Official Receiver v Environment Agency; Bluestone Chemicals Ltd v Environmental Agency
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 1999 |
| Date | 14 July 1999 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal.
Before Lord Justice Roch, Lord Justice Morritt and Mr Justice Rattee
Insolvency - waste management licence is property - liquidator entitled to disclaim
A waste management licence was property within the meaning of section 436 of the Insolvency Act 1986, and constituted onerous property for the purposes of section 178(3).
The liquidator of a company holding a waste management licence was entitled to disclaim the licence pursuant to section 178(4) of the 1986 Act and in so doing did not commit an offence under section 33 or a breach of duty under section 34 of the Environmental Protection Act 1990.
The Court of Appeal so held in a reserved judgment when allowing the appeal of the Official Receiver as liquidator of Celtic Extraction Ltd and Bluestone Chemicals Ltd from the order of Mr Justice Neuberger dated March 11, 1999, that a waste management licence was property as defined in section 436 of the 1986 Act, but that the liquidator was not entitled to disclaim the licence.
Both companies, in compulsory liquidation, held waste management licences under the 1990 Act. The Environment Agency informed the Official Receiver that the companies were in breach of various conditions of their licences.
The Official Receiver took remedial steps, the costs of which, in the case of Celtic Extraction had to be borne by the public purse since the company had no assets. The Official Receiver applied to the court for directions as to his entitlement to disclaim the licences.
Mr Richard Ritchie for the Official Receiver; Mr Roger Kaye, QC and Mr Stephen Moverley-Smith for the Environment Agency
LORD JUSTICE MORRITT considered the question whether statutory exemptions or licences were "property".
His Lordship reviewed the relevant authorities and said that those cases indicated the salient features which were likely to be found if
the status of property were to be conferred on an exemption from some wider statutory prohibition.
First, there had to be a statutory framework conferring an entitlement on one who satisfied certain conditions even though there was some element of discretion exerciseable within that framework. That condition was satisfied by sections 35(2), 36(3) and 43 of the 1990 Act.
Second, the exemption had to be transferable, which was satisfied by section 40(1) of the 1990 Act.
Third, the exemption or licence had to have value. There was no...
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