CO/5134/2004 
Neutral Citation Number: [2005] EWHC 633 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 22nd March 2005
 
B E F O R E:

LORD JUSTICE ROSE

MR JUSTICE HOLLAND

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THE ENVIRONMENT AGENCY
(CLAIMANT)

-v- 

ARMSTRONG ENVIRONMENTAL SERVICES LTD
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR HARRIS (instructed by THE REGIONAL SOLICITOR, THE ENVIRONMENTAL AGENCY) appeared on behalf of the CLAIMANT
MR LAPRELL (instructed by BACKHOUSE JONES) appeared on behalf of the DEFENDANT
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J U D G M E N T
MR JUSTICE HOLLAND:   

Introduction 
1.	This matter arises out of the following procedural history:
3rd September 2003.  Upon the prosecution of The Environmental Agency (the present Appellants) Armstrong Environmental Services Ltd (the present Respondents) were convicted by Wigan and Leigh Justices for that on or before the 6th November 2002 they had knowingly caused controlled waste to be deposited on waste land known as Link 25 off Wigan Road, Ashton-in-Makerfield in breach of s. 33(1)(a) and (b) Environmental Protection Act 1990.
12th December 2003.  Bolton Crown Court (Mr Recorder Foster QC, as he was then was, and Justices) allowed an appeal against the conviction.
Subsequently the Crown Court stated a Case - there is now an appeal by way of Case Stated against the ruling.
The Facts 
2.	As found by the Crown Court, the facts are in short compass.  The land at Link 25 was occupied by the Respondents.  On the 6th November 2002 the site was visited by an Environment Protection Officer, Mr Shelton.  He saw and photographed a large pile of ‘timber waste’: plain, painted and varnished wood, chipboard panels, melamine boards and plywood, totalling in weight less than 1,000 tonnes.  It was the Respondents’ case, as accepted by the Court, that it was their intention to reduce this material to chips for subsequent disposal as bedding for animals, alternatively for fuel, alternatively for the manufacture of chipboards.
The Law
3.	By s. 33 Environmental Protection Act 1990 it is provided, so far as relevant:
“(1) Subject to subsection...(3) below...a person shall not- 
(a) deposit controlled waste...unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence.
(3) Subsection 1(a)...above (does) not apply in cases prescribed in regulations made by the secretary of State... 
(6) A person who contravenes Subsection (1) above commits an offence. 
I interpose.  It is common ground that by reference to the relevant statutory definition that which Mr Shelton found and photographed amounted to a deposit of ‘controlled waste’.  Yet further, there is no dispute but that there was no authorisation of such deposit by any waste management licence.
4.	Through s. 33(3) the focus then turns to regulations made thereunder, the Waste Management Licensing Regulations 1994.  By Regulation 17:
“(1) Subject to the following provisions of this regulation and to any conditions or limitations in Schedule 3, Section 33(1)(a)...of the 1990 Act shall not apply in relation to the carrying on of any exempt activity set out in the Schedule.
(4) Paragraph (1) above only applies in relation to an exempt activity involving the disposal or recovery of waste by an establishment or undertaking if the type and quantity of waste submitted to the activity and the method of disposal or recovery are consistent with the need to attain the objectives mentioned in paragraph 4(1)(a) of Part 1 of Schedule 4.”
5.	It is helpful to turn to the latter paragraph before identifying the relevant paragraphs of Schedule 3.  Per Paragraph 4(1)(a):
