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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shanks & MceWan (Southern Waste Services) Ltd. v The Environment Agency [1997] EWHC Admin 873 (14 October 1997) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/873.html Cite as: [1999] QB 333, [1998] 2 WLR 452, [1997] EWHC Admin 873, [1997] 2 All ER 332

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		14th October 1997

MR JUSTICE SMEDLEY: This is an appeal by case stated against the decision of the Peterborough Magistrates' Court when they convicted the appellant company on two informations preferred against it by Cambridgeshire County Council (the prosecution being subsequently taken over by the Respondent) alleging offences contrary to Regulation 16 of the Control of Pollution (Special Waste) Regulations 1980 and Section 34(1)(a) of the Environmental Protection Act 1990. The case was heard on 15 and 16 August 1996.

The first information alleged that:

prior to the removal of special waste as defined by Regulation 2 of the Control of Pollution (Special Wastes) Regulations 1980 on 27 September 1995 from the premises of United Overseas Ltd at Fellowes Road, Peterborough to the Shanks & McEwan Landfill site at Welland Road, Dogsthorpe, Peterborough and as the carrier of such waste unlawfully failed to complete part C of the consignment note as required by Regulation 4(5) of the said regulations contrary to Regulation 16 of Control of Pollution (Special Wastes) Regulations 1980.

The second information alleged that:

on 27 September 1995 as the carrier of controlled waste from the premises of United Overseas Ltd at Fellowes Road Peterborough to the Shanks & McEwan Landfill site at Welland Road, Dogsthorpe, Peterborough the company unlawfully failed to take all such measures applicable in that capacity as a carrier as were reasonable in the circumstances to prevent any contravention by any other person of Section 33 of the Environmental Protection Act 1990 contrary to Section 34(1)(a) of the Environmental Protection Act 1990.

The relevant facts for the purposes of this appeal as set out in the case stated by the Justices are as follows. On 27 September 1995 the Appellants were engaged by United Overseas Ltd to collect from their premises and to dispose of certain inflammable waste material which (there is no dispute) fell within the definition of "special waste" as provided by the 1980 Regulations. The waste was contained in sealed tins, there were 4 tins packed in each box.. The boxes were loaded onto pallets. The tins and boxes all displayed a flame symbol, that symbol not being a standard "Hazchem" symbol. It was a specific finding of the Justices that when ordering the skip United Overseas Ltd did not say that the waste was special waste. When, therefore, the lorry driver arrived to collect the waste material he endorsed the Appellant's standard invoice for it to the effect that he had collected "hazardous waste". The producers had not prepared a consignment note as was required by Regulation 4(1) of the 1980 Regulations which they should have prepared for the benefit of the carrier and of the local Regulatory Authority where the waste was "special waste". It follows, therefore, as was found by the Justices that the Appellants were not able to complete part C of a consignment note as required by Regulation 4(5) since such a consignment note had not been prepared.

The Appellant's driver removed the waste to one of the Appellant's own disposal sites, this being a landfill site. It was not a site to which special waste was normally delivered. However, as the Justices found, when the waste was seen at the landfill site by Mr Johnson, a chemist employed by Shanks and McEwan, he found the waste to be "special" and diverted it to a site licensed to receive such special waste. He immediately notified the Cambridgeshire Waste Regulation Authority of the facts by faxing to them a non-confirming waste report. On 25 January 1996 United Overseas Ltd, producers of the waste, pleaded guilty to having failed to prepare the consignment note required, contrary to Regulation 16 and guilty to an unlawful failure as waste producer to take reasonable measures to prevent the contravention by another of Section 33 of the 1990 Act, that offence being expressed to be contrary to Section 34 of that Act and the company was fined £1000 in respect of each offence.

The starting point for our consideration of this aspect of the case is obviously the Regulations themselves. Those regulations, the Control of Pollution (Special Waste) Regulations 1980 were made by the Secretary of State for the Environment and dated 30 October 1980. They were subsequently revoked by the Special Waste Regulations 1996 to which we shall have to refer in a moment or two. Regulation 1 says that the word "carrier" shall have the meaning assigned to it in Regulations 4(5), 4(1) and 6. By Regulation 2 the term "special waste" shall apply to any controlled waste which, insofar as it is relevant for this case, has a flashpoint of 21 degrees Celsius or less as determined by the methods and with the apparatus laid down by the British Standards Institution in BS3900. By Regulation 4 any person who produces special waste shall, before any such waste is removed from the premises at which it is produced, prepare 6 copies of the form set out in Schedule 2 (the consignment note) shall complete parts A and B and shall furnish one copy to the disposal authority for the area in which it is to be disposed of. By Regulation 4(5) any person who transfers "special waste" from the premises at which it is produced to another person for disposal (in these regulations referred to as "the carrier") shall, before any such waste is removed from those premises, complete part C of the consignment note and the producer shall then complete part D. The Regulation requires that the producer shall retain one copy of the consignment note and if the waste is to be disposed of in the area of an authority other than that in whose waste area the waste was produced then the producer must furnish another copy of the consignment note to the authority for his own area. The remaining copies shall be supplied to "the carrier".

