Gateway Professional Services (Management) Ltd v Kingston Upon Hull City Council

LORD JUSTICE LAWS: This is an appeal by way of case stated. The appellant is a limited company. The court has given permission for it to be represented by its Chief Executive and Director, Mr Richard MacKenzie. The appeal is brought against the appellant's conviction on 1st September 2003, by the Humberside Justices sitting at Hull and Holderness Magistrates' Court, of an offence of failing to take all reasonable measures to prevent the escape of controlled waste contrary to section 34 of the Environmental Protection Act 1990.

It appears from the case stated by the justices that on 16th August 2002 an employee of the appellant company deposited a number of black bags containing commercial office waste at the premises adjoining the appellant's own premises. The owner of these next door premises, Mrs Edwards, found some paperwork in one or more of the bags which belonged to the appellant company. She made a complaint, which ultimately led to the prosecution. It appeared that the waste bags had been deposited contrary to instructions given by the management.

Mr Bennett, for the respondent to the appeal, says that there is no dispute about the facts of the case save as to one detail, which is whether the bags had been put in bins or not on Mrs Edwards' property. That does not seem to me to possess any significance.

At the close of the prosecution case in the court below, Mr MacKenzie advanced a submission to the magistrates to the same effect as his argument before us today. It was that there was no evidence of any escape of waste from the control of the appellant company. That was because the word "escape" meant leakage or spillage or the like, and was not an apt term to describe the deliberate depositing of waste. The magistrates, however, rejected that submission. They went on to accept that appropriate instructions to the appellant's staff had been given, but they held that there should have been monitoring to ensure compliance. On that basis they convicted the appellant, and in the case stated asked a single question of this court as follows:

"On the evidence before them, did the magistrates err in law by finding that the words 'escape of waste from his control' within Section 34(1)(b) of the Environmental Protection Act 1990, should be construed so as to encompass the deliberate depositing of commercial waste by a company employee on land belonging to another in contravention of company instructions?"

I turn to the material provisions of the statute. Section 34(1) reads as follows:

"Subject to subsection (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; [then I am interpolate a further provision at (aa), has been added, I need not read it]; and

(b)

to prevent the escape of the waste from his control or that of any other person; and

(c)

on the transfer of the waste, to secure-

(i)

that the transfer is only to an authorised person or to a person for authorised transport purposes; and

(ii)

that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section or any condition of a permit granted under regulation 10 of those regulations, and to comply with the duty under this subsection as respects the escape of waste."

Then section 34(6) (which I need not read) criminalises breach of the section 34(1) duty. Section 34(7) requires the Secretary of State to issue a Code of Practice.

Section 33 is also important in view of the arguments that have passed this morning. Section 33(1):

"Subject to subsections (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 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."

Breach of the obligations imposed by section 33 are criminalised by subsections (8) and (9). Certain special defences are provide for by subsection (7). I read only subsection (7)(c):

"It shall be a defence for a person charged with an offence under this section to prove-

(c)

that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where ... "

And then two limiting conditions are set out which I need not read.

The Secretary of State has duly issued a document entitled, "Waste Management the Duty of Care: A Code of Practice." The respondent prosecutor, represented by Mr Bennett, in submitting that given that the purpose of the Act is environmental protection, including the prevention of the dumping of waste, a broad interpretation should be given to the word "escape", draws attention to certain passages in the Code of Guidance. They are sections 2.1, 2.2 and 2.7, in the following terms:

"2.1

All waste holders must act to keep waste safe against:-

(a)

corrosion of wear of waste containers;

(b)

accidental spilling or leaking or inadvertent leaching from waste unprotected from rainfall;

(c)

accident or weather breaking contained waste open and allowing it to escape;

(d)

waste blowing away or falling while stored or transported;

(e)

scavenging of waste by vandals, thieves, children, trespassers or animals.

2.2

Holders should protect waste against these risks while it is in their possession. They should also protect it for its future handling requirements. Waste should reach not only its next holder but a licensed facility or other appropriate destination without escape. Where waste is to be mixed immediately, for example in a transfer action, a civic amenity site or a municipal collection vehicle, it only needs to be packed well enough to reach that immediate destination. Preventing its escape after that stage is up to the next holder. However, there are wastes that may need to reach a disposal or treatment site in their original containers. For example, drummed waste. In such cases, holders will need to know through how many subsequent hands; under what conditions; for how long; and to what ultimate treatment their waste will go in order to satisfy themselves that it is packed securely enough to reach its final destination intact. If an intermediate holder alters waste in any way, by mixing, treating or repacking it, then he will be responsible for observing all this guidance on keeping waste safe. ...

2.7

Waste left for collection outside premises should be in containers that are strong and secure enough to resist not only wind and rain but also animal disturbances, especially for food and waste. All containers left outside for collection will therefore need to be secured or sealed. For example, drums with lids, bags tied up, skips covered. To minimise the risks, waste should not be left outside for collection longer than is necessary. Waste should only be put out for collection on or near the advertised collection times."