“For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste-
(i) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without 
(ii) causing nuisance through noise or odours; or 
(iii) adversely affecting the countryside or places of special interest.”
	Before departing from this Paragraph it is pertinent to      cite paragraph 1(3)(b):
 “The following further objectives are relevant in relation to functions under the plan-making provisions-
(b)	encouraging  
(i)	the recovery of waste by means of recycling, reuse or reclamation or any other process with a view to extracting secondary raw materials; and
(ii)	the use of waste as a source of energy.”
6.	I am now in a position to turn to the exempt activities specified in Schedule 3.  So far as presently material they include:
“Paragraph 13(1).  The manufacture from... 
(b) waste which consists of ash, slag clinker, rock, wood, bark, paper, straw or gypsum, of timber products, straw board, plaster board, bricks, blocks, road stone or aggregate
(4) The storage of waste which is to be submitted to any of the activities mentioned in sub-paragraph 1...above if 
(a) the waste is stored at the place where the activity is to be carried on; and 
(b) the total quantity of waste stored at that place does not exceed 
(ii)...20,000 tonnes.
14(1) The manufacture of finished goods from any kind of waste, namely... wood... 
21(1) Chipping, shredding, cutting or pulverising waste plant matter (including wood or bark) or sorting and baling sawdust or wood shavings if-
 (a)	those activities are carried on for the purposes of recovery or reuse; and 
(b)	no more than 1,000 tonnes of such waste are dealt with on those premises in any period of seven days.
 (2) The storage of waste in connection with any activity, mentioned in sub-paragraph (1) above at the premises where it is carried on if the total amount of waste stored at those premises does not at any time exceed 1,000 tonnes.
The Issues 
7.	Granted that there was an unlicensed deposit of controlled waste on the Respondents’ land, did the further facts as found by the Crown Court disclose justification on the basis of an exempt activity?  A preliminary point arises.  S. 101 Magistrates Courts Act 1980 provides:
“Where the Defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negating the exemption, exemption, proviso, excuse or qualification.”
In deference to this section, the case proceeded through the lower Courts and before us on the basis that it was for the Respondents to prove that the facts as found disclosed an exempt activity doing so on balance of probability.  In the course of submissions, Mr Harris for the Appellant properly drew attention to obiter observations of this Court in Environment Agency v. M.E. Foley Contractors Ltd and Another (2002) 1 WLR. 1754 at 1763 to the effect that the onus of proof of a particular exemption falls to be allotted on a case by case basis.  For the Respondents, Mr Laprell did not seek in the circumstances of this case to resile from the concession that had hitherto prevailed, rightly, as I think.  I approach this case on the basis that it is for the Respondents to prove on balance of probabilities facts which on a proper construction of the Regulations disclose an exempt activity.  However I think it right to add that a ‘proper construction’ connotes a construction that withstands the rigours inevitably attendant upon statutory construction in the context of a criminal prosecution: on a ‘proper’ construction is that which has been proved by the Respondents clearly outwith the ambit of any exempt activity? 