The contention of the Appellant is that although it was contracted to transfer the waste to a particular site for disposal it was not on that occasion the carrier. At first blush such a contention would seem to fly in the face of common sense. But the fact is that the phrase "the carrier" for the purposes of these Regulations is defined in the Regulations themselves. "Carrier" is defined as "any person who transfers special waste from the premises at which it is produced to another person for disposal". So, the argument runs, the Appellants were not transferring the waste to another person but to their own landfill site and that they were therefore not a carrier as defined by Regulation 4(5). The Justices decided that to interpret the Regulation in the way in which the Appellants sought to persuade them that they should, would be an absurd interpretation of the legislation. They said in terms in paragraph 6(I) of the case stated

"It would be an absurd interpretation of the law if a carrier of special waste is not to be bound by Regulation 4(5) purely because he is transporting the waste to his own landfill site as opposed to transporting it to a site owned by another person. Similarly we found it would be an absurdity if a carrier of special waste was excused from completing part C of the consignment note purely because the producer of the waste had not prepared a consignment note."

It is contended, however, by the Appellants that such a consideration cannot displace the clear wording of Regulation 4(5). They say that where the wording of a statutory provision or a statutory instrument is plain then it must prevail and it is not open to the court to depart from it merely to remedy a perceived defect or anomaly. The Respondents contend that a company transporting material such as this can wear two hats. In one capacity he can be the "carrier" and in another capacity he is the disposer. That, say the Appellants, is misconceived and ignores the clear wording of the Regulations. The Appellants contend that if there was a lacuna in the 1980 Regulations it was for Parliament or the Secretary of State and not the court to amend the Regulations and fill the gap. This was in fact done by the Special Waste Regulations 1996 which replaced the 1980 Regulations with effect from 1 September last year. Under those Regulations the carrier, in relation to a consignment of special waste, is defined by Regulation 1(4) as meaning "the person who collects that waste from the premises at which it is being held and transports it to another place". There is no doubt, therefore, that had the Appellants been subject to that Regulation they would have had no defence to that part of the allegation being made against them. The Appellants contend however that the Regulations as drafted are perfectly intelligible and are able to be construed in a rational way. The fact that by construing them in that way there is produced an anomaly or a lacuna in the scheme as set out for controlling the disposal of special waste is not for the court to concern itself with. Certainly the Appellants say that the court should not redraft the definition of "carrier" so as to include the Appellants, which is what in fact the Justices in this case have done. They say that the deficiency in the Regulations has now been acknowledged and in the 1996 Special Waste Regulations the anomaly has been dealt with and the lacuna filled. The question posed for the opinion of the court by the Justices on the first information is in two parts. The first question is whether a person who transfers "special waste" from the premises at which it was produced to his own site for disposal is "a carrier" within the meaning of Regulation 4(5) of the Control of Pollution (Special Waste) Regulations 1980? I would answer that question simply "No". In those circumstances the second question posed does not arise for consideration.

I now turn to consider the second information. That information alleged that the Appellant unlawfully failed to take all such measures as are reasonable in the circumstances to prevent any contravention by any other person of section 33 of the Environmental Protection Act 1990, contrary to Section 34(1)(a) of the Environmental Protection Act 1990. It is important therefore to have regard to those two sections. Section 33 of the Act provides as follows:-

"1. Subject to subsection (2) and (3) below ........ a person shall not

(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

(b) treat, keep or dispose of controlled waste or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of (i) in or on any land or (ii) by means of any mobile plant except under and in accordance with a waste management licence;

(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health."

By sub-paragraph 6 of section 33 a person who contravenes sub-section 1 or any condition of a waste management licence commits an offence. I interpose to point out that not only was the Appellant not charged under the provisions of section 33(1) nor under section 33(6) but nor were United Overseas Ltd charged under section 33. They, like the Appellants, were only charged under section 34(1)(a). That section provides, so far as is relevant, as follows:-

1. Subject to sub-section (2) below............. it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste to take all such measures applicable to him in that capacity as are reasonable in the circumstances - (a) to prevent any contravention by any other person of section 33 above; ...............

