Case No: CO/2508/2002
Neutral Citation Number [2002] EWHC 2095 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 16 October 2002
Before :

THE HONOURABLE MR JUSTICE NEWMAN

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Between :

	ENVIRONMENT AGENCY	Appellant

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	R NEWCOMB & SONS LIMITED

AND

STEPHEN NEWCOMB	First Respondent

Second Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)

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Charles Morgan instructed by the Regional Solicitor, Environment Agency) for the Appellant
Alec Burns (instructed by Swinburne Maddison Solicitors) for the First and Second Respondents

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JUDGMENT
(As approved by the Court)
Mr Justice Newman : 

1.	This is an appeal by way of case stated from a decision of the magistrates sitting at Hartlepool Magistrates Court.  The magistrates acquitted the Respondents, being a company, R Newcomb and Sons Limited and one of its directors, Stephen Newcomb, of offences under the Environmental Protection Act 1990, brought by the Environment Agency (“the Agency).

2.	R Newcomb and Sons Limited (“the company”) owns the site at Newbourne Sidings, Coronation Drive, Seaton Carew, Hartlepool, the land in question having been purchased from Railtrack for company purposes; ultimately the creation of recreational facilities on the land in the form of a football pitch and a car park.  Stephen Newcomb has been at all material times Managing Director of the company.  Planning permission for the site to be used for recreational facilities and an attendant car park was granted on ll November l998.  Apart from its activity as a developer of the land for recreational purposes the company’s activities also included the hiring out of skips for household and business purposes and the disposal of the contents of the skips.

3.	Between 23 August and l5 September 2000 observations of activity at the site were carried out, as well as, observations of several skips belonging to the company situated outside various household and business premises.  The contents of the skips observed arriving at the site as well as the contents of skips seen outside household and business premises were photographed, noted and recorded.  In one instance only it would seem the evidence showed a skip capable of being identified at the time of its arrival at the site as one of the skips seen outside a household.  It is not known whether the photographs of other skips in situ outside domestic or business premises could lead to their identification, from the photographs of various skips arriving at the site, as being the same skips, but as will appear hereafter no point turns upon these details of evidence.

4.	 In addition to the activity of creating a football pitch at the site, the company was also engaged, at the site, in the activity of screening waste materials for the production of aggregates in their block making plant.  This activity was duly entered on the Public Register of Exempt Activities under paragraph l3 of schedule 3 to the Waste Management Licensing Regulations 1994 (the Regulations).  Further, although not entered on the register, the company was, at the date of the observations, preparing to carry on at the site the activity of creating wood chippings from pieces of wood.  No issue has been raised as to the legality of this activity and nothing therefore turns upon the presence of wood in deposits of waste brought to the site.

5.	The magistrates found as a fact that the respondent company received at the site on average, l0,000 to l5,000 tons of “pure inert material per month from Hartlepool Borough Council”.  The inert material comprised a variety of different types of material, all of which by reason of being inert it was common ground between the parties amounted to material which was suitable for the purpose of forming a foundation for a football pitch.

6.	It was common ground between the parties, as it would appear from the magistrates’ approach to the matter, that biodegradable waste material was not suitable for use as a foundation for the football pitch.  Biodegradable waste would include wood, but wood was used in the course of the activity of making wood chips.

7.	After the events observed and relied upon in support of the charges laid, namely on 4 October 2000, the appellant excavated l0 trial pits at the site.  In all but two of the trial pits materials were found that should not have been there.  Further, ground water samples were taken on the same date and the water was found to contain liquor known as leachate, which is a characteristic liquor, produced at landfill sites where biodegradable wastes are deposited.  There was no evidence to connect the deposits the subject matter of the charges before the magistrates with this evidence going to establish that biodegradable material had been deposited at the site.  

