Stone & Anor v Environment Agency

On 28^th March 2017 the Norwich Magistrates’ Court convicted the Appellants of offences contrary to Regulations 12(1)(a), 38(1)(b) and, in the case of Mr Stone, of Regulation 41(1)(a) and (b) of the Environment Permitting (England and Wales) Regulations 2010 SI 2010 No. 675 (‘the 2010 Regulations’). There was a third Defendant, a Mr Quinsey, but he has not appealed.

The Appellants asked the Justices to state a case for the opinion of the High Court. They agreed and the Case they stated was dated 1^st September 2017. That allowed the Appellants to appeal to this Court by way of case stated. However, by Practice Direction E to Part 52 of the Civil Procedure Rules, paragraph 2.2, the Appellants had to lodge their notice of appeal within 10 days of their receipt of the Case (which I am told was on 4^th September 2017). In fact the Appellants did not do so until 1^st December 2017. They were thus about 2 ½ months late.

Of course the Court has power under CPR r. 3.9 to give relief from sanctions and to extend time. The Appellants, in their notice of appeal, asked for such relief and supported the application with the witness statement of their solicitor, Leon Golstein. He candidly accepts that he made a mistake, but submits that the adverse consequences should not be visited on his clients. I agreed to extend time. I said I would give reasons in my judgment. This I now do.

The approach to such applications is now governed by the well-known authorities of Mitchell v News Group Newspapers Ltd. [2013] EWCA Civ 1537 and Denton v T.H. White Ltd [2014] EWCA Civ 906.

The Court needs to proceed through three stages.

In this case, Mr Ostrowski for the Respondent draws attention to the seriousness of the breach and the importance of finality in litigation.

On the other hand, Mr Strelitz, for the Appellants was able to submit:

For the reasons given in the previous paragraph, I decided that it would be right to extend time.

The 2^nd Appellant is the owner of a site off Rice Way in Norwich (‘the site’). The 1^st Appellant is a director of the 2^nd Appellant.

Mr Qunisey, trading as Salhouse Recyclers, took a lease of the site and used to operate a waste business at the site. He recycled mattresses. The Environment Agency served an Enforcement Notice on Mr Quinsey on 24^th August 2015 and he ceased trading on or about that time.

At that stage there were about 471 tonnes of mattresses left on the site (about 20,166 of them).

The charge against the 2^nd Appellant (the company) alleged that

The charge against Mr Stone was in similar terms except that it was additionally alleged that the 2^nd Appellant had acted with his consent or connivance or attributable to neglect on his part as a director of the 2^nd Appellant.

I will return in due course to some of the factual findings made by the magistrates.

The 2010 Regulations have now been replaced by the Environmental Permitting Regulations (England and Wales) 2016 SI 2016 No. 1154, but, by regulation 77 of those Regulations and the numbering retained in the 2010 Regulations, the 2010 Regulations were preserved for the matters with which the magistrates and I am concerned.

Regulation 38 of the 2010 Regulations is the starting point for explaining the framework under which the Appellants were charged. So far as material, it provides,

Regulation 12(1)(a) says,

The term ‘operate a regulated facility’ is defined by Regulation 7 as including

Regulation 2 then defines a ‘waste operation’ as

Schedule 9 paragraph 2 of the 2010 Regulations provides that the terms ‘recovery’ and ‘disposal’ have the same meaning as in the Waste Framework Directive, which is a reference to Directive 2008/98/EC of the European Parliament and of the Council of 19^th November 2008 ( the ‘WFD’).

Article 3(15) of the WFD says that ‘recovery’ means,

Article 3(19) of the WFD says that ‘disposal’ means,

Annex I is then headed ‘Disposal Operations’. 15 are listed and labelled D1 – D15. D15 is

Annex II is headed ‘Recovery Operations’. 13 operations are listed and labelled R1 – R13. R13 says,

It was the Environment Agency’s case that, during the period charged, the Appellants had knowingly permitted a waste operation to be carried on at the site in the form of storage pending removal or disposal. Both parties agreed that the exceptions in parentheses in D15 and R13 had no application on the facts of the present case. There was also no dispute that the mattresses qualified as ‘waste’. Further it was not suggested that the Appellants had been acting in accordance with any permit granted by the Environment Agency or were entitled to any relevant exemption.

