1. law, govt and politics

Environmental Permitting
& Statutory Nuisance
2014 Update
Richard Barlow
Partner, Browne Jacobson LLP
20th November 2014
www.emlawshare.co.uk
The EP Regime
• Comprehensive regime introduced in 2008
• Integrated the regimes for:
– Waste management licensing
– Pollution prevention and control (“PCC”)
• Extended in 2010 to cover:
– Water discharge consents
– Groundwater authorisations
– Radioactive substances authorisations
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The EP Regime
• Water Act 2014 gave powers to SoS and Welsh
Ministers to make regulations to further extend EP
regime to cover:
– Water abstraction and water impounding
licences
– Flood defence consents
– Fish pass approvals
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The Regulations
• The main regulations:
Environmental Permitting (England and Wales)
Regulations 2010 (SI 2010/675) (EP Regulations
2010)
• Came into force on 6 April 2010
• Amended a number of times
• Schedules deal with permitting requirements of
particular types of activity (implementing EU
Directives)
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The Underlying Rationale
• R (on the application of Rockware Glass Ltd) –vChester City Council (1) Quinn Glass Ltd (2)
[2006] EWCA Civ 992
• EU Directive 96/61 1996 Purpose = “to control
pollution by stringent measures…”
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What is a “regulated facility”?
• A broad range of industrial installations (activities listed in Part 2
of Schedule 1)
• Waste operations
• Mining waste operations
• Radioactive substances activities
• Water discharge activities
• Groundwater activities
• Small waste incineration plants
• Solvent emission activities
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Exempt facilities
• Certain low-risk facilities are exempt (see
Schedule 2 and 3 to EP Regs 2010)
• Operators must register the exempt activity with
the relevant regulator
• Registrations will need to be renewed periodically
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EP guidance materials
•
Defra's Core Guidance (March 2013)
–
•
Defra: Environmental permitting general guidance manual on policy and procedures
for A2 and B installations
–
•
provides information relevant to all sectors regulated under the EP regime
EA regulatory guidance series: environmental permitting
–
•
•
This applies to activities regulated by local authorities under the EP regime.
EA horizontal guidance: environmental permitting
–
•
provides an overview of how the EP regime works as a whole.
provides information on policy and legal interpretation issues
EA: How to comply with your environmental permit
EA: Basic rules: Environmental permitting regulatory positions
–
contains EA regulatory position statements, setting out how the EA will regulate an activity in particular
circumstances.
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What do you need a permit for?
• Operating a “regulated facility”
• Causing or knowingly permitting a water
discharge activity or groundwater activity
(Regulation 12)
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The Regulators
• Most regulated facilities are regulated by the EA
(Regulation 32 of the EP Regs 2010)
• However local authorities regulate:
–
Part A(2) installations (emissions to air, water and land from smaller industrial plants)
–
Part B installations and Part B mobile plant (Part B applies only to emissions to air from
certain types of plants - e.g. smaller foundries and petrol stations - that fall outside the
scope of Part A)
–
Small waste incineration plants
–
Solvent emission activities
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Regulators’ powers
• Different regulators have a number of powers,
including:
– Power to remedy or prevent pollution of an EP
site (Reg 57)
– Set emission limits for water discharges
– Require information (including information
about emissions) Reg 60
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Permits
• Operators of a regulated facility must hold a
permit (Reg 7)
• Where a facility is operated by more than one
person, each must hold a separate permit
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Permits (2)
• When deciding whether to grant a permit, the
regulator must assess the operator’s competence
(Schedule 5, para 13)
– Are systems adequate?
– Does operator have any previous convictions?
– Is operator technically competent?
– Does operator have sufficient financial means?
