queen's Bench Division

Mrs Justice Dobbs Dbe

CO/5109/2008

Between:
Environment Agency
Claimant
and
Inglenorth Limited
Defendant

Mr Angus McCullough (instructed by the Environment Agency) appeared on behalf of the Claimant

The Defendant did not appear and was not represented

SIR ANTHONY MAY
1

: We all know that fly-tipping is a mess and can be hazardous. It is right that the transport, disposal and storage of waste should be controlled, as it is by the Environmental Protection Act 1990. This statute in turn implements in this jurisdiction the European Waste Framework Directive. The version of the Directive which was current at the time relevant to these proceedings was 2006/12/EC.

2

Section 75(2) of the 1990 Act defines waste as “any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard”. By section 75(4) controlled waste means household, industrial and commericial waste or any such waste. Section 75(11) tells us that the definition of waste is there to assign to waste the meaning which it has in the Waste Directive. It can be seen that section 75(2) says the same as Article 1A of the Directive.

3

According to ordinary understanding, “discards” means throws away or gets rid of. It plainly imports the notion that the holder has no use for the substance or object and wants to get rid of it. Those concerned with environmental protection are, however, concerned to enlarge the meaning of this ordinary word to cover circumstances which might at the fringes make it debateable whether the substance of this was or was not waste.

4

Broadly speaking, the control of waste disposal in this jurisdiction is effected by a system of licences. Section 33(1)(a) of the 1990 Act prohibits people from depositing controlled waste or from knowingly causing or knowingly permitting controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in place and the deposit is in accordance with the licence. So I cannot dump or have dumped controlled waste onto my drive unless there is a licence in force permitting it. By section 34(1)(a) anyone carrying or disposing of controlled waste has a duty to take all reasonable measures to prevent any contravention by someone else of section 33. So, if a lorry driver is delivering controlled waste to dump it on my drive, he has to see to it that I have a licence to have it there.

5

The question which this case stated by the Stockport Justices of 28th November 2007 raises is exemplified in most respects by the following example: if I get a lorry driver to deliver hardcore from a demolition site to my drive when I am going to use the hardcore to mend my drive, or it may be as a subbase for a concrete slab in the garage that I am constructing, is the hardcore as delivered to me waste and do I need a licence to receive it and does the lorry driver commit an offence by delivering it when I have no licence and does he have to warn me about the need for having a licence. Those are not the exact facts on which the Justices acquitted the respondent, Inglenorth Limited, of two informations under the Environmental Protection Act 1990 but they raise, in my view, the essential question which is whether the hardcore so delivered for that purpose was waste. The common sense answer reached by the Justices is that it was not because the hardcore is material which I am going to use, not material which I am going to discard. I am not going to discard it, I am not going to throw it away or get rid of it.

6

This appeal by the Environment Agency seeks to say that the Environmental Protection Act 1990 and the Directive are not or not always instruments of common sense.

7

Inglenorth Limited were the object of two informations dated 27th April 2007 as follows. The first information charged that:

“On or before 30th August 2006 being a carrier of controlled waste, [they] failed to comply with the duty imposed by section 34(1)(a) of the Environmental Protection Act 1990 in that they failed to take reasonable measures to prevent the contravention by another person of section 33 of the said Act, in that they failed to inform Linten Garden Products Limited of their need to hold a Waste Management licence in order to deposit controlled waste on land at Manchester Road, Cheadle. Contrary to section 34(b) of the Environmental Protection Act 1990.”

The second information charged that:

“On or before the 30th August 2006, [the respondent] deposited controlled waste on land at Golden Days Garden Centre, Manchester Road, Cheadle, when there was no Waste Management Licence in force authorising that deposit. Contrary to section 33(1)(a) and section 36(6) of the Environmental Protection Act 1990.”

8

The Justices acquitted the respondents on 28th November 2007. They heard and recorded much evidence and found the following acts:

“Mr Stephen Evans is the owner of Golden Days Garden Centres at Standish and Cheadle. Mr Stuart Campbell is the Company Secretary for the Respondent.

The Respondent has a licensed landfill site and a licensed transfer waste site.

A greenhouse at the Golden Days Standish Garden Centre was demolished in July 2006, to make way for a new building.

Demolition material was deposited and stored in the car park at the Golden Days Garden Centre, Standish site. At all times, Mr Evans wanted to put the material from the demolition of the greenhouse to some use in the business. It was Mr Evans intention that at least some of the material would be transferred to the Cheadle site for business use there. Mr Evans had no intention, at any point, to discard the material. It was a valuable commodity which Mr Evans intended to reuse.

