Out-Law News 3 min. read
14 Feb 2014, 10:46 am
According to the Court of Appeal's judgment, haulage firm Walker and Sons allowed a contractor to carry out illegal waste activities on its land in breach of the Environmental Permitting Regulations (EPR). The offence of "knowingly permitting" it to do so was triggered despite the fact that it had not known that the contractor was bringing waste to the site, only that it had carried out some burning, according to the judgment.
"The words 'knowingly' and 'permit' relate to knowledge of the facts and not as to the existence and scope of the permission or conditions of a licence," said Mr Justice Simon.
"The prosecution does not have to show that a defendant knew that the matters of which it was aware were not permitted. There are good reasons for this: there are means of checking the existence and conditions of environmental permits, and ignorance of these matters should not be a defence to an environmental offence," he said.
He added that it was "clear" from the explanatory information attached to the draft of the earlier 2007 EPR regulations that strict liability in environmental regulation was "a deliberate choice ... made in order to secure higher environmental standards" and that "there should no longer be a due diligence defence"
The EPR make it a criminal offence to 'knowingly permit' the operation of a regulated facility without an environmental permit or in breach of conditions set out in an environmental permit. The case centred on the definition of these two words – "knowingly" and "permit". According to the prosecution, all that was required to prove the offence was that the company had knowingly permitted the waste operation, and that as a matter of fact the operation was not in accordance with an environmental permit. Lawyers for Walker & Sons instead argued that the prosecution had to prove two things: firstly, that the firm knowingly permitted the waste operation; and secondly, that it knew that the operation was not in accordance with an environmental permit.
Eluned Watson, a specialist environmental defence lawyer at Pinsent Masons, the law firm behind Out-Law, said that "the Court of Appeal, on considering case law in similar offences under earlier legislation, has taken a narrow interpretation of the words 'knowingly permitted'. This means that for the defendant to be found guilty, it is enough for it merely to know that the waste was deposited. It does not also need to know that the deposit was in breach of a permit for the offence to have been committed".
"Essentially, the judgement is an important reminder to owners and occupiers that they must ensure that waste operations being carried out on their properties are fully compliant with the EPR. The offence is one of strict liability and a lack of knowledge of the facts is no defence to the law," she said.
"Where waste operations are carried out it is important to check whether the necessary environmental permits are in place and whether the conditions of the permits are being complied with," said Watson.
Walker and Sons had purchased the land on which the offence had taken place in 2008 with a view to redevelopment. It later awarded a contract to Bloom (Plant) Ltd to demolish empty buildings on the site. The Court of Appeal noted that after the contractor began demolition operations, the local authority started to receive complaints from local residents about fires on the site and "acrid and choking" fumes.
When Bassetlaw District Council observed the site, it saw that "activities were taking place which should have been the subject of an environmental permit, including burning", according to the judgment. It later emerged that the site was being used by the contractor as an illegal waste transportation station and to burn waste. Neither Walker and Sons nor its employees were involved in these activities. Richard Walker, the director of the company, said that he had seen fires and crushing machines on site but had assumed that these were for activities connected with the demolition works that the company had hired Bloom to carry out.
Mr Justice Simon said that Walker "knew of some burning at the site, albeit he [knew] nothing of the substantial importation of wastes by others". Burning and crushing activities at the site would have required a valid environmental permit, regardless of the material being processed, he said.
"The law required that [Walker] ensure that what was happening was compliant with the conditions of an environmental permit," he said. "It would be no defence to say that he had been told lies."
Eluned Watson concluded that "the judgement was a useful analysis by the Courts of the meaning of knowingly permitting'. It is a timely reminder of the need to be extremely vigilant in EPR compliance, especially as the Sentencing Council will shortly publish its guidelines on sentencing environmental offences which are likely to result in a significant shift towards higher fines for waste offences going forward".