The Magistrates’ Case records that the Appellants submitted that there had been no waste operation on the site during the period of the charges. The recycling business had been, they said, that of Mr Quinsey. What was done after his departure was rather to be viewed as a clean-up operation. Secondly, they argued that, if what was occurring was a ‘waste operation’, it was not one which they had knowingly permitted as Mr Stone (the 1^st Appellant) had been out of the country when the Enforcement Notice had been served on Mr Quinsey on 24^th August 2015. He had not been aware of the operation while he had been abroad. On his return he had co-operated with the Environment Agency in attempting to clear the site without incurring huge costs.

The Magistrates noted that the Respondent had submitted that the ongoing storage of the mattresses was a ‘waste operation’ and ‘knowingly permitted’ was made out if the Appellants were aware that a waste operation was taking place on the site and failed to prevent that waste operation from occurring. The Respondent also argued that the Appellants had assisted Mr Quinsey in setting up his mattress recycling business, offered advice on the business, encouraged bed and mattress companies to use Mr Quinsey’s business. The Appellants had communicated with the Agency via email, there had been meetings between the parties, a remedial plan had been proposed by the Respondent, but the Appellants had not agreed to it. The waste remained on the site and the Appellants had made no attempt to move it.

I have already referred to some of the findings made by the Magistrates. In addition, they recorded that Mr Stone had assisted Mr Quinsey with his business and that Mr Quinsey had been on the site on 27^th October 2015 after the date that his business closed but during the period cited in the charges. They then added at paragraphs 9 – 18 the following,

On 5^th May 2017 the 1^st Appellant was sentenced to a 12 month community order with a requirement to undertake 150 hours of unpaid work. The 2^nd Appellant was fined £5,000. Both were required to pay victim surcharges. Each Appellant was ordered to pay £7,032.99 towards the costs of the prosecution.

The Magistrates have stated two questions for the opinion of the High Court.

Question 1 is

Question 2 is

By the Senior Courts Act 1981 s.28A the Court has power to send the Case back to the magistrates for amendment.

In his skeleton argument for the hearing, Mr Ostrowski submitted that I should ask the magistrates to amend their Case in two ways. After hearing his oral submissions, I concluded that neither of his proposed amendments was necessary and I should not therefore request the magistrates to make them. I said that I would give my reasons in my judgment and I do so now.

First, Mr Ostrowski submitted Question One should be amended to read, ‘Were the Magistrates entitled to find that there was a continuing ‘waste operation’ as defined in the 2010 regulations and WFD consisting of storage of waste pending recovery or disposal between the dates charged.’ [proposed additional words emphasised].

I considered that this amendment was unnecessary. I have already quoted the charge against each defendant. It can be seen that the Magistrates have appropriately tracked the language of the charge in their first question as it presently stands. Even without the amendment it was open to the Respondent to argue that the magistrates were entitled to find that there was a continuing waste operation during the charge period which consisted of storage pending removal or disposal. It was immaterial whether the additional words which Mr Ostrowski wanted to be included by amendment were or were not added to the question posed by the Magistrates.

Mr Ostrowski secondly wished the case to be amended so as to add further documents to those already attached to the Case. He wished to add all of the documentary evidence and witness statements which were before the Magistrates. The Case presently included some documents but, Mr Ostrowski submitted, the selected documents were insufficient for him to deal with an argument in the Appellants’ skeleton argument that the Respondent was wrong to charge them with an offence under regulation 38 of the 2010 Regulations.

It can be seen from paragraph 17 of their Case that the Appellants had raised before the Magistrates the decision to charge them with this offence, rather than prosecuting them for failing to adhere to an Enforcement Notice. However, as the Magistrates appositely observed, ‘there was no application for a stay of proceedings in order for an abuse of process argument to be considered in the conduct of these proceedings.’ In those circumstances, as the Magistrates rightly said, their task was to consider whether the charges, which had been brought, were proved. My task is confined to responding to the questions posed by the Magistrates. Mr Strelitz said he did not rely on the passages to which Mr Ostrowski referred in order to make an abuse of process challenge (he accepted that would not be proper), but to show that, even if the Court adopted the interpretation of regulation 38 for which he contended, there would not be a lacuna in the Environment Agency’s powers.