8.	In the course of meetings between representatives of the company and the appellant agency prior to 23 November l998, proposals were put forward by the company for the activity of screening waste materials for the production of aggregates for its block making plant and for the deposit of wastes in connection with the construction work, for the purpose of the provision of recreational facilities on the land, which the company had purchased and in respect of which it had obtained the appropriate planning permission.  In a letter dated 23 November l998 from the Agency, reference was made to these meetings and to the relevant sections of the Regulations and the letter went on to state:

“Consequently, it must be ensured that the conditions are complied with at all times, otherwise a waste management licence may become necessary to carry out this activity.

“In particular, I would like to draw your attention to the types of waste suitable for use with these exemptions.  Firstly, the exemption described in paragraph 13 does not allow for any material to be discarded if not suitable for the manufacturing process.”

	Then in bold and emphatic print, the following:

“In enforcing this aspect the agency will only permit the exemption if 95% or more of the wastes accepted on the site are used in the manufacture of aggregates.  Secondly, you will note that paragraph 19 part 8 states that wastes in question must be suitable for the purposes of the relevant work.”

Then the next paragraph of the letter continued as follows:

“It is therefore very important that care is taken to only permit waste types on site which contain suitable materials for both your aggregate manufacturing process, and for construction of the mounds, in both cases only inert construction/demolition wastes or rock, slag, ash, clinker should be used.  Biodegradable waste such as paper, wood, green wastes and plastics are not considered suitable for either purpose and should not be accepted on to the site.”

The conclusions and reasons of the magistrates

9.	The magistrates concluded that there were amounts of waste that fell outside the exemptions which the law provided in connection with this site, but accepted the submission that they were within a 5% working tolerance which the respondent had been led to believe would be acceptable.  The magistrates also concluded:

	“The amount of waste that was the subject of the charges was a tiny fraction compared to the average l0,000 to l5,000 tons of inert material deposited by contractors each month.”

	Specifically, they concluded:

	“In our view the waste matter that was not suitable for creating recreational facilities would have fallen within the 5% tolerance”  

	As a result the magistrates concluded:

	“Having reviewed all the evidence put before us we were of the view that the prosecution had not proved the offences beyond reasonable doubt.”

Issues

10.	There are two issues arising on the appeal.  First a question of construction and interpretation as to the meaning and scope of the provisions, which create exemptions having the effect of taking a deposit outside the ambit of the prohibition contained in section 33 of the Environmental Protection Act 1990.  Secondly, an issue as to where, on the facts of this case, the burden of proof lies, it being a prosecution relating to an allegation that there has been a breach of a prohibition in connection with waste disposal activities.

11.	Mr Morgan, who appeared for the appellant, in the course of carefully prepared submissions, submitted that it was apparent from the stated case that the magistrates appeared to have approached the matter by asking themselves the question whether or not the prosecution could prove beyond a reasonable doubt that (i) either the total amount of waste, the subject of all the charges, combined together exceeded 5% of the total amount of waste deposited on the mounds, or (ii) the total amount of waste, the subject of all the charges, in each skip exceeded 5% of the total amount of waste deposited on the mounds.  The charges related only to biodegradable waste.  I agree that this was part of the magistrates’ approach, but having regard to the conclusion that the amount of waste the subject of the charges was a tiny fraction compared to the total tonnage of inert material deposited each month, in my judgment, it is not entirely clear that the question they asked themselves was directed to the amount deposited on the mounds during the same period of time, or whether it related to the ultimate volume of the mounds as and when the site would be complete for the purposes of being turned into a football pitch.  Whichever it was I am entirely satisfied that the magistrates fell into error.  Section 33 of the Environmental Protection Act l990 (so far as relevant to the issues on this appeal) creates a prohibition on unauthorised deposits of controlled waste.  It provides in sub section l as follows:

	“(1)	Subject to subsection (2) and (3) below and, in relation to Scotland, to section54 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 …”