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Types of permits
• Broadly speaking there are 2 types:
1. Standard Permits
Normally for facilities that pose low risk to
environment (simpler, faster and cheaper to
apply for)
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Types of permits
2. Bespoke Permits
Normally for higher risk facilities or facilities near
sensitive areas (e.g. groundwater, protected
habitats)
• Operator may choose which to apply for but EA
can refuse or invite operator to withdraw and
reapply
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Conditions on the Permit
• Planning Conditions The Six Tests:
• Para 206 NPPF and see DCLG Planning Practice
Guidance – 6/3/2014
• Necessary
• Relevant to IPPC
• Relevant to the Facility Permitted
• Enforceable and Precise
• Reasonable in all other respects
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Conditions on the Permit
• Environment Agency -v- Biffa Waste Services Ltd
[2006]
• Perception of an authorised officer
• Not ultra vires
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Appeals
•
Appeals under the EP regime are to the Secretary of State (or if in Wales, by the
Welsh Government). An operator can appeal against:
–
A regulator's refusal to grant, vary or transfer a permit, or refusal to accept the surrender
of a permit.
–
Any conditions imposed in a bespoke permit.
–
An enforcement, suspension or revocation notice.
(Regulation 31 and Schedule 6.)
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Non-compliance with Permits
• Necessity for systems
• RJ Compton : Fairfield Piggeries, Bradford Leigh
APP/PPCL/05/63
• Appeal against Rendering Permit Refused
• Evidence of failure to adopt effective systems
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Offences
• Principal offences under the EP Regs 2010:
– Operating a regulated facility (“RF”) without an
EP
– Operating a RF in breach of any EP conditions
– Failure to comply with an enforcement notice or
a suspension notice
(Regulation 38)
• Offences punishable by fine, imprisonment or
both (depending on whether tried in Mags or
Crown Ct)
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Enforcement
•
The relevant regulator can enforce the EP regime by:
– serving an enforcement notice (regulation 36)
– serving a suspension notice (regulation 37)
– serving a revocation notice (regulation 22)
– carrying out the necessary works itself and recovering the costs from the
operator (regulation 57)
– prosecuting
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Criminal Enforcement
• Environmental Offences: Definitive Guideline”,
published by the Sentencing Council, apply to the
sentencing of certain environmental offences,
regardless of the date the offence was committed.
• The Guidelines apply to both Magistrates and
Crown Courts in England and Wales.
• The Guidelines are intended to improve
consistency and reduce court reliance on caselaw
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“Knowingly Permitting”
• Walker and Son (Hauliers) Ltd v Environment
Agency [2014] EWCA Crim 100
• For a defendant to be guilty of "knowingly
permitting" the operation of a regulated facility on
his land without an environmental permit contrary to
the Env Permitting Regs the prosecution only had to
establish that he knew waste operations were
taking place; that he had allowed, or failed to
prevent, them; and that they were not being
performed in accordance with an environmental
permit.
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Walker and Son (Hauliers) Ltd v
Environment Agency
• The words "knowingly permit" did not relate to
the existence or scope of conditions attached to
the permit and there was no defence based on
the exercise of due diligence
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Criminal Enforcement
• R. v Southern Water Services Ltd [2014] EWCA
Crim 120
• A fine of £200,000 imposed on the water
company for discharging raw sewage into the
sea in breach of its environmental permit was
appropriate
• there was no good reason given for the delay in
fixing the broken pumps which had caused the
discharges
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R. v Southern Water Services
Ltd [2014] EWCA Crim 120
• There was the potential for serious harm to the
local economy and the company had a
persistent record of criminality.
• There would have been no basis for interfering
with the fine even if it had been substantially
greater.
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Enforcement by Contempt
Proceedings
• Environment Agency v Hughes and others [2014]
EWHC 2484
• Reg 42 permits High Court proceedings where
criminal proceedings would “afford an ineffectual
remedy against the person”
• Care must be taken with the drafting of the
Injunction Application
• Consider the positive obligations and set them
out clearly
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Enforcement by Contempt
Proceedings
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•
•
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Must specify – precisely what has to be done
A time for compliance
Avoid reference to further documents in the Order
Consider the corporate responsibility. If seeking
to injunct an “officer” of a company personally
then establish their precise involvement
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Private Civil Proceedings
• Barr v Biffa Waste Services Ltd [2012] EWCA Civ
312
• The judge had erred in dismissing a claim of
nuisance relating to smells emitted by a wastetipping site by extending the existing principles of
"reasonable user“
• The judge had considered that complying with the
terms of a permit meant that such use of the site
had been reasonable.
