| NICA 32||Ref:||WEA9963|
|Judgment: approved by the Court for handing down||Delivered:||14/06/2016|
|(subject to editorial corrections)*|
WEATHERUP LJ (delivering the judgment of the court)
“"We formed the view that the environmental objectives set out in Schedule 3 paragraph 4 of the 2003 Regulations were unlikely to be achieved in the event that the exemptions were granted. In particular, it was considered likely that its future activities would cause harm to the environment, cause nuisance through noise or odours or adversely affect the countryside. For all of these reasons it was decided that the application should be refused.”"
The Waste Directive
Article 23 deals with the issue of permits and provides that Member States shall require any establishment or undertaking intending to carry out waste treatment to obtain a permit from the competent authority.
Article 24 provides for exemptions from permit requirements for establishments or undertakings in respect of the disposal of their own non hazardous waste at the place of production or recovery of waste.
Article 25 provides the conditions for exemptions. Member States shall lay down in respect of each type of activity, general rules specifying the types and quantities of waste that may be covered by the exemption and the method of treatment to be used. The rules are required to be designed to ensure that waste is treated in accordance with Article 13, that is, the obligation to ensure that waste management is carried out without endangering human health or harming the environment.
The Waste and Contaminated Land (Northern Ireland) Order 1997
Article 4(1)(a) and (b) prohibit the deposit, treatment, keeping or disposal of controlled waste without a waste management licence.
Article 6 provides for the grant of waste management licences.
Of significance in the present application is the inclusion of a “"fit and proper person”" provision in relation to waste management licences. Article 8(4) provides that the Department shall not refuse an application for a licence which has been duly made if it is satisfied that the applicant is a “"fit and proper person”" unless it is satisfied that such refusal is necessary for the purpose of preventing pollution of the environment, harm to human health or serious detriment to the amenities of the locality.
Article 3 provides for the approach to identifying a “"fit and proper person”" as follows -
“"(3) Subject to paragraph 4, a person shall be treated as not being a fit and proper person if it appears to the Department –
(a) that he or another relevant person has been convicted of a prescribed offence;
(b) that the management of the activities which are or are to be authorised by the licence are not or will not be in the hands of a technically competent person; or
(c) that the person who holds or is to hold a licence has not made and either has no intention of making or is in no position to make financial provision adequate to discharge the obligations arising from the licence.
(4) The Department may, if it considers it proper to do so in any particular case, treat a person as a fit and proper person notwithstanding that paragraph (3)(a) applies in his case.”"
The Waste Management Licensing Regulations (Northern Ireland) 2003
Regulation 17(1) provides -
(1) Subject to the following provisions of this regulation and of regulations 18, 19 and 20 and to any conditions or limitations in Part I of Schedule 2, Article 4(1)(a) and (b) of the 1997 Order shall not apply in relation to the carrying on of any exempt activity.
The key provision is contained in Regulation 17(4) (with italics added) -
(4) Paragraph (1) only applies in relation to an exempt activity by an establishment or undertaking if -
(a) the type and quantity of waste submitted to the activity, and the method of disposal or recovery of waste is consistent with the need to attain the objectives mentioned in paragraph 4(1)(a) of Part I of Schedule3;
(b) any information required under regulation 18(3) and 18(5) and the fee (if any) required under regulation 18(12) have been sent to the Department in the manner specified therein.
“"4(1) For the purposes of this schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste –
(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular:
(i) without risk to water, air, soil, plants or animals;
(ii) without causing nuisance through noise or odours;
(iii) without adversely affecting the countryside or places of special interest.”"
Paragraph (1) creates an offence for an establishment or undertaking to carry on an exempt activity without being registered with the Department.
Paragraph (2) provides for a register that contains the following particulars in relation to each establishment or undertaking which carries on an exempt activity -
(a) the name and address of the establishment or undertaking, its telephone number and, if applicable, fax number and e-mail address;
(b) the activity which constitutes the exempt activity;
(c) the place or places where the activity is carried on; and
(d) a copy of any information received by the Department under paragraphs (3) and (5).