12.	Each of the charges laid against the respondents was in connection with a specific deposit alleged to have taken place on a particular date and at a particular time.  It is plain that the conduct falling to be scrutinised in the criminal proceedings was the making of each and every deposit. The volumetric proportion between the deposit and the mounds at the site was completely irrelevant.  For example, a skip containing nothing other than biodegradable material (other than wood), say, nothing other than PVC or plastic drain pipes, could not be regarded as within any relevant exemption simply because the skip was going to be deposited upon a large volume of inert material which was pure in the sense that it contained no biodegradable material.  As to the “5% tolerance”, it has to be said that although the letter of 23 November l998 contained a reference to permitting “ … the exemption if 95% or more of the wastes accepted on the site are used in the manufacture of aggregates”, the structure and content of the statutory provisions creating the exemptions contains no reference to any tolerance or any latitude.  The magistrates approached the construction and interpretation of these provisions (to which I must come) treating the letter of 23 November 1998 as an aid to construction.  They were plainly wrong to do so, but that is not to say that its contents were entirely irrelevant.  It could have been relied upon in mitigation after conviction.  It may or may not have enabled an application to have been made to stay the prosecution on the grounds that it was an abuse of process.

The legislation

13.	In summary, section 33(l)(a) of the Act, read together with section 33(6) creates, amongst others, the offence of knowingly causing the deposit of controlled waste 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.  “Controlled waste” is defined in section 75(4) of the Act as meaning “household, industrial and commercial waste”, each such category being in turn defined in section 75.  Section 33(3) of the Act disapplies section 33(1) in cases prescribed in regulations made by the Secretary of State.  The regulations material to this case are, the Waste Management Licensing Regulations l994 (the Regulations) and Regulation l7 disapplies section 33(1)(a) of the Act in relation to (amongst other things) the carrying on of “an exempt activity”.  An exempt activity is defined as any of the activities set out in schedule 3.  The relevant paragraph in schedule 3 is paragraph 19.  So far as is relevant to this appeal, the exempt activities set out in paragraph l9 of schedule 3 include 

“(i) the storage on a site of waste which arises from demolition or construction work or tunnelling or other excavations, or which consists of ash, slag, clinker, rock, wood or gypsum, if – 
(a)	the waste in question is suitable for use for the purposes of relevant work which will be carried on at the site; and
		(b) 	…

