Walker & Son (Hauliers) Ltd v Environment Agency

This appeal against conviction raises a short point on the effect of Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2007 (‘the 2007 Regulations’) .

The Appellant (‘the Company’) was charged on count 8 of an indictment.

Statement of Offence

Knowingly permitting the operation of a regulated facility without an environmental permit, contrary to Regulation 38(1)(a) of [the 2007 Regulations]

Particulars of Offence

Walker & Son (Hauliers) Ltd, between 12^th day of October 2009 and 5^th day of April 2010, on land at the former Dormer Tools site, Shireoaks Road, Worksop, knowingly permitted the contravention of Regulation 12 of [the 2007 Regulations] by knowingly permitting the operation of a regulated facility, when no environmental permit was in force.

Regulation 38 of the 2007 Regulations provides:

(1)

It is an offence for a person -

(a)

to contravene, or knowingly cause or knowingly permit the contravention of, regulation 12;

(b)

to fail to comply with or to contravene an environmental permit condition.

Regulation 12 is to the following effect:

Requirement for an environmental permit

12.

No person may operate a regulated facility except under and to the extent authorised by an environmental permit.

The Prosecution case is that all that is needed to prove the offence under Regulation 38 is that a defendant knowingly permitted a particular waste operation, and that as a matter of fact the waste operation was not in accordance with an environmental permit.

The Defence case is that the Prosecution have to prove two things: first, that the defendant knowingly permitted the particular waste operation; and secondly, that it knew that the operation was not in accordance with an environmental permit.

The appeal arises from the Company’s plea of guilty to count 8 on 31st January 2013 on re-arraignment, following a ruling by HH Judge Lea.

A similar charge, brought under the Environmental Permitting (England and Wales) Regulations 2010 (‘the 2010 Regulations’) for the period 6 April 2010 to 26 April 2010, was ordered to lie on the file in the usual terms.

The facts giving rise to that plea were these.

In July 2008 the Company purchased, through a trust, the former site of Dormer Tools in Worksop with a view to redeveloping the site; and in around August 2009 awarded a contract for the demolition of the empty buildings on the site to Bloom (Plant) Ltd.

In September 2009 Bassetlaw District Council began to receive complaints from local residents about fires on the site and ‘acrid and choking’ fumes. The site was observed and it could be seen that activities were taking place which should have been the subject of an environmental permit, including burning.

The site was being used by Bloom (Plant) Ltd as an illegal waste transfer station and for the burning of waste. Waste was imported illegally onto the site, non-compliant aggregate was illegally manufactured from waste crushed on site and asbestos was found mixed with crushed material.

Neither the Company nor its employees were involved in the illegal transfer of material to the site, nor in the treatment, burning or crushing of the waste. The Company, by its director Richard Walker, gave an interview under caution. He explained that he had driven around the site from time to time to see the progress of the demolition and had seen fires and crushing machines, but these were consistent with the burning of wood from the demolition works and the crushing of concrete as part of the contracted works.

The Company was subsequently charged with the offences of knowingly permitting the operation of a regulated facility without an environmental permit contrary to the 2007 Regulations and the 2010 Regulations. Although the latter had replaced the former during the relevant period, there was no material difference between the provisions.

A number of co-defendants, including Bloom (Plant) Ltd, pleaded guilty to various offences on 24 September 2012.

On 30 January 2013, Judge Lea heard legal argument on the proper interpretation of the words ‘knowingly permit’ in Regulation 38(1)(a); and on the following day ruled in favour of the Prosecution.

The issue before the Judge was relatively confined, since the Company admitted being aware of waste operations being carried out at the site, both in interview and in the Defence case statement.

It focussed on the meaning of the words, ‘knowingly permit’ in Regulation 38(1)(a). The Prosecution contended that it had to prove 4 matters: (i) that waste operations were taking place on site, (ii) that those waste operations were unlawful, (iii) that the defendant was aware of those waste operations, and (iv) that the defendant failed to take any steps to prevent those waste operations. The Defence submitted that the Prosecution had to prove a fifth matter: (v) that the defendant knew that the waste operation was not authorised by an environmental permit.

On 31 January the Judge ruled that a jury would need to consider three matters (p.6B-6F of the Ruling):

Following this ruling the Company pleaded guilty to Count 8 on a written basis which was acceptable to the Prosecution, reserving the possibility that it might seek permission to appeal, which it does with the leave of the Single Judge.

The appeal is concerned with the two words, ‘knowingly permit’, and although it is not necessary to refer to all of it, the Court has benefitted from a considerable amount of material deployed by the parties on the interpretation of this phrase.

The Regulations are made under powers conferred by the Pollution Prevention and Control Act 1999. We understand that Regulations are used in order to enable European legislation to be more easily brought into force.

The words in Regulation 38(1)(a) do not yield an immediate answer to the issue in the present case as a matter of first impression, since they are capable of bearing either interpretation.

However, words similar to those in Regulation 38(1)(a) have been used in previous enactments dealing with the control and prevention of pollution; and it is enlightening to see how these earlier provisions have been interpreted by the Court.