(6) any person who fails to comply with the duty imposed by sub-section (1) above shall be liable (a) on summary conviction to a fine not exceeding the statutory maximum and (b) on conviction on indictment to a fine.

(7) The Secretary of State shall after consultation with such persons or bodies as appear to him to be representative of the interests concerned, prepare and issue a Code of Practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by sub-section (1) above..............

(10) a Code of Practice issued under sub-section 7 shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

It does not appear in this case that the Code of Practice issued under section 34(10) was referred to at the hearing before the Justices although it was referred to in the course of the hearing before us.

In so far as it is relevant paragraph A.1 of Annex A to the 1991 Code of Practice issued under section 34(7) provides as follows:-

"Those subject to the duty (of care) must try to achieve the following four things (a) to prevent any other person committing the offence of disposing of controlled waste or treating it or sorting it (a) without a waste management licence or (b) breaking the conditions of the licence or (c) in a manner likely to cause pollution or harm to health."

The Code issued in 1996 is in similar terms. The duty on the "carrier" therefore is, inter alia, to prevent the producer disposing of controlled waste to a site other than a site licensed to receive such waste.

It was submitted by the Appellants both to the Justices and to us that the "chain of responsibility" for waste is forward looking and that therefore the duty on the Appellants as a person carrying controlled waste did not extend to the prevention of a contravention of Section 33 by a person from whom the waste was received.

Two factors should be borne in mind. Firstly, sections 33 and 34 deal with "controlled" waste as opposed to "special waste" dealt with in the 1980 Regulations. Secondly, there is no definition of "carrier" either in the Act or the Code of Practice as there is in the Regulations.

It was not argued, indeed it could not be argued, that the Appellants, for the purposes of the 1990 Act and the Code of Practice issued under it, were not carriers. The Code and section 34 apply to a variety of people concerned in various ways and in various stages with controlled waste. They include, a person who imports, produces, carries, keeps, treats or disposes of controlled waste or a broker having control of such waste. If one selects from those various categories of persons the disposer, for example, and one asks what "forward looking" duty rests on him, it is difficult to find an answer. In my judgment, to exclude from the duty to prevent any contravention by any other person of section 33 persons who had earlier control of or contact with the waste is a wholly artificial way to interpret the section. It is to be noted that the duty imposed on e.g. the carrier, is to prevent contravention by "any other person" of section 33. I can see no reason to restrict the category of persons whose contravention is considered to those persons who come later in the chain. In my judgment, therefore, the answer to the first question posed relating to the second information is "Yes". The second question posed may involve consideration of the various practices adopted by, inter alia, the producer, the carrier and the disposer. They may be (although not here) three different persons but closely connected with each other in the context of controlled waste production, carrying and disposal. Their duty under the Code of Practice is set out in paragraph A1 of Annex A to the 1991 Code which we have already set out.

It may well be that one of the persons subject to the duty of care will appreciate that one of the other persons in contact with controlled waste is likely to breach the code or section 33 unless he takes steps to prevent it. If by failing to take such reasonable measures as are applicable to him in his capacity he fails to prevent contravention then he is in breach of the duty under section 34. I cannot, however, interpret section 34 to mean that no breach of it can arise unless an actual offence under section 33 has been committed by some other person.

It follows, therefore, that the answer to the second question posed relating to the second information is also in the affirmative.

However, the way in which the Crown alleged that the offence had been committed under that second information was that United Overseas Limited were dispatching special waste to the Appellant's site. They were therefore permitting special waste to be deposited on that land and that was not a site licensed to accept such waste. The waste, however, never was deposited on the Appellant's Dogsthorpe site and the Prosecution accepted that there was in fact no unlicensed deposit. As we have pointed out, United Overseas Limited were not charged with any offence under section 33 but they too were charged with an offence under section 34(1)(a). It is equally plain on the findings of fact of the Justices that no offence was committed because Mr Johnson, a chemist employed by Shanks & McEwan, found the waste to be special waste and diverted it to a site licensed to receive such special waste and notified the Cambridgeshire Waste Regulation Authority of the facts by sending them a non-confirming waste report by facsimile. It is also clear from the findings of the Justices by the amended paragraph 2(b) of the case that the driver, Mr Slater, who transported the skip and its contents recorded on his transfer note that the waste was "hazardous waste". He did this after leaving the premises of United Overseas Limited because he thought the waste was of a type (like extinguisher powder) which required deep burial because of a dust hazard. So in the light of the fact that no offence was committed because of the vigilance of Mr Johnson one has to ask in what respect is it alleged that the Appellants unlawfully failed to take all such measures that were reasonable in the circumstances to prevent any contravention by any other person of section 33 of the 1990 Act contrary to section 34(1)(a)? For my part I cannot see any finding of fact by the Justices which would justify a conviction on that information. No particulars have been provided as were requested by the Appellants, but it does not seem appropriate for us at this stage to remit the case to the Justices for further findings of fact. For my part I am content to approach the case on the findings already made and concisely set out in the statement of case. On the basis of those findings of fact, as I have already indicated, it seems to me that the answer to both questions posed relating to the second information is in each case "Yes", but since no breach of duty or failure such as would be necessary to uphold the conviction has been identified, the conviction on this information as on the first information must, in my view, be quashed.