(ii) the use of waste of a kind mentioned in sub-paragraph (i) above for the purposes of relevant work if the waste is suitable for those purposes.
	(iii) 	…
	(iv)	in this paragraph, “relevant work” means construction work, including the deposit of waste in land in connection with-
	(a) the provision of recreational facilities on that land;… but not including either any deposit of waste in any other circumstances or any other work involving land reclamation.”
In paragraph 13 of schedule 3 an exemption is created which is in the following terms:
“1.	The manufacture from –
(a)	waste which arises from demolition or construction work ….;  or
(b)	waste which consists of ash, slag, clinker, rock, wood, bark, paper, straw or gypsum;  
of timber products, strawboard, plasterboard, bricks, blocks, roadstone  or aggregate.”
14.	Applying the above provisions to the circumstances of this case it is plain the Agency contended that the company had knowingly caused the deposit of controlled waste and that Mr Newcomb consented to the deposit by the company, on land to which the prohibition in section 33 subsection 1 of the Environmental Protection Act l990 applied.  There was in respect of that land no Waste Management Licence for the deposit.  Each of the charges laid so expressed the position, for example, that on a certain date at a certain time the company “knowingly caused controlled waste, namely plastic, card, packaging and bag materials, to be on land ….  when a Waste Management Licence authorising the deposit was not in force”.  There being no Waste Management Licence in force authorising the deposits which were made, for the prosecution to succeed it was essential for it to establish that section 33(1)(a) applied to the land and to the deposits and that the Secretary of State had not, in regulations made by him, disapplied section 33 to such land and the deposits.  As will appear later from this judgment how the burden of proof is to operate in a prosecution in a Magistrates Court in a matter such as this should be decided on a case specific basis.  In this instance the charges specified the waste, the deposit of which was prohibited (biodegradable material) and it follows the prosecution had the burden to prove the facts laid as constituting the offence.
15.	Because of the global approach to the evidence adopted by the magistrates, in connection with the deposits and the state of the site, no precise attention appears to have been paid to the evidence in connection with the contents of each and every skip or deposit the subject matter of a charge.  Examination of the photographs relating to the one skip identified outside a household and later at the site is sufficient to demonstrate that biodegradable material was in the skip.  There was other supporting evidence derived from the observations of skips arriving to deposit material at the site.  Such evidence was available to support the conclusion of the magistrates that “ … waste matter … not suitable for creating recreational facilities …” was deposited at the site.  I assume that the magistrates considered it and for that reason concluded that the apparent volume would have fallen within the 5% tolerance which they believed had been permitted.
16.	Mr Burns, counsel for the respondents, accepted that, it having been found that biodegradable material had been deposited at the site, if the magistrates had erred in their interpretation of the statutory provisions, it is clear that the respondents should have been convicted on one or more charges.  After discussion between counsel, encouraged by the court, the Agency agreed that it had no continuing interest in the case being remitted for further consideration by the original or any magistrates court, particularly since the respondents had agreed to pay the costs of the appeal and the costs in the magistrates’ court, but wished the court to deliver a judgment on the two issues which were of some general importance in this field of law.  The court approved of that course and assessed the costs in the court below at £4000.
17.	I should now turn to the questions for the opinion of the court, which I shall set out:
“(1)	Whether the Magistrates were right in law to have regard to the letter date (sic) 23 November 1998 from the Agency to R Newcomb & Sons Ltd in either:
(a)	construing the meaning of paragraphs 13 and/or 19 of Schedule 3 to the Waste Management Licensing Regulations 1994;  or
(b)	applying the provisions of those paragraphs to the primary facts of the case as found by them;
	(1A)	Whether the magistrates were correct in law when
(a)	construing the scope, meaning and extent of the exemption created by paragraph 19(2) Schedule 3 of the Waste Management Licensing Regulations, 1994;
	in proceeding on the basis that whether or not waste was ‘suitable for use’ within the meaning of paragraph 19(2) was to be determined not be (sic) reference to the constituents of each such deposit under consideration taken alone but by reference to and comparison with the overall constituency and amount of waste being deposited.
(2)	Whether there was any and, if so, what evidence upon which the Magistrates could properly and reasonably find in the case of each deposit the subject matter of a charge that such deposit was within the exemptions afforded by either of those paragraphs in that it consisted of waste:
	(a)	which had either:
(i) arisen from demolition or construction or tunnelling or other 	excavations;  or
		(ii) consisted of ash, slag, clinker, rock, wood or gypsum;  and
(b)	was suitable for the purpose of landfill for the creation of football pitches;
