Milton Keynes District Council v Fuller & Anor

This is an appeal by Milton Keynes Council ("the council") from a decision, made on 25 August 2010, of three justices for the Thames Valley Commission Area sitting in and for the Petty Sessional Area of Milton Keynes. The justices dismissed an information laid against Darren John Fuller and Christopher John McVeigh ("the respondents"). Mr Fuller is the managing director of Fullers Farming Limited and he farms land near Kiln, which is itself near Milton Keynes. The farm includes a field which is adjacent to the V4 Watling Street main road. I will call that field "the field". There is a track which leads from the main road to the field. Mr McVeigh works for Mr Fuller on the farm.

The information alleged that the respondents had, on or around 7 July 2009, illegally deposited controlled waste; or had knowingly committed controlled waste to be deposited when there was no waste management licence in force authorising the deposit. It was alleged that the deposit was at the entrance of the field by the V4 Watling Street near Kiln Farm, Milton Keynes. The information alleged that this illegal "deposit" of controlled waste had been made by the respondents contrary to section 33(1)(a) of the Environmental Protection Act 1990, hereafter "the EPA 1990".

The council's appeal is by way of Case Stated. In the Case the justices record that they had heard evidence and submissions on the matter over the course of a two-day hearing on 24 and 25 August 2010.

An information was also laid by the council against Fuller's Farming Limited alleging the same offence or offences as just described. That information was dismissed upon the submission of no case to answer and there is no appeal from that decision.

Section 33 (1)(a) provides:

Section 33 (8) stipulates that "a person who contravenes (1) above... commits an offence". The offence can be tried either way. On summary conviction the maximum sentence is 12 months' imprisonment or a fine of £50,000 or both. On indictment the maximum sentence is one of 5 years' imprisonment. The offences are, therefore, potentially serious.

The term "controlled waste" is defined in section 75(4) of the EPA 1990 to mean "household, industrial and commercial waste or any such waste". There is no definition in the EPA 1990 of the word "deposit", nor is there any other statutory definition of the word for the purposes of the EPA 1990 provisions.

It was accepted before the justices and before us that none of the exceptions or defences set out in section 33(2)-(5) applied in this case.

The council's case, as opened to the justices and as recorded by the justices in paras 4 and 5 of the Case Stated is that controlled waste which consisted of corrugated sheeting, tyres, broken bits of sheeting and fencing panel had been taken from the field by the respondent Mr McVeigh under the direction of his employer, the respondent Mr Fuller. The council alleged that Mr McVeigh had "deposited" this waste on the verge of the V4 Watling Street.

The facts were very much in dispute at the trial before the justices. They record carefully the evidence adduced by the council and by the respondents. However, it was not in dispute that Mr Fuller had telephoned the council in the afternoon of 7 July 2009 to report that waste had been deposited on the verge and that he requested the council to remove it.

The justices also recorded the evidence of Mr Fuller that he first saw the waste on 7 July 2009 when he had gone to the field to check that access was clear so that spraying of the crops in the field (peas) could take place. Mr Fuller's evidence, as recorded at paragraph 7(a) of the Case is that the waste was right across the track that leads from the road to the field. He said that he telephoned the council at 3.50 pm to report the matter and he was told that somebody would be out to clear it up as soon as they could. However, Mr Fuller's further evidence was that from past dealings with the council concerning waste he knew it would not happen in the next day or so and the crops needed spraying. Therefore, Mr Fuller said, he instructed Mr McVeigh to use a forklift to clear access to the field, only moving what was necessary to gain access.

Paragraph 7(c) of the Case records that Mr McVeigh's evidence was that he was instructed by Mr Fuller only to move enough of the waste out of the way so that he could get in with the sprayer. His evidence was that he was instructed not to move any more than he had to, because the waste contained some asbestos. Mr McVeigh moved the waste by picking it up with the forklift, driving the forklift into the field, turning it around and then coming back out and putting the waste on the verge. He then managed to clear the rest to the side. He stated that he did not pick up waste from inside the field and move it outside.

At para 11 of the Case Stated the justices record that they found that the council had not proved beyond reasonable doubt that either of the respondents had illegally deposited controlled waste or knowingly caused or knowingly permitted controlled waste to be deposited without a waste management licence by moving the waste from the field to the public verge. The justices gave their reasons for this finding of fact.

