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(2010) Env LR 41 : Times, June 22, 2010, Court of Appeal -
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In determining whether material was "waste" for the purposes of offences of unauthorised or harmful disposal and deposit of waste under the Environmental Protection Act 1990 s.33, a judge had erred in concentrating entirely on the defendants' intentions to put the material to immediate use. The question of whether it was waste should have been left to the jury.
The appellant Crown appealed against a decision that the respondents (P, T and W) had no case to answer in relation to offences under the Environmental Protection Act 1990 s.33. P, T and W had been charged with knowingly permitting the deposit of controlled waste contrary to s.33(1)(a) and s.33(6) of the Act and with keeping or disposing of controlled waste contrary to s.33(1)(b)(i) and s.33(6). P and T owned a farm and W was its manager. Some 9,126 tonnes of soil and subsoil had been extracted from neighbouring land and deposited onto their land with no waste management licence. They had been paid £20,000 to £25,000 to receive the materials. They had used the material to create a horizontal platform which extended outwards from the hillside in a wedge, the object being to raise the level of land to build a cattle shed. The farm was set in an area of substantial beauty in a Special Area of Conservation. The judge indicated that material could start as waste but cease to be waste, and that it was necessary to ask whether the new holders discarded it. He indicated that the material represented a valuable commodity to P and T, and that that was a pointer against its being waste. He also indicated that there was not the slightest element of "discarding" in the use to which they put the material immediately upon its deposit. He therefore accepted that the Crown had failed to establish that the material was "waste" and held that, even if it was waste, there was no evidence that it was controlled waste. The Crown argued that the judge had erred in finding that the offence had to be judged at the time when the materials came into the possession of P, T and W, and that waste did not cease to be such simply because the recipient had a use for it.
HELD: Given the findings of fact in Environment Agency v Inglenorth Ltd (2009) EWHC 670 (Admin), (2009) Env LR 33 and the nature of the materials involved, the material deposited in that case could properly be considered not to be waste within the meaning of the Act at the date of deposit. However, the question of immediate re-use of the relevant material could not be entirely determinative of its status regardless of other considerations, and the judge had erred in concentrating entirely on the intentions of P, T and W to put the material to immediate use, Department of the Environment and Heritage Service v Felix O'Hare & Co Ltd (2007) NICA 45, (2008) Env LR 28 applied and Inglenorth considered. Excavated soil which had to be discarded was capable of being waste and ordinarily would be. Having become waste, it remained waste until something happened to alter that. Whether such an event had happened was a question of fact for the jury. The possibility of re-use at some indefinite future time did not alter its status. Actual re-use might do so but only if consistent with the aims and objectives of the 1990 Act and Directive 2006/12, principally the avoidance of harm to persons or the environment. In the instant case, the Crown's main concern was for the environment around the village where the farm lay, as a Special Area of Conservation, and for visual amenity in the area generally. Those matters were readily capable of assessment by a jury in deciding whether any material in issue was in fact "waste". Accordingly, the judge had been in error in assessing the status of the materials entirely by reference to P, T and W as holders. It was open to the jury to find that the materials had been waste from the moment of excavation at the neighbouring farm, before P, T and W became holders. The additional question was whether the materials ceased to be waste because of the intended and actual use of them by P, T and W as the new holders, and that was also a question of fact for the jury. At the close of the Crown's case, there was undoubtedly evidence to go to the jury which would entitle it to find that the materials were waste that was required to be disposed of by the producers and the hauliers and that P, T and W had been paid to relieve that need on their part. If satisfied that the materials were waste at that stage, the further question that remained for the jury was whether, having regard to the aims of the Directive, they ceased to be waste. If there was a case to go to the jury on that point, there clearly was a case to answer that the materials were controlled waste, having regard to the definitions contained in s.75 of the Act. If the materials were waste, the onus of showing that it was not controlled was on P, T and W. For those reasons, the submission of no case to answer had been wrongly accepted.
Counsel for the appellant: Gary Lucie, Malcolm Galloway