(3)	Whether, having received and accepted all the evidence given by officers of the Agency concerning the contents of the deposits the subject matter of each of the charges against each of the defendants, the Magistrates could reasonably and rationally go on to reach the decision that such deposits were within the exemptions afforded by either of those paragraphs.
18.	Section 33 of the Environmental Protection Act l990 creates two systems whereby control can be exercised over the deposit of controlled waste, namely, a Waste Management Licence and the creation by regulations made by the Secretary of State, of exemptions.  Whereas conditions can be applied to the grant of a licence the extent of an exemption has to be taken as it is set out in the regulations.  The letter of 23 November did not purport to qualify the relevant exemptions applying to the respondents as laid out in the 1994 Regulations, but did state in connection with the waste to be deposited pursuant to the two exemptions (block making and the provision of recreational facilities) as follows:
	“In enforcing this aspect the Agency will only permit the exemption if 95% or more of the wastes accepted on the site are used in the manufacture of aggregates.  Secondly, you will note that paragraph l9(a) states that wastes in question must be suitable for the purposes of the relevant work.”
	Although the latter lacks clarity it seems to me that, contrary to the submission of Mr Morgan, the latitude, which was being suggested before enforcement could arise, was in connection with the manufacture of aggregates (paragraph 13) and the football pitches (paragraph 19).  The following paragraph of the letter is clearer in this regard and made it sufficiently plain that “ … biodegradable wastes such as paper, wood, green wastes and plastics are not … suitable … and should not be accepted onto the site.”
19.	The magistrates obviously interpreted the letter as stating that so long as 95% of the total amount of the waste deposited for the manufacture of aggregates and the football pitches was free of biodegradable material the exemption would apply.  Thus the magistrates concluded they need pay no particular attention to the precise contents of each deposit but only to the global result.   The Agency had no power to alter the terms of the exemption created by the Regulations which govern each deposit and provide for no latitude or tolerance.  I have heard no argument about the application of the de minimis principle but should not by this judgment be taken to have excluded its application.  It must follow that the answer to Question l at (a) and (b) is “no”.  They erred in law in so doing.
20.	The court readily understands that for practical purposes it may seem desirable for some form of pragmatic accommodation to be reached between the Agency and a depositor of controlled waste.  Depositors may be very keen to achieve some tolerance in connection with deposits so as to relieve them from onerous sorting obligations.  It is not for this court to attempt to lay down the boundaries to be applied in reaching such an accommodation but the Agency should have in mind that subject to a de minimis consideration the provisions do not allow for derogation from strict requirements and as this case amply illustrates, if anything is agreed, needless to say it must be in writing, but when so reached great care must be taken in the drafting and it must be perfectly clear and lacking in ambiguity.  If couched in terms of an undertaking not to enforce the law by a prosecution it could also give rise to arguments in any proceedings which are taken that the proceedings amount to an abuse of process.  The court notes that paragraph 5.18 of Waste Management Paper No.4 – “Licensing of Waste Facilities” published by the Department of the Environment states in relation to licensing conditions:  “Conditions which set arbitrary  limits – for example, on paper and cardboard, typically at 5% or 10% of the waste input – in order to allow an amount of accidental or adventitious contamination, are ineffective and unenforceable:  they must not be used.”
21.	As to the second question, the waste which fell to be considered for its “suitability”, as defined by paragraph 19(2) of the Regulations, was the waste comprising each of the deposits made the subject of a charge.  For the reason already given the content of amount of waste already deposited or to be deposited was irrelevant.
22.	As to the third question (numbered 2) there was evidence that waste outside the exemptions had been deposited but the magistrates’ enquiry appears to have been limited.  The question cannot be otherwise answered and had it been necessary to do so because the case was to be remitted, further evidence may have been required.
23.	As to the last question (numbered 3) having regard to the conclusion reached by the magistrates that waste not within the exemptions had been deposited, the answer is “no”.
Issue 2
24.	A question was subsequently placed before the Magistrates’ Court and was confirmed by it in connection with the burden of  proof, as follows:
	“‘Whether in view of the provisions of Section 101 of the Magistrates Courts Act 1980, the Magistrates were correct in law in treating the Appellant as under a burden to prove beyond a reasonable doubt that the Respondents were not entitled to the benefit of the exemption afforded by paragraph 19 of Schedule 3 to the Waste Management Licensing Regulations 1994.’”