The justices then went on to deal, in paragraph 11(e) of the Case Stated, with what they described as "the admission of the Respondents regarding the waste". I take that sentence to mean the admission by Mr Fuller and by Mr McVeigh that some waste was moved, using the forklift, from the access track in the main road which gave access to the field to the verge on either side of the access track so that the farmer had access to take in the machine to spray the crops. We were shown a photograph that was in evidence before the justices which indicated where, on Mr Fuller's evidence, the waste had been when he first saw it and where it was put after the exercise with the forklift truck.

Paragraph 11(e) records this decision of the justices with regard to this admission:

The question stated by the justices for the opinion of the High Court is as follows:

Mr Simon Butler, who appears for the appellant council, submits that on the facts admitted by the respondents there was an illegal "deposit" of controlled waste for the purposes of section 33(1) of the EPA 1990 by the actions of moving the waste from the centre of the access track to the verges. Mr Butler acknowledges that the word "deposit" is not defined in the statute, but, he submits, it should be given a broad, common-sense interpretation as it would be in everyday speech. He relies on statements made by Waite LJ in Scott v Westminster City Council [1995] RTR 327 on the meaning of "deposit" in the context of the Highways Act 1980. He also relies on statements by Rose LJ in Thames Waste Management Limited v Surrey County Council [1997] Env LR 148 in the context of section 33 of the EPA 1990. Further, he refers us to statements by Watkins LJ in R v Metropolitan Stipendiary Magistrate, ex p The London Waste Regulation Authority and others and County Council of the Royal county of Berkshire, ex p Scott and another [1993] Env LR 417.

Mr Butter submits that the movement of the waste by Mr McVeigh has to be incorporated within the meaning of "deposit" within section 33 of the EPA. By moving the waste in those circumstances the respondents elected to exercise control over it. The only reason that they moved it was in order to gain access. The justices were wrong to regard that as a good reason why this action by the respondents did not constitute a "deposit".

Mr Butler further submitted that there are good public policy reasons why the movement of the waste in this case should come within the meaning of the term "deposit" in section 33. If not, he submitted, then a defendant who has no licence to move or deposit waste, let us call him A, who is charged under section 33(1) for "depositing" waste where he has moved it in the same manner as in this case, could argue that the waste had been "deposited" in a particular place by a third party who was guilty of the "deposit" of the waste. Further, A could argue that he was simply moving the waste on. That might allow defendants free rein to move controlled waste, including waste that is potentially hazardous or dangerous, even onto public land or a public highway where it may present a form of danger to the public. But, Mr Butler submitted, the permissible "justifications" are all set out in the exceptions listed in section 33 itself and a construction of "deposit" should be careful not to add any more than those justifications that were not contemplated by Parliament.

The first argument of Mr Moorhouse for the Respondents is that this court should not entertain this appeal at all because it is, he submits, effectively an abuse of process. He submits that the council had made it clear throughout the proceedings before the Magistrates' Court that its case was that the respondents had moved the waste from the field to the verge bedside the main road. Furthermore, Mr Roberts, the county's environmental enforcement officer, who had interviewed Mr Fuller and Mr McVeigh under caution, had confirmed in cross-examination, as recorded at para 5(b) of the Case Stated, that during Mr McVeigh's interview, Mr Roberts's colleague had stated that a prosecution would not ensue if Mr McVeigh was just moving waste away from the entrance of the field. The nature of the council's case was confirmed in a letter dated 15 June 2010 from the council's assistant solicitor, Joanne Swampillai, to the solicitors acting for the respondents. That was the way the council conducted the trial, it was submitted by Mr Moorhouse.

Mr Moorhouse argued that, in the light of those facts, it would be an abuse of process if the council were now permitted to argue on appeal that there had been an unlawful "deposit" of the controlled waste if, as the justices found on the facts, some was moved only from the access track to the field to the side of the verge.

This submission was put on two bases. First, that Mr Fuller was told in terms that when he was interviewed that he would not be prosecuted for this offence and his version of the facts was correct. Secondly, because the respondents were clearly told that the council was putting its case solely on the basis that waste was taken from the field and then deposited on the ground. It is said that as a result of this, the respondents' legal team did not take steps that otherwise would have been taken in several respects. These included: challenging the summons, which it was said had "rolled up" charges; examining unused material; calling further witnesses and perhaps an expert and engaging in more extensive cross-examination of the council's witnesses of fact.