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Barr v Biffa Waste Services Ltd
[2012] EWCA Civ 312
• There was no basis for using a statutory scheme
to cut down private law rights and, in any event,
the permit did not authorise the emission of such
smells.
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Environmental Impact
Assessment
• Edwards & Others -v- Environment Agency &
Others No 2 [2008] UKHL 22
• A proposal by a manufacturing company to use
shredded tyres in partial substitution for the use
of conventional fuels, which the plant had
already been authorised to use, did not bring the
project within the remit of the EIA Directive, so
that the mandatory requirement in art.4(1) of that
Directive for there to be an environmental impact
assessment did not apply.
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Overlap with Town & Country
Planning
• Hopkins Developments Ltd -v- First Secretary of
State (1) N.Wiltshire DC (2) [2006] EWHC 2823
• Despite pollution control measures under LAPPC,
Inspector entitled to conclude that dust would
have unacceptable amenity impact
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Overlap with Town & Country
Planning
• Harrison v Secretary of State for Communities
and Local Government [2009] EWHC 3382
(Admin)
• The planning system, which had to determine
whether a development of land was acceptable
use in the light of the impact of those uses, was
distinct from the integrated pollution prevention
and control (IPPC) regime.
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Overlap with Town & Country
Planning
• Even where a site which had changed its use
from agricultural to the processing of animal byproducts had been granted a conditional IPPC
permit, an inspector was entitled to reach his own
conclusions as to the impact of the proposed
development on amenity, particularly the effect of
odour emissions, and whether the site under
consideration was the appropriate location for
such development.
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Appeal by C&G Concrete Ltd
•
•
•
•
•
Cement Batching Plant
Deemed Permit application was refused
Inquiry June 2006
Decision
Judicial Review Challenge Dismissed September
2007
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Appeal by C&G Concrete Ltd
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Appeal by C&G Concrete Ltd
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Appeal by C&G Concrete Ltd
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Case Study
•
•
•
•
•
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Tunnel Tech North Ltd
Newington near Bawtry
Mushroom Composting Facility
Permit
Conditions
Enforcement
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Acid Scrubber
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Biofilter
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Goody Water Tank
Air Collection System & Biofilter
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Goody Water Tank
Air Collection System & Biofilter
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Enclosed conveyor loading onto
open bunker roof loading point
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Bunker roof conveyor loading into
bunker
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Connection point into existing
scrubber system
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Statutory Nuisance (“SN”)
What is a Statutory Nuisance?
The 2 limbs:
• A SN must be either:
1. a common law nuisance; or
2. prejudicial to health
• In addition, the SN must fall into one of the
categories in Part III (sections 79 - 82) of the
Environmental Protection Act 1990 (EPA 1990)
(the “Part III Categories”)
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Common law nuisance?
• Two types:
1. Private nuisance
Usually caused by a person doing something on his own land that
they are entitled to do but which interferes with the rights of a
neighbour (e.g. by causing physical damage)
2. Public nuisance
An act that endangers the life, health, property, morals or comfort
of the public or obstructs public rights
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Meaning of “prejudicial to
health”
• Means the act is injurious or likely to cause
injury (s.79(7), EPA 1990)
• There must be a proven link between the
potential source and the specific health problem
• Difficult to prove (even with expert evidence)
therefore rarely relied upon
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The Part III Categories
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•
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•
•
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•
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Physical state of any premises ("premises" in section 79(1) includes land and
most vessels)
Smoke from premises
Fumes or gases (from private dwellings)
Dust, steam, smell or other effluvia from industrial, trade or business premises
Any accumulation or deposit
Keeping of animals
Insects from industrial, trade and business premises
Artificial light from premises
Noise from premises (including vibration)
Noise from a vehicle, machinery or equipment in the street
•
Any other matter declared by any enactment to be a statutory nuisance
(principally under the Public Health Act 1936)
Section 79(1)(a) - (h) of the EPA 1990
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Offence?