25.	Mr Morgan submitted in his Skeleton Argument that “… since the prosecution had proved deposits of controlled waste, the burden was upon the Respondents, absent any licence, to prove on a balance of probabilities that the deposits were in relation to the carrying out of an exempt activity”.
26.	Since the entry into force of the Human Rights Act 1998 and the cases of R v Lambert [2001] UKHL 37; [2001] 3 WLR 206 and Environment Agency v M E Foley (Contractors) Ltd [2002] EWHC 258; [2002] EnvLR 27 675 it is plain that the question raised in connection with the burden of proof falls to be answered by reference to the facts of this case – the exercise requires “case specific” determination.
27.	In Foley the defendants had been prosecuted for offences under Section 33(1)(a) of the Environmental Protection Act 1990.  There were two sites, one covered by a waste management licence, the other covered by an exemption under the 1994 Regulations.  “Special waste” was excluded by the terms of the Licence at the site covered by a licence.  Further, by reason of it being “special waste”, as defined, it was outside the exemption applicable to the deposit of controlled waste at the other site.  Auld LJ held in connection with the site controlled by a licence, that
“ .. it was for the prosecution to prove that ‘the defendant’ … had delivered special waste, namely contaminated soil, but not that it had done so without prior written approval.  The latter, negative averment, was of a matter peculiarly within the first respondent’s knowledge and it was for it to establish the requisite approval on a balance of probabilities if it sought to challenge the prosecution case in that respect. 
“In the case of the first respondent .. and the second respondent when accepting deliveries to that site [the site covered by an exemption] it was for the prosecution to prove that the waste … contained special waste, namely contaminated soil, thus taking it outside the exemption.”
28.	In my judgment the reasoning of Auld LJ in relation to the site controlled by the exemption in Foley, applies to the exemption site in this appeal.  In my judgment the effect of section 33 of the 1990 Act, so far as it confers a power on the Secretary of State to create exemptions to the general prohibition, is that a deposit of controlled waste falling within the exemption is not prohibited.  It follows that if the prosecution allege there has been a prohibited deposit it is for the prosecution to prove the facts which take the deposit outside the exemption and render it a prohibited deposit.  In this appeal the prosecution had to prove that the deposit or deposits contained waste not suitable for the exempted purpose of being used for recreational purposes.  The charges identified the waste which was prohibited.  Having regard to the system of registration established by the Act, and the contact between the Agency and the defendant, plainly there was no difficulty in the way of the Agency being aware of the relevant exemptions relating to the site where the deposits were made.  It follows that it was not for the respondents to show on the balance of probabilities that the deposits were in relation to the carrying on of an exempt activity.
29.	I have reached my conclusions on the burden of proof without reference to section 101 of the Magistrates Courts Act 1980, because the regime of the prohibition imposed by section 33 of the 1990 Act so far as it affects exempt deposits so requires.
30.	It follows that the appeal succeeds but save as to the costs of the appeal and the costs below,                                                                                                                                                                      (assessed at £4000) which are to be the appellant’s, no further order is made.
MR JUSTICE NEWMAN:  Morning, Mr Morgan.  Thank you for coming.  Thank you also for your notes that you sent to me.  I was prompted, as a result, to alter the judgment to make it perfectly plain, I think probably it had not quite got across, that the approach on the burden of proof in these cases is, as has been stated, a case-by-case, case-specific basis.  Therefore so far as the burden of proof is concerned, my decision turns on the prosecutions which were advanced in this case, obviously with some general consequences so far as other prosecutions are concerned, so far as the facts are in pari material.In this case, the prosecution alleged, in respect of each of the charges, the actual content of the controlled waste which they said was prohibited.  They identified it in each of the charges.  Therefore that was lying behind the judgment, and I have made I hope that plain, in what you have now seen.  Have you seen the judgment as I am handing it down?
31.	MR MORGAN:  My Lord, I have not.
32.	MR JUSTICE NEWMAN:  That is what I have done, so I am glad I mentioned this to you now.
33.	MR MORGAN:  I am most obliged.
34.	MR JUSTICE NEWMAN:  Thank you very much indeed.
35.	For the reasons given in a judgment which I now hand down, this appeal by way of case stated succeeds, and the orders are as they were agreed in the course of the trial, namely that there be no remission to the magistrate court, but that the costs of the appeal and the costs below will be paid by the first and second respondents.  In the judgment in paragraph 30 it says "limited to £4,000", in fact I assessed them at £4,000.  So that is altered "assessed at £4,000".
36.	Subject to that, the judgment is handed down.  Thank you very much indeed.
37.	MR MORGAN:  Thank you, my Lord.  
38.	MR JUSTICE NEWMAN:  Thank you very much for your help throughout in this case.
39.	MR MORGAN:  Thank you, my Lord.