Furthermore, it was said by Mr Moorhouse that the respondents would have asked the justices to take the issue of whether the movement of some controlled waste within the access area to the side of it could amount to a "deposit" within section 33 as a preliminary point of law.

On the meaning of "deposit", Mr Moorhouse accepts that it should be given its normal or natural meaning. But, he submits, on the facts of this case, there was no "deposit" of the waste by the respondents. It had already been deposited by the person who put it there illegally and the movement of some of the waste from the centre of the access road to the side could not be called a "deposit" within the meaning of section 33(1). He gave an example of a householder who deliberately and illegally deposited controlled waste upon his neighbour's driveway so that the neighbour could not get his car out of his driveway. That would be a "deposit". But, Mr Moorhouse submits, it would not be a "deposit" if the neighbour moved the same waste to one side so that he could get his car out of the drive. Mr Moorhouse emphasised the difference between a "deposit" of waste and its "movement".

I intend to deal first with the question posed in the Case Stated. That involves, first and foremost, consideration of what the word "deposit" can encompass for the purpose of the EPA 1990.

In the absence of any definition of "deposit" in the EPA 1990 it seems to me that its meaning must take its colour from the context in which the word is used in the statute, as Bingham LJ put it in Leigh Land Reclamation Ltd v Walsall Metropolitan BC [1990] 1 Env LR 16 at page 26. The actual decision of Bingham LJ and Waterhouse J in that case, namely that "deposit" (as used in the previous statute prior to the EPA 1990) referred only to the "final resting place" of the waste, was not followed in the subsequent case of R v Metropolitan Stipendiary Magistrate, ex p the London Waste Regulation Authority and others [1993] Env LR 417. But there was no criticism of Bingham LJ's principle of construction.

The same principle was applied by Waite LJ when, in a judgment in the Court of Appeal, he considered the ambit of the word "deposit" in the context of section 149 of the Highways Act in Scott and another v Westminster City Council [1995] RTR 327 at 331 H. Waite LJ also said that because the word "deposit" was so common a word, the context in which it could be used were almost limitless. He continued:

Waite LJ also pointed out (at 331 K-L) that because of the flexibility of the word there may be cases where it would be difficult to determine whether a particular "placement" was or was not a "deposit". Nourse LJ and Sir Tasker Watkins agreed with Waite LJ.

In this case, the justices concluded in the third of the paragraphs of para 11(e) of the Case Stated that the movements of the respondents:

They distinguished the Thames Waste Management case, as already noted.

That case involved different facts. The problem in that case was that the waste management company had not covered the waste up when it had been "deposited" and it had created a very bad smell over the course of a weekend. The issues before the justices and before the Divisional Court was whether, given that lack of covering, there was evidence upon which the justices could conclude that the purposes of section 31(1) of the EPA, that controlled waste had been "deposited" otherwise than in accordance with the licence, had been issued to the company.

Rose LJ, with whom Maurice Kay J agreed, held that "deposit" could embrace a "continuing state of affairs" and it was open to the justices to construe "deposit" as they did so as to make the finding that the actual "deposit" was not in accordance with the licence by not covering up the waste: See page 156 of the report.

In reaching his conclusion in that case, Rose LJ referred to and relied upon remarks of Lord Reid in Cozens v Brutus [1973] AC 853. That was the celebrated case about the man who protested against the apartheid policy of the South African Government by demonstrating on Number 2 court during the Wimbledon tournament. Mr Brutus was charged with using insulting behaviour whereby a breach of the peace was likely to be occasioned, contrary to section 5 of the Public Order Act 1936. The magistrates found that his behaviour was not insulting on the prosecution evidence. On a case stated the Divisional Court set aside that judgment and remitted the case to the magistrates. They certified a point of law of public importance for the House of Lords. That was whether:

The House of Lords allowed the appeal. Lord Reid gave the first speech. He said it was not clear what the point of law was that the House had been asked to decide. He said, at 861C, that it was incorrect to assume that the construction of "insulting" in the 1936 Act was a question of law.