• Causing a statutory nuisance is not an offence in
itself
• The offences are:
– Breach of/failure to comply with an abatement
notice (served by LA) without reasonable
excuse
– Failure to comply with a court order (following
application by an aggrieved person)
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Exceptions and overlap with
EP regime
• Generally the rules on statutory nuisance do not
apply where the matter is already governed by
the environmental permitting or other similar
environmental regulatory regimes
• In particular s.79(1A) - (7B) of the EPA 1990
provides a number of specific exceptions to the
categories of statutory nuisance
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Specific Exceptions
•
•
•
•
•
•
Smoke emitted from private dwellings in smoke control zones (section
79(3)(i), EPA 1990)
Fumes and gases from premises other than private dwellings (section
79(4)).
Artificial light from airports, harbours, railways, bus stations and
goods vehicle depots (section 79(5B)).
Noise from aircraft (section 79(6))
Noise from traffic (as opposed to individual vehicles), armed forces or
political demonstrations (section 79(6A)).
Although the statutory nuisance regime does apply to Crown property
(subject to certain security exclusions), the Crown cannot be
criminally liable. Instead, the LA has to apply to the High Court for a
declaration that the Crown has acted unlawfully.
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Actions for Statutory Nuisance
• Who can take action?
– LA or person affected
• LA has duty to inspect its area and take
reasonably practicable steps to investigate
complaints - (s.79(1), EPA 1990)
• LA has duty to serve abatement notice where it
is satisfied that a SN exists or is likely to occur
or recur - (s.80(1) EPA 1990)
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Actions for Statutory Nuisance
(2)
• If recipient fails to comply with abatement notice
LA can abate the nuisance itself, including
carrying out works - s.81(3)
• LA can reclaim its reasonable expenses - s.81(4)
• LA can apply to court for an injunction if it thinks
abatement notice will be inadequate - s.81(5)
Recipient can appeal against notice to Mags Ct
within 21 days of service - s.80(3)
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Actions for SN (3)
• A person aggrieved by SN can apply to the Mags Ct
to request an order requiring abatement or prevention
of the SN (a “nuisance order”) – s.82 EPA 1990
• The complainant must first give notice to person
allegedly responsible for SN
– 3 days for SN arising from premises –
s.79(1)(g)
– 21 days for any other SN
• Court can issue nuisance orders, fines or order
compensation (up to £5,000)
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Defences
•
•
•
S.80(7) EPA 1990 provides a defence of using “best practicable means”
to prevent or counteract SN
Subject to a number of limitations
Can only be used in cases involving:
– The state of the premises, dust and effluvia etc, animals, insects and noise from
premises (section 79(1)(a),(d),(e) - (g)) where it arises on industrial, trade or
business premises
– Artificial light from industrial, trade or business premises or certain outdoor
sports facilities
– Noise from vehicles or machinery on a road being used for industrial, trade or
business purposes
– Smoke from a chimney
– Noise from premises or vehicles and equipment in the road where no section
60 notices are held authorising construction site noise under the Control of
Pollution Act 1974
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Environmental Health 2014
20 November 2014
Gill Hulme – Weightmans LLP
[email protected] Tel: 0151 242 1445
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Environmental Health 2014
Food Safety Law
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Food Safety Act 1990
Food “Any substance or product, whether partially processed or unprocessed, intended to be,
or reasonably expected to be, ingested by humans defined in Food Safety Act 1990 (Amendment)
Regulations 2004 - Includes liquid, water (once left tap), chewing gum.
Offence: Regulation 7
Rendering any food injurious to health by adding anything, using anything as an ingredient, taking
something out or processing/treating it
Regulation 9 – Inspection and seizure of food
If food fails to comply with food safety requirements or any food is likely to cause food poisoning or
any other communicable disease
Either serve notice to detain or seize it.
If notice is withdrawn/JP refuses to condemn it authority shall compensate the owner.
Can use voluntary procedure – but must be documented as per 3.4.9 of COP
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Notices and Orders
Regulation 10 – Improvement Notices for failure to comply with Regulations
Regulation 11 – Prohibition Orders
Served where there is a failure to comply with Regulations and that there is a risk of injury to
health by virtue of; the process, the construction, state or condition of the premises or equipment,
or the use of equipment. e.g. Vacuum packers
Serve on proprietor and fix to business
(4) Prevent being the proprietor for participating in the management of any food business
(6) Ceases to have effect when enforcement agency issue a certificate to that effect or the court
gives a direction to that effect
Regulation 12 - Emergency Prohibition Notices and Orders
1 days notice
Imminent risk of such injury
Regulation 13 - Emergency control orders
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Consumer protection
Regulation 14 – Food not of the nature, substance or quality demanded by the
purchaser.