In Ashcroft v. Cambro Waste Products Ltd [1981] 1 WLR 1349 the Divisional Court (Lord Lane CJ, Boreham and Woolf JJ) was concerned with s.3(1)(a) of the Control of Pollution Act 1974, the relevant words of which provided:

... a person shall not (a) ... knowingly permit controlled waste to be deposited on any land ... unless the land on which the waste is deposited ... is occupied by the holder of a licence issued in pursuance of section 5 of this Act ... which authorises the deposit ... and the deposit ... is in accordance with the conditions ... specified in the licence.

The issue before the Court was whether it was necessary for the Prosecution to prove knowledge of the breach of the condition of the licence. Boreham J concluded (at p.1355H) that it was not. The offence was committed if the defendant knowingly permitted the deposit of controlled waste,

... unless in fact such deposit is in accordance with the conditions of a valid licence. I do not see how, as a matter of ordinary English, the words ‘knowingly permit’ or their effect can be imported into the exception clause in the present case.

Lord Lane CJ and Woolf J agreed.

The Control of Pollution Act 1974 was replaced in large measure by the Environmental Protection Act 1990; and in Shanks & McEwan (Teesside) Ltd v. Environment Agency [1999] QB 333, the Divisional Court (Kennedy LJ and Mance J) came to consider the successor provisions to s.3(1)(a) of the earlier Act: namely, s.33(1)(a) of the later Act. Section 33(1)(a) of the Environmental Protection Act 1990 provided:

... a person shall not (a) ... knowingly permit controlled waste ... to be deposited in or on any land unless a waste management licence authorizing the deposit is in force and the deposit is in accordance with the licence.

One of the issues on the appeal was whether the knowledge required by s.33(1)(a) went to the breach of the condition of the licence as well as the fact of the deposit of the controlled waste (see p.342G). The Court concluded that it did not.

In the course of his judgment, Mance J made clear that the structure of the section was that once a defendant knew that the controlled waste was deposited on the land, ‘the strict obligation imported by the rest of section 33 comes into play.’

Although the statutory wording is different in the present case, these two cases demonstrate a structure to the statutory offence which has been replicated in the 2007 Regulations. The words ‘knowingly’ and ‘permit’ relate to knowledge of the facts and not as to the existence and scope of the permission or conditions of a licence. The Prosecution does not have to show that a defendant knew that the matters of which it was aware were not permitted. There are good reasons for this: there are means of checking the existence and conditions of environmental permits, and ignorance of these matters should not be a defence to an environmental offence.

Mr Kimblin recognised that these two decisions were obstacles to his argument, but he submitted that this Court would gain more assistance from the decision in Westminster City Council v. Croyalgrange Ltd [1986] 1 WLR 674. In that case the House of Lords was concerned with the paragraphs 6(1) and 20(1)(a) of Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, concerning the licensing of sex shops.

Paragraph 6(1) provided,

... no person shall ... use any premises ... except under and in accordance with the terms of a licence;

and paragraph 20(1),

A person who (a) knowingly ... permits the use of any premises ... contrary to paragraph 6 above ... shall be guilty of an offence.

The House of Lords concluded that the requirement of knowledge related not just to the use of premises as a sex shop, but also to such use being contrary to paragraph 6 (without a licence or waiver of licence).

In our view the decision is of less assistance on the present issue of statutory interpretation than Mr Kimblin submitted. First, a similar argument, that the case threw light on the proper interpretation of Section 33(1)(a) of the Environmental Protection Act 1990, was advanced and rejected by the Divisional Court in the Shanks & McEwen case (at p.344H-345A).

That was a case decided under quite differently expressed legislation ... the decision is of no assistance to the defendant in the present case.

Secondly, it is clear that the reasoning of the leading speech in the Croyalgrange case (Lord Bridge) proceeded on the basis that it was inconceivable that a person could permit the use of premises for the exhibition of pornographic material if that person was ignorant of the nature of the offending use. It therefore followed that the word ‘knowingly’ must relate to the terms of the licence. In the context of the Environmental Permitting Regulations it is perfectly possible that a defendant may be ignorant of a particular waste operation, and that its knowledge of the facts should therefore be proved.

On the facts of this case, Mr Walker knew of some burning at the site, albeit he nothing of the substantial importation of wastes by others. The law required that he ensure that what was happening was compliant with the conditions of an environmental permit. It would be no defence to say that he had been told lies.

It is clear from Explanatory Information attached to the draft of the 2007 Regulations that strict liability in environmental regulation was ‘a deliberate choice ... made in order to secure higher environmental standards,’ and that there should no longer be a due diligence defence. Although we doubt whether this document can assist the Court as to the proper interpretation of Regulation s.38(1), it makes clear, what is apparent from the Regulations themselves, that there is no longer a defence based on the exercise of due diligence to avoid the commission of this offence. We agree with the submission of Mr Hockman QC that, if the Company’s construction were correct, it would in effect introduce a ‘due diligence defence by the backdoor’, and constitute a significantly more favourable approach to environmental breaches than the 2007 Regulations otherwise appears to envisage.

We have therefore concluded that the Judge was correct in his conclusion as to the proper interpretation of Regulation 38(1); and accordingly the appeal is dismissed.

In the course of the argument an issue arose as to the extent to which an offender’s state of knowledge as to the infraction of a permit or its terms will be relevant to sentence. This is not a sentence appeal and there is a wide range of circumstances in which the offence may be committed. For this reason we confine ourselves to observing that these are matters for the body charged by Parliament with this task, the Sentencing Council, whom we understand will shortly be publishing guidelines.