His speech continued:

Lord Morris of Borth-y-Gest adopted the same reasoning in his speech. He pointed out that the error of the Divisional Court was to frame its own definition of "insulting" and then apply it to the behaviour of the appellant. That was not the correct approach. Viscount Dilhorne and Lord Kilbrandon adopted a similar view and Lord Diplock agreed.

Lord Kilbrandon emphasised the problem involved in taking a word that is an "ordinary uncomplicated English word" and using dictionary definitions of it to elucidate its meaning in the statutes. He quoted from the preface of Dr Samuel Johnson's Dictionary:

In the present case, the justices had the task of deciding, on the facts, whether the actions of the respondents amounted to a "deposit" of controlled waste. The justices found as a fact that somebody else had deposited the waste across the access to the field which belonged to a farming company of which Mr Fuller was the managing director. The justices held that the movement of some of the waste to clear the access to the field did not amount to a "deposit".

Both counsel accepted before us that the approach of the House of Lords in Cozens v Brutus applied to this case. In my view, just as was the case with the word "insulting" in Cozens v Brutus, in this case there is no question of law involved in the interpretation of the ordinary and uncomplicated English word "deposit". The justices were obviously acquainted with the ordinary use of the English language word and with the word "deposit". To my mind the justices' conclusion, that the act of the respondents did not amount to a deposit, was a perfectly reasonable one. It was open to the justices so to conclude on the facts found by them. We cannot impose our own exegesis on the meaning of the word and then apply our meaning to the facts as found by the justices. That would be to repeat the error of the Divisional Court in Cozens v Brutus.

The argument that the justices' conclusion will drive a coach and horses through the section is not sound. There may well be cases where a second movement of controlled waste does amount to a "deposit". Each case has to be decided to the particular facts that are raised and found.

Therefore I would answer the question posed by the justices in this way: On the facts as found the justices were entitled to conclude that the movement of the controlled waste by the respondents that was blocking the entrance to a field (in order to clear a route to gain access to their own property) to the public verge was not a "deposit" for the purposes of section 33(1)(a) of the EPA 1990.

That means that it is unnecessary for me to determine the "abuse of process" argument put forward by Mr Moorhouse on behalf of the respondents. There may be force in the submissions that the only basis on which the case was put below was that waste had been moved from within the field to the verge and that Mr Fuller was given a clear understanding that there would be no prosecution if the facts were otherwise. But the issue of whether that makes the present appeal an abuse of process is a more difficult one. As I do not need to decide it I think it is better not to attempt to tackle it at all.

I would dismiss the appeal.

MR JUSTICE CALVERT-SMITH: I agree and have nothing to add.

MR MOORHOUSE: Might I renew my application for costs, in those circumstances?

LORD JUSTICE AIKENS: That is the costs in this court?

MR MOORHOUSE: In this court, my Lord. Costs in the lower court, I think, have already been ordered by that court.

LORD JUSTICE AIKENS: Thank you.

Anything to say about that?

MR BUTLER: My learned friend would normally have served the schedule of costs so (Inaudible) assessed by discourse you don't have to incur the costs of a detailed assessment and we have not received any schedule of costs.

LORD JUSTICE AIKENS: If we can avoid a detailed assessment, which in itself usually involves a lot more costs, then one should do so. Mr Moorhouse, why haven't you got a schedule?

MR MOORHOUSE: My Lord, one has been prepared and can be passed along. I apologise it has not been served prior to today.

LORD JUSTICE AIKENS: Can we have a copy?

MR BUTLER: My Lord, I would like to make various observations on the schedule when your Lordships have had the time to read it first. (Handed) (Pause).

LORD JUSTICE AIKENS: Do you want to make some submissions on it?

MR BUTLER: My Lord, the first submission is this: as far as the Case Stated is concerned, as your Lordships appreciate, the Case Stated is drafted by application by the appellant to the magistrates who formulate the Case Stated. It is then sent as one document with no other evidence. My learned friend just put a skeleton argument in, in response, and therefore can I take your Lordships to the first page. I am at a loss to understand why a Grade B partner and a trainee spent have over eight hours on draft and preparation in the sum of which your Lordship will see, £1,234 and £462.50. The solicitor spent eight hours considering the Case Stated in the sum of £2,000. He spent eight hours drafting letters which I cannot understand because, as I said, this is not a trial. My Lord, if one turns over the page to the final page. Preparing the hearing for the solicitor: three hours, with nothing to prepare, because counsel appears on the case. The solicitor is not entitled to claim eleven hours at £2,750 for attending the hearing, this is listed for no more than just over one hour. As your Lordship is aware, they are not entitled to claim travel costs and waiting time, five hours, advocacy, six hours.