Portsmouth TS v Jamie's Italian 2013
Regulation 15 – Falsely describes or presents food
Label which falsely describes the food or is likely to mislead as to the nature or
substance or quality of the food. Includes anybody who publishes an advert which
falsely describes food or is likely to mislead.
Euro Foods Group v Cumbria County Council 2013 Judge ordered rehearing as
duplicitous information. Separate offences under 15 (2) and (3) on same information.
Would have just been quashed had it not been for the fact that leading counsel did
not alert court to duplicity until final submissions. NB Can amend even to allege
separate offences outside normal 6 month rule.
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General Provisions
Regulation 19 – Registration and licensing of food premises
Regulation 21 – Defence of due diligence
Regulation 32 – Powers of Entry
Regulation 33 – i) obstruction of officer
Regulation 34 – Time limit. No prosecution shall be begun after either 3 years from
the commission of the offence or 1 year from its discovery by the prosecutor
(whichever is the earlier)
Regulation 35 – Punishment
7, 8 or 14 - £20K in Magistrates
33 (1) Statutory Max and/or 3 months prison (summary)
The rest – summary – stat max (£5,000) and/or 6 months imprisonment
Indictment – unlimited fine and/or 2 years
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Food Safety and Hygiene
(England) Regulations 2013
•
Came into force 31 December 2013
•
Food business operator “The natural or legal person responsible for ensuring
that the requirements of food law are met within the food business under their
control” (EC 178/2002 Ch1, Art3)
Check register/ask staff/who orders the food/invoices/other council
departments/serve notice for info/company search/business details displayed at
premises
Kol Curri v Westminster City Council 1999
R (on the application of Rasool v Tower Bridge Magistrates Court & Lambeth LBC
(interested Party) 2013- Evidential Picture
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Hygiene Improvement Notice
Regulation 6
Served by an authorised officer who has personally witnessed the contravention of the
EU Hygiene Regulations (852/2004, 853/2004. 854/2004, 2073/2005 and 2075/2005)
•
•
Formal action must be proportionate to breach (not for trivial or minor technical
breaches)
Record of non-compliance
•
Officer believes informal action will be unsuccessful
•
Consider LA’s enforcement policy- See R (on the application of Barons Pub Co
ltd) v Staines Magistrates Court &Runnymede borough Council & Director of
Public Prosecutions 2013
•
Not appropriate for continuing or transient situation
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Prohibition Orders
Regulation 7 – Hygiene Prohibition Orders
Successfully prosecuted for offence under the Regulations and that the
health risk condition Is satisfied.
Risk of injury to health relating to a process or treatment, the construction,
state or condition of the premises or equipment.
Court orders a prohibition of any of the above and can also prevent the FBO
from participating in managing a food business
- Authority must issue a certificate to lift
- Court must issue certificate if the FBO has been prohibited
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Emergency actions
Regulation 8 – Hygiene Emergency Prohibition Notices and Orders:
• Officer can serve EP Notice if health risk condition is fulfilled and there
is an imminent risk of injury to health.
•
Effect is to immediately close premises or prevent the use of equipment
or the use of a process or treatment.
•
Officer must apply to court for E.P. Order within 3 days of service of
notice (Day of service being day 1, must have a clear day)
•
Additional requirements; Contemporaneous notes, sketches and
photographs, samples of insects, dirt or other contaminants. If more
than 1 office/witness, check accounts are the same. Service – preferably
by hand.
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Defence of Due Diligence
Regulation 12(1) Took all reasonable precautions and exercised all due diligence to
avoid the commission of the offence by the accused or by a person under the control
of the accused.
(2) If they didn’t prepare the food and they carried out all such checks of the food in
question was reasonable in all the circumstances or
It was reasonable in all the circumstances for the accused to rely on the checks of
the person who supplied the food.