Mr MacKenzie, for the appellant, relies, as he relied below, on a passage from the second edition of Bates on UK Waste Management Law at paragraph 5-17 as follows:

"The second duty is to prevent the escape of the waste from his control or that of anyone else. This involves ensuring that it is properly packaged, handled and secured to prevent spillage or leakage. The duty here is to secure that the waste will be packaged so as to survive transport to its final destination, unless it is to be immediately mixed with other waste."

Mr MacKenzie's case is short and simple. It is that the word "escape" is simply not apt to denote a deliberate act of depositing waste. Mr Bennett submits on the contrary that a person who deliberately dumps waste has allowed it to escape. It seems to me that Mr MacKenzie plainly has the better of the linguistic argument. Mr Bennett's submission is imaginative but unsustainable.

However, it would be close to unthinkable, in my judgment, if the negligent spillage of waste on to a neighbour's property were prohibited with criminal sanctions but its being deliberately deposited there were not. If that had been the apparent position, it might be open to the court to construe the term "escape" in section 34(1)(b) sufficiently widely so as to cover an act of deliberate dumping. But in my judgment such a case is already covered and plainly covered by section 33(1)(a). It is true that the waste in this case was not harmful to human health; it was ordinary office paper waste, as I understand it. While the possibility of there being damage to human health is material to the offence created under sections 33(1)(c), and also to the defence provided for by section 33(7)(c), the fact that there is no risk to human health is not of itself a defence anywhere on the face of the statute to a prosecution brought under section 33(1)(a).

We are of course not trying Mr MacKenzie's company for an offence under section 33(1)(a). It is enough to say that where the environmental wrong is constituted by an act of deliberate dumping of waste, it would seem to be covered by section 33(1)(a). This company was not prosecuted under that subsection, nor under section 34(1)(a) which, as appears from its terms which I have already read, requires a person (such as this company) to take reasonable measures to prevent any contravention of another by section 33.

Mr MacKenzie's company was not prosecuted under either of those provisions. The prosecution under section 34(1)(b) did not fit the facts of the case. The word "escape" cannot be read as widely as Mr Bennett would have it read. Accordingly, this appeal is good. The question asked by the Magistrates' Court, in my judgment, should be answered in the affirmative; that is to say, the magistrates did indeed err in law in the respect referred to in their question.

For those reasons, I would allow the appeal and answer the magistrates' question accordingly.

MR JUSTICE EADY: I agree.

LORD JUSTICE LAWS: Mr MacKenzie, you are successful in your appeal, the result of that is that the company's conviction will be set aside.

MR MACKENZIE: Thank you, my Lord.

LORD JUSTICE LAWS: Do you have any application? You are entitled to ask the court to make an order against Mr Bennett's clients for any costs, that is really to say, as you are here in person, any out-of-pocket expenses that you have incurred. I am not necessarily inviting you to do so, but it seems to me right to tell you that you have the right to ask us.

MR MACKENZIE: I have prepared a schedule of costs, my Lord.

LORD JUSTICE LAWS: Has Mr Bennett seen it?

MR MACKENZIE: No, if I could perhaps pass it up. (Same Handed) I apologise that those were not provided in advance.

LORD JUSTICE LAWS: Let me have a copy now, and we will see if we can deal with it without having to put it over to a costs judge.

MR MACKENZIE: Is it necessary, my Lord, to make a formal application for you to remit the matter to the justices?

LORD JUSTICE LAWS: I do not think so. We are setting aside and quashing the conviction. (PAUSE) My Lord, Eady J, may think differently, I think £108 is perhaps a little steep. On the other hand, was it really 12 hours worth - 12 hours inclusive of research? I am not suggesting that £9 an hour is unreasonable, but 12 hours seems to be perhaps quite a lot.

MR MACKENZIE: I did find a practice direction, my Lord, that said the appropriate rate for parties acting in person was £9, obviously in a sense this was me rather than the company.

LORD JUSTICE LAWS: No, I am not quarrelling with £9, I am just wondering whether you needed to take 12 hours?

MR MACKENZIE: I am including the time coming here and today.

LORD JUSTICE LAWS: My Lord, Eady J, points out it includes the time in court here today. Mr Bennett, I appreciate you have only just seen this but, first of all, do you resist the application for cost in principle.

MR BENNETT: Not at all.

LORD JUSTICE LAWS: Can we not make a summary assessment?

MR BENNETT: I am always loathe to pick figures out of the air, having said that, taking on board the number of hours, one wonders if a figure nearer to £250 or £275 is more apt, but that is a matter for the court.

LORD JUSTICE LAWS: We will make an order that the company have its costs against the City Council in the sum claimed of £309.93. There will be a summary assessment of costs in that sum.

MR BENNETT: Can I just thank the court for their time and say that I know when I get back to chambers they will be very pleased to hear that I have maintained the fine tradition of only losing in this court in front of litigants in person. I congratulate Mr MacKenzie.

LORD JUSTICE LAWS: Fair enough, Mr Bennett. Thank you.