LORD JUSTICE AIKENS: What's that for?

MR BUTLER: That's the solicitor's costs. I'm not sure, my Lord, what that is a claim for. He has claimed travel (Inaudible) advocacy at six hours and then as my Lord can appreciate, counsel is not entitled to claim cost for travel, nor his solicitor, but, of course, he is entitled to his brief fee and that is a matter for your Lordships.

I do not dispute counsel's entitlement to a fee drafting an appearing, but, save for that, the sum of costs of a solicitor, we have prepared the bundles, we have prepared all the documents, my Lord. It cannot incur the kind of hours one would see and I leave it for your Lordships' wise experience to determine what would be a reasonable sum. We would rather avoid a detailed assessment to avoid further costs.

LORD JUSTICE AIKENS: But the hourly rates look about right.

MR BUTLER: The hourly rates I would not dispute, if your Lordship finds it justified for a Grade B partner on the matter of this nature. It is a magistrate's letter.

LORD JUSTICE AIKENS: Anything else?

MR BUTLER: My Lord, no, very grateful.

MR MOORHOUSE: My Lord, clearly on behalf of the respondents in this case, my Lord will have seen the bundles. A document has also been prepared.

LORD JUSTICE AIKENS: We have got the photograph one, haven't we?

MR MOORHOUSE: Yes. Submissions on behalf of the respondents, as well.

If I may invite my Lord's attention to the attendants attending the hearing. Those were estimates based on the times that were given by this court and I think to this court as to the length of proceedings and clearly those have not bourne out in the amount of time concerned. That amount ought to be adjusted.

LORD JUSTICE AIKENS: Wild overestimate.

MR MOORHOUSE: But solicitors were dealing with, as my Lord will know, with two clients. They certainly spend part of their time out of this country, one of them, so it isn't a question of dealing with both of them as the same entity in the same place at any given time. So there are additional, if you like, preparation costs, over and above dealing with simply one case.

LORD JUSTICE AIKENS: Anything else? What about all these drafting preparations stuff? Total of over eight hours and then consideration, another eight hours, letters out, another eight hours.

MR MOORHOUSE: My Lord, might I just -

LORD JUSTICE AIKENS: One point two hours even for telephone calls.

MR MOORHOUSE: There have been a number of telephone conferences in the case.

LORD JUSTICE AIKENS: They are not described as conferences, they are described as calls.

MR MOORHOUSE: Yes. I would believe that those would be conference calls which, certainly, I was involved in a number of in these proceedings.

LORD JUSTICE AIKENS: Anything else?

MR MOORHOUSE: My Lord, I don't think I can add anything to that. The drafting and preparation, as I understand are the documents for submission to myself by the instructing solicitors, consideration and letters are billed in the normal way as I understand it, as the work is done.

LORD JUSTICE AIKENS: Right.

MR MOORHOUSE: I don't know whether I can assist my Lords to any greater extent.

LORD JUSTICE AIKENS: No, that is very helpful, thank you. We are going to retire and just look at this.

LORD JUSTICE AIKENS: We have summarily assessed the costs. We are going to disallow the drafting and preparation time and costs on the first page and substitute an allowance of 2 hours for SN. We are going to allow only 2 hours' consideration by AN. Letters out: instead of 7.8 hours we are going to allow 5 hours' time by AM. Then on the final page we think that it is reasonable only to allow AN 1 hour for preparation and 2 hours for attending, which is what it would have been effectively. Then we would disallow travelling and waiting time for AN. We disallow counsel's travel and solicitors' travel under the estimated disbursements. The new schedule will have to incorporate all those letters. Will those preparing it pass it to Mr Butler, agree it with Mr Butler and then make sure that we get a signed copy of it, so it can then be incorporated in the order as a summarily assessed total of costs?

MR MOORHOUSE: Thank you, my Lord.

LORD JUSTICE AIKENS: Thank you both very much indeed.