8.	Before the lower Courts, the Respondents principally relied upon Paragraph 13, contending that the facts as proved by them disclosed storage of the waste in a quantity substantially less than 20,000 tonnes at the place at which they were manufacturing from ‘wood’ a ‘timber product’, viz woodchips.  Their secondary case relied upon Paragraph 21: what was stored with a view to chipping constituted ‘waste plant matter’.  In the event the Crown Court found with respect to Paragraph 13:
“There was less than 1,000 tonnes of the relevant waste on the site at Link 25 and it was the intention of the Respondent at the time the waste was deposited on the site that it would be turned into woodchip on that site... The timber waste came from a variety of sources, all or in large part, derived from natural wood to begin with.  Woodchip is used for several purposes namely as a feedstock for fibreboard, cattle bedding or as a boiler fuel.  We conclude that the process is clearly a manufacturing process from waste, which consists of wood, and for the manufacture of a timber product.  We do not find that manufacture needs to involve production of an end product.  There are many instances where goods are manufactured for use in another manufacturing process.  Woodchip is a timber product. We are therefore of the opinion that an exemption under Paragraph 13 is clearly made out.”
	With respect to Paragraph 21 the Court found:

“...the overall conclusion by majority is that the process is again exempt.  We accept that the author of the Regulations may (not) have intended Paragraph 21 to apply to waste plant matter of the type claimed by this (Respondent).  If that was the intention it is not clearly so stated and the interpretation is capable of being made for the process to be exempt.”
9.	Before this Court, Mr Harris cogently submitted that these rulings were wrong in law, reflecting flawed construction of both paragraphs.  Specific to Paragraph 13, he submitted that woodchip as potentially produced from the deposited waste could not properly be categorised as a ‘timber product’.  ‘Wood and ‘timber’ were capable of being distinguished (and he cited from the Oxford English Dictionary) and full perusal of this and associated paragraphs suggested that the draftsman was alive to that distinction.  He had chosen to refer to a ‘timber product’ rather than a ‘wood product’ because all that could be envisaged as exempt ‘manufacture of timber products’ from waste wood was the preparation of timber so as to be ready for use in construction.  Woodchip was not a ‘timber product’ and in any event did not reflect ‘manufacture’ but at best a stage in a manufacturing process.  Turning to Paragraph 21, he submitted that the deposited waste could not conceivably be categorised as ‘waste plant matter’.  There was a time when it was ‘plant matter’ (albeit probably not ‘waste’) but that was self evidently no longer the state of affairs.
10.	Mr Harris drew additional attention to the genesis of this legislation as the E.E.C. Council Directive of the 15th July 1975 which, as he submitted, identified “the protection of human health and the environment against harmful effects caused by the...treatment, storage and tipping of waste” as the... “essential objective of all provisions relating to waste disposal”, see the Preamble.  This and the consequent regulatory provisions invited caution before identifying conversion to woodchips as an exempt activity rather than an activity commanding control by licensing, not least when, as the Crown Court found, the waste included potentially extraneous material such as melamine board.
11.	For the Respondents, Mr Laprell’s submissions understandably amounted to a forceful endorsement of the Court’s ruling.
Judgment 
12.	I start by construing Paragraph 13 in isolation.  I have no doubt but that upon a natural construction of its terms reducing waste wood to woodchips amounts to the “manufacture from waste which consists of ... wood ... of timber products”, and is therefore an exempt activity.  As to this, first, the draftsman envisaged and allowed for the manufacture from waste of timber products and, adverting to his categories of ‘waste’ that could only be achieved from ‘wood’ or ‘bark’.  So far from there being some dichotomy for drafting purposes between ‘wood’ and ‘timber’, the paragraph plainly sees the latter as a potential product of the former.  Second, in my judgment, there is nothing in the point that woodchips may not be a final product but a stage towards the manufacture of such. ‘Manufacture’ does not necessarily connote final production - it is not difficult to think of industries featuring individual ‘manufacturers’ each making a staged contribution to the evolvement of a final product; tailoring comes to mind.  However any doubt is resolved by the draftsman:  whereas in Paragraph 13 he specifies ‘manufacture’ simpliciter in the next ensuing Paragraph 14 he identifies as a separate exempt activity “manufacture of finished goods” from various kinds of waste.
13.	As urged by Mr Harris I have tested the results of textual analysis with consideration of the Directive and resulting policy provisions.  I can discern no reason to condemn the manufacture of woodchips from waste as outwith the aims of the Directive and I particularly note the specific inclusion of this form of manufacture in the exemption created by Paragraph 21.  In environment terms, I cannot conceive of any meaningful difference between the manufacture of woodchips from waste wood and that from waste plant matter.  True, as Mr Harris pointed out, the Crown Court found that the deposited waste include not just wood but also melamine but I am not prepared to accept his invitation to attach some potential environmental significance to the chipping of this material.  If there is a point here it could have been raised during the taking of evidence in the Crown Court (there was forewarning of it from the hearing before the Justices) and findings could have been made as to amounts of melamine and its potential significance, if any.
14.	It follows that with respect to so much of the case as was founded upon Paragraph 13 (the exempt activity and storage in anticipation of such) I would dismiss this Appeal.
15.	Turning to so much of the Case as invoked and relied upon Paragraph 21, I have to align myself with the minority of the Crown Court.  In my judgment ‘waste plant matter’ is clearly an entity different from ‘waste wood’ and indeed from that which is depicted in the photographs.  I reject as farfetched an argument that all wood was once ‘plant matter’, waste or otherwise, so be encompassed in the draftsman’s intentions and I think that the logic of my construction of Paragraph 13 is to allocate to Paragraph 21 a different ambit.  ‘Waste wood’ is to be distinguished from ‘waste plant matter’:  we are concerned with the former, we are not concerned with ‘waste plant matter’. Whereas I so find for the appellants on this issue, overall I would dismiss this appeal.
16.	THE VICE PRESIDENT:  I agree. For the reasons given by my Lord, this appeal must be dismissed. 
Order: Appeal dismissed with costs