If alleging other persons fault or acting on their information then 7 days pre hearing or
1 month after first hearing, must provide information.
Regulation (29) Batch, lot or consignment
Regulation (32) Temperature control and Schedule 4
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Future developments
1
2
Should EHO inspection reports be made public?
76% Yes
Should food outlets be charged for hygiene inspections? 53% No
EHN July 2014
In 2013 280 offenders were sentenced for food safety offences (420 H & S non-fatal)
Prompted by Elliott review of Integrity and Assurance of Food Supply Networks.
New proposals for sentencing – Health and Safety Offences, Corporate
Manslaughter and Food Safety and Hygiene Offences Guidelines Consultation
November 14-18 February 2015
Food Information Regulations 2014 Come into force 13 December 2014
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Food Cases
Allan Rich Seafoods v Lincoln Magistrates Court 2009
FBOs who need approval must seek approval for the business to operate
Principal objective was to secure a high level of consumer protection with
regard to food safety
FBO meant the natural or legal persons responsible for ensuring that the
requirements of food law were met.
No availability to transfer an approval of an establishment from one FBO to another.
NB separate companies in this case
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Walkers Snack Foods Ltd. V Coventry City Council 1998
Privilege against self incrimination did not extend to employees who were not
authorised to speak on behalf of the company to an EHO, as the company only, and
not the employee was at risk of incrimination.
NB If it was a Director can’t use what he said in PACE interview to self-incriminate.
Monks v East Northamptonshire District Council 2002
An LA can Issue summons under the FSA ‘90 under its own name rather than in the
name of an individual.
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Case law review
Obtaining warrants
• R. (on the application of Allensway Recycling Ltd)
v Environment Agency [2014] EWHC 1638
(Admin)
– C operated a waste composting facility under a
permit issued by the EA.
– EA had significant concerns over widespread
abuse and risk of contamination of food chain.
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Allensway Recycling Ltd (2)
– C obtained warrants to search the business
and residential premises under Environment
Act 1995 s.108 and Sch. 18.
– C sought JR of magistrate’s decision to grant
warrants;
– C argued it was mandatory under s.108(6)
EA 1995 to give at least 7 days’ notice
before inspecting residential premises;
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Allensway Recycling Ltd (3)
Application refused:
In the case of residential premises 7 days’ notice
was not required where case was urgent
(Sch.18(2)(d) and where notice would defeat the
purpose of the proposed entry under Sch 18(2)(e)
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Disclosure of legal advice
• GW v Information Commissioner [2014] UKUT
130 (AAC) - Upper Tribunal (Administrative
Appeals Chamber)
– Appellant (A) lived in a “smoke control area” (designated
under Clean Air Act 1993).
– A asked local authority to use its powers under the
Environmental Protection Act 1990 to prevent neighbour’s
emissions from a wood-burning stove.
– Counsel advised LA that the only relevant powers were
under the Clean Air Act 1993
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GW v Information
Commissioner (2)
• A complained to the Local Government
Ombudsman (“LGO”);
• LA provided LGO with a copy of counsel’s
advice on a confidential basis;
• LGO refused A’s request to disclose the advice;
• A complained to the Information Commissioner
(“IC”);
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GW v Information
Commissioner (3)
• IC held that exception in Environmental
Information Regulations 2004 reg 12(5)(b) – i.e.
disclosure would adversely affect course of justice
• First-tier Tribunal upheld that decision;
• A appealed to the Upper Tribunal
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GW v Information
Commissioner (4)
• Upper Tribunal held:
– The FTT’s reasoning was wrong in law;
– If the LGO was forced to disclose the advice there
would be no weakening in the confidence of LAs
generally to obtain such advice
– However, on the facts there would be a potential
unfairness to the LA
– Exception in Reg 12(5)(b) therefore applied – but only
because of the unfairness to the LA and not because of
any weakening in the doctrine of legal privilege
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Crime and punishment
• R. v Williams (Heddwyn) [2013] EWCA Crim
1708 - Court of Appeal (Criminal Division)
– The appellant appealed against a sentence of six months'
imprisonment, suspended for two years, and a fine of £1,500 imposed
following his convictions for depositing controlled waste on land without
an environmental permit and failing to complete duty of care transfer
notes.