LORD JUSTICE AULD: I agree. For the reasons given in the draft judgment, copies of which have been provided to the parties, the Court answers the first question in relation to the first information, "no". In those circumstances, the second question does not arise for consideration. As to the second information, the Court answers both questions "yes" and quashes both convictions. Is it Mr Lamming?

MR LAMMING: It is, my Lord, yes. My Lord, there are one or two supplementary matters arising from your Lordships' judgment. Firstly, I ask for confirmation that the quashing of the convictions carries with it the quashing of the orders for costs against my client's below.

LORD JUSTICE AULD: It should do normally. I do not know if Mr Collier has anything to say to the contrary, but subject to that, yes.

MR LAMMING: Secondly, I ask for an order of costs both here and below against the Respondent prosecutor.

LORD JUSTICE AULD: Mr Collier, is there anything you wish to say to either of those matters?

MR COLLIER: Simply this. It is a new issue and one which was properly brought to this court. I do not think I can take it further than that.

LORD JUSTICE AULD: You say you performed a public duty?

MR COLLIER: I trust I did.

LORD JUSTICE AULD: Mr Lamming, we shall simply quash the costs order below. We make no order in respect of those proceedings on this appeal, but we give you the costs of this appeal.

MR LAMMING: My Lord, in relation to the cost below. This, as your Lordship is aware, is a case where the prosecution (voices obliterated by loud hammering) I hope your Lordships can hear me?

LORD JUSTICE AULD: I can hear you, I will tell you if we cannot.

MR LAMMING: Where the prosecution was commenced by the Cambridgeshire County Council, the Regulations Authority, and taken over by the Environment Agency. Your Lordships have seen from the facts it was a prosecution that was launched following my clients themselves notifying the Agency rather than the authorities of the facts. It was a prosecution which your Lordships had no great enthusiasm for during argument back in May and wondered indeed why the prosecution had been brought in the circumstances. As your Lordships are aware, the Magistrates (voices obliterated by loud hammering) and this was proved in law, a decision your Lordships have reversed, then imposed no penalty on my clients, it was an absolute discharge.

My Lord, in those circumstances, I would submit that the Defendant Company, having been prosecuted in those circumstances, ought to be entitled to their costs of that failed prosecution, and not merely as to the costs of success on the appeal.

LORD JUSTICE AULD: You have had another shot and I expect

Mr Collier may feel entitled to reply. Is there anything more you would like to say about that?

MR COLLIER: My Lord, this. In my submission, a prosecution was properly brought, I repeat it was a new point of law, I accept that was before your Lordships' Court, but in my submission, my Lord, the prosecution costs ought not to be awarded against the prosecuting authority in circumstances wholly proper (voices obliterated by loud hammering) with the prosecution in the first place.

LORD JUSTICE AULD: That is what Mr Lamming is suggesting, is he not?

MR COLLIER: My Lord, in my submission it does not go that far. There were clear failings on behalf of the Appellant Company and the matter was properly brought before the Court. On a full investigation one can perhaps see why the Magistrates did not impose an actual penalty but, in my submission, my Lord, it is not proper for the Court to award the costs of the prosecution against the prosecuting authority.

MR LAMMING: My Lord, can I reply to that by saying there were no new facts which emerged during the hearing before the Magistrates that were unknown to the prosecution before it was decided to continue it. As your Lordships know, this was a case where it was my Clients' employee who notified the authority of the circumstances in the first place. In those circumstances, that is why I make the application that I do and invite your Lordships to consider it. I did not enlarge on it initially because it was a formal application, and I wanted to wait and see what my learned friend had to say by way of response.

LORD JUSTICE AULD: The orders will be as we have indicated. Thank you both. We apologise to you for the time that we have taken, this is largely due to our different commitments and getting us both together on the same day and in the same place.

MR COLLIER: My Lord, I thought that was probably the reason, thank you.