Paragraph (3) provides that the Department shall enter the particulars in the register in relation to an establishment or undertaking if it receives notice of them in writing provided on behalf of that establishment or undertaking and accompanied by a plan of each place at which any such exempt activity is carried on and at (iii)(e) that registration has not been refused under regulation 20.
“"(1) The Department may refuse to register an exempt activity in the event that the activity or, as the case may be, the content of the notification under regulation 18 does not comply with any requirements of regulations 17(4), 18(2) and 18(3) or any conditions or limitations set out in respect of the exempt activity in regulation 19(1) and 19(2) and in Parts I and II of Schedule 2.
(5) Subject to paragraphs (6) and (7), the Department may revoke the registration of an exempt activity where it is satisfied that -
(a) the establishment or undertaking to which the relevant entry relates no longer exists or has ceased to carry out that activity; or
(b) the activity is no longer being carried out in compliance with the conditions or limitations of the relevant paragraph of Part I of Schedule 2 or with the relevant provisions of regulation 17(2) or (4); or
(c) there has been a breach of any of the registration obligations applicable to that activity.”"
The Grounds of Appeal
(1) The learned judge erred in his conclusion that upon considering an application for the registration of an exemption from waste managing licensing requirements, pursuant to Regulations 17 to 20 of the Waste Management Licensing Regulations (NI) 2003, the Department was precluded from taking account of the identity of the proposed operator. In particular the learned judge erred in his conclusions that:
(a) Upon an application for the registration of the exemption the Department would not have available to it information about how the activities were likely to be carried out by the proposed operator or that refusal based upon such an assessment would involve the Department in making a finding of non-compliance prior to commencement of activities.
(b) Consideration of the identity of the proposed operator would amount to the imposition of a form of fit and proper person test.
(c) Individual persons were not “"establishments or undertakings”" within the meaning of Regulation 18 of the Waste Management Licensing Regulations (NI) 2003 with the result that individual persons carrying on exempt activities were not required to register an exemption.
(d) The availability of enforcement powers to revoke an exemption or to issue a notice under Article 27 of the Waste and Contaminated Land (NI) Order 1997 together with a criminal sanction for non-compliance with an exemption under Article 4 of the 1997 Order precluded consideration of the identity of the proposed operator.
(2) The learned judge erred in the above conclusion insofar as the result is inconsistent with the requirement in Regulation 17(4) of the Waste Management Licencing Regulations (NI) 2003 that an exemption from Waste Management Licensing Requirements may only be registered in relation to an establishment or undertaking if the type and quantity of waste submitted to the activity and the method of disposal or recovery is consistent with the need to attain the environmental objectives set out in paragraph 4(1)(a) Part 1 of Schedule 3 of the 2003 Regulations.
(3) By concluding that the Department had no power to take account of the identity of the proposed operator when deciding to refuse an application for registration of a waste management licensing exemption in circumstances where the Department was satisfied that the environmental objectives set out in paragraph 4(1)(a) Part 1 of Schedule 3 of the 2003 Regulations were unlikely to be achieved the learned judge failed to interpret the 2003 Regulations in a manner which gave effect in national law to the requirements of Articles 13, 24 and 25 of Directive 2006/12/EC on Waste (the Consolidated Waste Framework Directive) contrary to the principle of supremacy of EU law and the obligation of consistent interpretation of domestic law established in C/106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA.
The question at the heart of all three of the grounds of appeal is whether the combination of Regulations 17, 18 and 20 of the 2003 Regulations preclude the NIEA from taking account of the identity of a proposed operator when determining an application for an exemption from waste management licensing.
The interpretation of the Regulations
Grounds of appeal (1) and (2)
Ground (1)(c )
A purposive interpretation.
Ground of appeal (3) - Interpretation of domestic law in accordance with the purpose of the Directive
Article 10 provides, in relation to the recovery of waste, that Member States shall take the necessary measures to ensure that waste undergoes recovery operations in accordance with Articles 4 and 13.
Article 4 establishes a waste hierarchy to apply as a priority order in waste prevention and management legislation and policy as (a) prevention, (b) preparing for reuse, (c) recycling, (d) other recovery e.g. energy recovery and (e) disposal.
Article 13 imposes on Member States the duty to take the necessary measures to ensure that waste management is carried out without endangering human health or harming the environment.