Held:
– The sentence was neither wrong in principle nor manifestly excessive.
– While many such offences might warrant a non-custodial penalty, the
defendant's history of similar offences and poor attitude towards
compliance with the law justified the recorder's conclusion that only a
custodial sentence would suffice.
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Crime and Punishment (2)
• R. v Allingham (David Edwin), R. v Allingham
(Freda Elizabeth) and R. v McKenna (John)
[2012] NICA 29 - Court of Appeal (Criminal
Division) (Northern Ireland)
– (Joined cases) appellants appealed against
sentences for convictions for keeping controlled waste
(contrary to the Waste and Contaminated Land
(Northern Ireland) Order 1997 art.4(1)(b) and 4(1)(c)
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R. v Allingham (2)
• Appellants (A) had received payments in return
for allowing waste to be buried on their land
(without a licence or payment of landfill tax);
• The issue was whether the lower court had
erred in finding that A had obtained a pecuniary
advantage within meaning of s.224(5)
Proceeds of Crime Act 2002
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R. v Allingham (3)
• A argued:
1. Although they had been convicted for
“keeping” the waste, they had not been paid
for “keeping” it, only for allowing the waste
to be deposited;
2. Evidence showed some of the waste had
been dumped prior to POCA 2002 coming
into force;
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R. v Allingham (4)
• Appeals dismissed:
– Distinction between allowing the waste to be deposited and
“keeping” it was artificial.
– Reality was A had been paid to provide an ongoing facility
to conceal the waste.
– Although it is a well-known principle that criminal offences
could not be retrospective the court was not considering a
criminal offence but receipt of a benefit from criminal
conduct.
– The legislation was silent as to the benefit that could be
considered, apart from s.158 which indicated that earlier
conduct could be considered.
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Duty of care?
• Sterling v Northern Ireland Environment Agency
[2014] NIQB 8
– NI EA revoked C’s certificate of registration (that
allowed him to transport waste) following a conviction
for illegal waste dumping.
– C successfully appealed against this decision.
– C then brought a claim in negligence against NI EA –
claiming it had negligently failed to advise him that his
certificate remained valid pending his appeal.
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Sterling (2)
• The Court held NI EA did not owe a duty of care
because:
– C failed to show NI EA assumed a responsibility
towards him.
– C had failed to show it was reasonable for him to rely
on the statements given by NI EA.
– The guidance given by NI EA was accurate; the fact
it was not comprehensive did not make NI EA liable
because it was not reasonable for C to rely on it
being comprehensive.
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The meaning of “waste”
• Brady v Environmental Protection Agency (C113/12) [2014] 2 C.M.L.R. 3 - European Court
of Justice (Fourth Chamber)
– The Court was asked to give a preliminary
ruling on the interpretation of EU Directive
75/442 art. 1(a)(i)
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The meaning of “waste” (2)
Q1: under what conditions could slurry produced in
a pig farm and stored pending transfer to farmers for
use as fertiliser be classified as “waste”?
• A: slurry was not “waste” but a by-product when:
1. producer intended to market the slurry on economically
advantageous terms;
2. re-use of the slurry was a certainty (without any further
processing being required)
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Meaning of “waste” (3)
Q2: was the burden of proof of showing that the
slurry was a “by-product” on the producer?
• A: EU law did not preclude the burden of proof
being on the producer (provided that did not result
in the effectiveness of the Directive being
undermined)
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Meaning of “waste” (4)
Q3: Where slurry was to be classified as “waste” did EU
law prevent a member state from making a producer
personally liable for compliance by the farmers with EU
legislation (re management of waste and fertilisers)
• A: Where slurry was classified as “waste” the Directive
prevented the producer from transferring the waste to a farmer
without the necessary permits (or exclusions) (art 8);
• Therefore, where a farmer did have the necessary permits (or
exclusions) the Directive effectively prevented the producer from
being responsible for the farmer’s compliance with EU law
following the transfer (art 8 and 10).
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• Questions
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