In my view, both parties could properly marshal their respective submissions by reference to the law and authorities. It was not necessary for me to see all the documentary evidence before the Magistrates (furthermore, since the Magistrates heard oral evidence, even that would have been an incomplete picture of the evidence before them). Indeed, I was sceptical as to the need to attach to the Case those documents which had been included. In any event, since the exercise with which I was engaged did not require me to see further evidence, I also refused this application by the Respondent. After reserving judgment, I reviewed the documents appended by the Magistrates to their Case. This confirmed my view that they were not necessary for me to resolve the questions posed by the stated Case..

Mr Strelitz submitted that they were not. He argued:

Mr Ostrowski argued that the Magistrates were entitled to find that there had been a continuing ‘waste operation’ during the period charged. He submitted,

In his written submissions, Mr Ostrowski argued that it was significant that the Appellants had not made a submission of No Case to Answer at the conclusion of the case for the prosecution in the Magistrates’ Court. In oral argument he accepted that, while this forensic point was open to him, he was not contending that the Appellants were precluded from arguing as they did in relation to question 1 because they had not made such a submission to the Magistrates.

I have set out the competing arguments. It is sufficient for me to say that despite Mr Strelitz’s contentions, I was clear that those of Mr Ostrowski were to be preferred and the first question posed by the Magistrates should be answered in the affirmative.

Mr Strelitz argued that the Magistrates were not entitled so to find. He contended:

Mr Ostrowski argued that the Magistrates were entitled to take the course that they did.

I recognise that Alphcell Ltd v Woodward (above) was dealing with the ‘active’ limb of the offence (i.e. that which penalised ‘causing’ pollution), but its commentary on the purpose of including both the ‘active’ and the ‘passive’ (i.e. ‘knowingly permitting’) limb is instructive. Walker was dealing with a rather different point, but nonetheless the Court of Appeal endorsed Judge Lea’s direction to the jury which included the alternative of failing to prevent the waste operation. Again, I have come to the clear conclusion that Mr Ostrowski’s submissions are to be preferred. The Magistrates were right that the prosecution did not have to prove that the prosecution took a positive act within the period covered by the charges.

That, it seems to me is the essential issue posed in their second question. That question concludes ‘but [the prosecution must prove that the defendant] simply knew such a waste operation (as defined) was taking place’. That way of phrasing it does not quite capture the ‘knowingly permitting’ alternative. As the House of Lords and Court of Appeal has said, if this alternative is charged it must be proved that at least the Defendant failed to prevent the waste operation from occurring.

However, this qualification does not assist the Appellants. As the Magistrates have recorded (see paragraph 4 of their Case) the Respondent had contended that the Defendant’s failure to prevent the waste operation from occurring was a necessary element for them to prove. The Appellants’ contention (as summarised in paragraph 3 of the Case) was, not that they had taken steps to prevent storage of the mattresses, but that they were initially unaware of the enforcement notice and had then co-operated with the Environment Agency in what was, in effect, a clean-up operation. The Magistrates found that the waste operation continued after 24^th August 2015 (see paragraph 13 of their Case) and furthermore that ‘the Appellants had knowingly permitted the waste operation’ (paragraph 14). Mr Stone had known that the waste had been left on the site after Mr Quinsey’s business ceased trading. They rejected the Appellants’ characterisation of what took place after 24^th August 2015 as a ‘clean-up operation’ (see paragraphs 12 and 13 of the Case).

Question 1: Were the Magistrates entitled to find that there was a continuing ‘waste operation’ as defined in the 2010 regulations and Waste Framework Directive (2008/98/EC) consisting of the storage of waste between the dates charged?’

Question 2: Were the Magistrates entitled to find that the offence of ‘knowingly permitting’ the operation of a regulated facility did not require the prosecution to establish that the accused took a positive act within the period covered by the charges, but simply knew such a waste operation (as defined) was taking place?

It follows that the appeal is dismissed.