We made no finding as to when Mr Evans formed the specific intention to use the material to make good a car park at the Cheadle site.

On or about 12 August 2006, Mr Campbell approached Mr Evans at the Standish Garden Centre site, and offered to take the material to the landfill site at Skelmersdale, operated by the Respondent. Mr Evans declined that offer and explained to Mr Campbell that he wanted some of the material transported to the Cheadle Garden Centre site to make good a car park there.

On 14 August 2006 approximately 20% of the material was transported to, and deposited at, the Cheadle Garden Centre site by the Respondent. The material occupied an area approximately 28 metres long, 3.5 metres wide and 1.5 metres high. It was deposited on a track adjacent to and owned by the Golden Days Garden Centre at Cheadle.

The relevant material contained solid breeze blocks, large and small pieces of concrete, tiles, pieces of brick, clay pipe and clay. It was not toxic, hazardous to health or a danger to the public.

At material times the Respondent did not have a Waste Management Licence authorising the deposit of waste at the Golden Days Cheadle Garden Centre site.

On 8 December 2006, Mr Evans arranged for the material on the Cheadle site to be moved to a landfill site. On 12 May 2007, Mr Evans accepted a caution. Subsequently, Mr Evans made an application for a licence.”

9

We note three things initially from those findings of fact. The first is that the informations brought against Inglenorth Limited and the person of Mr Campbell concerned and concern only 14th August 2006. Mr Campbell and his company were delivering the material to the site and dropped out of the picture immediately after they had made the delivery. The second is that upon those findings Mr Campbell knew that Mr Evans intended to use the material to be transported to the Cheadle Garden Centre site to make good his car park there. Thirdly, and as an aside to the last finding, Mr Evans had said in evidence that he removed the material in December from the Cheadle site broadly because he was being threatened with prosecution by environmental officers and he had accepted a caution from them to avoid going through the bother and worry of a court case.

10

Returning to the case stated, the Justices set out their understanding of the legal framework as follows:

“The Respondent could only be guilty of depositing controlled waste when there was no Waste Management Licence in force, contrary to section 33 of the Environmental Protection Act 1990 and of carrying controlled waste and failing to comply with the statutory duty to take reasonable measures to prevent the contravention by a third party of an offence, contrary to section 34 of the Act, if the material which the Respondent deposited, was to be regarded as 'waste' for the purposes of the Environmental Protection Act 1990.

The definition of 'waste' is found in section 75 of the Act. Section 75(11) provides that 'waste' is to be given the meaning which it has in the Waste Directive, which is the directive of the European Community, known as the Waste Framework Directive ('WFD'), dating from 1975, now consolidated with subsequent amendments in Directive 2006/12/EC.

Article 1(a) of the Directive, defines 'waste' as any substance or object in the categories set out in Annex 1, which the holder discards or intends or is required to discard.

Annex 1 to the Directive lists categories of 'waste' which is not exhaustive, since it includes a catch-all group 'any material, substances or products which are not contained in the above mentioned categories'.

Articles 9 and 10 of the Directive, provide that any waste disposal or recovery operation specified in Annex IIA or Annex IIB, must...

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3 cases
  • R v W and Others
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 11 May 2010
    ...which had to be disposed of in some manner. It had to be got rid of or, in the terms of the Directive, “discarded”.” 27 In Environment Agency v Inglenorth Ltd. [2009] EWHC 670 (Admin), the court was concerned with materials left over from the demolition of a greenhouse at a garden centre, s......
  • Godwin Chukwnaenya Ezeemo, Reliance Export Ltd, BJ Electronics Ltd, Chika Ezeemo, Joseph Benson, Orient Export Ltd, Nnamdi Chinedu Ezechukwu v R
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    • Court of Appeal (Criminal Division)
    • 16 October 2012
    ...and second by Thorn, they were no longer waste. 43 The meaning of waste was again considered by the Divisional Court in Environment Agency v Inglenorth [2009] EWHC 670 (Admin), [2009] Env LR 33 (Sir Anthony May, President, and Dobbs J). The owner, Mr Evans, had demolished a large greenhou......
  • R v Evan Jones and Another
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 27 July 2011
    ...8 The two leading domestic authorities on that issue are the decision of the Divisional Court in Environment Agency v Inglenorth Ltd [2009] EWHC 670 (Admin) and the decision of the Court of Appeal in W, C and C [2010] EWCA Crim. 927. 9 In Inglenorth the owner of two garden centres demolishe......

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