England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		22nd May 1997

MR JUSTICE CARNWATH: These are two expedited applications for judicial review. They raise the same issue, which concerns the interpretation of a European regulation (No. 259/93.). That regulation concerns -

"the supervision and control of shipments of waste, within, into and out of the European Community"

I shall refer to it as the "Shipments Regulation". It has direct application in this country. The respondent, the Environment Agency, is primarily responsible (under the Environment Act 1995) for its enforcement.

Background facts

The applicants are both UK companies, concerned in the importation of specific types of waste for the purpose of metal recovery. I will deal principally with the facts of Dockgrange Ltd, which are sufficient to illustrate the problem. Their waste is imported from two particular sources at present, one in Holland and one in Germany, to their site at Bloor's Wharf at Gillingham, Kent. Dockgrange have specially designed machinery for the further processing of the waste for the recovery of metals. They sell the recovered metal to recognised scrap dealers in the UK. The unwanted material is sent to landfill.

They have been operating this business since January 1994 and they have a waste management licence under the Environment Protection Act 1990. The operation was initially regulated by Kent Waste Regulatory Authority, but from 1st April 1996 this jurisdiction passed to the Environment Agency. The waste which Dockgrange imports has already been through various processes at plants in Holland and Germany. Dockgrange's activities are the last stage in the cycle. The processes are described as follows in the affidavit of Mr Harvey, Director of Dockgrange :

"The cycle can be broken down into the following processes:

●    Shredding or fragmentation of scrapped metal goods;

●    Cyclone and magnetic processes;

●    Flotation Plant process.

The Fragmentation, Cyclone and Magnetic processes:

Material enters the cycle as scrapped goods such as cars, fridges, washing machines, cookers and office shelving. These scrapped goods are shredded by a fragmentiser plant. The resulting mixture contains ferrous and non-ferrous metals and varying amounts of plastic, glass, rubber, fabric, paper, wood and small amounts of dirt or soil. There are also small amounts of polychlorinated biphenyls (PCBs) which have traditionally been used in cars and fridges as a conductor. The shredded mixture is then put through a cyclone plant (i.e., a type of suction system) which removes the light material or 'shredder fluff'. The fluff having been removed, the remainder of the mixture is passed over a magnet to remove ferrous scrap (i.e. iron, steel and other ferrous compounds). The mixture which is left is known as 'non-ferrous fragmentiser waste' and contains non-ferrous metals (namely aluminium, copper, brass, tin, magnesium, gold and silver), a small amount of ferrous metal which was not removed at the magnet stage, and the varying amounts of plastic, glass, rubber, cloth, paper, wood and small amounts of dirt or soil referred to above. The mixture is then sent to a separate recovery process at a flotation plant such as Van Balkom in Holland and Indra in Germany. It is also sent to flotation plants in the UK (eg, Mayer Parry Recycling Ltd or Allied Metals Ltd.).

The flotation plant comprises 5 stages:

(a) the screening stage - which removes material under 10mm² (this material is known as 'fines' and this is not currently being imported by Dockgrange);

(b) washing - which removes the soil, wood, fluff, paper and also light plastics;

(c) the first flotation stage - which removes material with a density under 2:1. This removed material comprises a mixture of rubber, magnesium and light aluminium with a small amount of plastic. This mixture (referred to in this affidavit as 'Mixture 1') is the main material which Dockgrange imports to the UK. The material with a density over 2:1 is then sent through the second flotation process;

(d) the second flotation process - which removes material with a density over 3:1 (being primarily heavy metals such as copper, zinc, brass and stainless steel);

(e) the linear plant separator (i.e. a magnetic based separation system) - which produces 2 streams namely: (i) a high grade scrap aluminium and (ii) mixed aluminium, stone, cable and some iron. This second stream ( referred to in this affidavit as 'Mixture 2') is the other mixture which Dockgrange imports."

Mayer Parry's activities are similar, save that it has its own flotation plant in the UK, and so it imports material one stage earlier in the cycle.

The Shipments Regulation

Council Directive 75/442/EEC of 15th July 1975 on Waste provides the background for the Regulation. It laid down the requirement for an integrated system of control of waste disposal installations in member states. The Preamble to that Directive emphasised the need to protect human health and the environment against the harmful effects of the collection, transport and treatment of waste, but it also emphasised that -

"the recovery of waste and the use of recovered materials should be encouraged in order to conserve natural resources."

The Preamble to the Shipments Regulation explains that its purpose is the need to -

"organise the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment."

The Regulation regulates the shipments of waste for recovery, by

listing three categories of assigned waste (green, amber and red), which

attract differing degrees of regulatory control. The Preamble explains that -

"Shipments of waste for recovery listed on the green list of the OECD decision shall be generally excluded from the control procedures of this Regulation since such waste should not normally present a risk to the environment if properly recovered in the country of destination...".

Thus, the green wastes are those which are regarded as posing the least environmental problems, and which therefore attract the least restrictive regime.

Annexes II, III and IV contain detailed lists respectively of green, amber and red wastes. For green wastes no prior notification of the authority is required but the shipments have to be accompanied by certain information in accordance with Article 11.1, which provides:

"In order to assist the tracking of shipments of waste for recovery listed in Annex II, they shall be accompanied by the following information, signed by the holder -

(a) the name and address of the holder;

(b) the usual commercial description of the waste;

(c) the quantity of the waste;

(d) the name and address of the consignee;

(e) the operations involving recovery as listed in Annex II.B to Directive 75/442/EEC;

(f) the anticipated date of shipment."

Amber wastes are subject to a more elaborate form of control in accordance with Articles 6 to 8. Prior notification of the competent authority is required, accompanied by detailed information as to the source, composition and quantity of the waste and other details (Art 6.5). The authority must acknowledge the notification within three working days, and within 30 days thereafter may make a reasoned objection to the planned shipment. If no such objection is lodged within the 30 day period, the shipment has what is called "tacit consent", which lasts for one year (Art 8).

Red wastes and "unassigned wastes" are governed by Article 10 which provides:

"Shipments of waste for recovery listed in Annex IV and of waste for recovery which has not yet been assigned to Annex II, Annex III or Annex IV shall be subject to the same procedures as referred to in Articles 6 to 8 except that the consent of the competent authorities concerned must be provided in writing prior to the commencement of shipment."

Thus, in this case express rather than tacit consent is required. There is no specific time limit within which such consent has to be given.

The Shipments Regulation followed Community approval of a decision of the OECD Council, dated 30th March, 1992, dealing with the control of transfrontier movements of wastes for recovery. The detailed lists in the Annexes are largely taken from that decision. There was however the significant difference that, in the OECD decision, there was no specific provision for unassigned waste.

Within the green list, special provision is made to deal with exceptional cases, by Article 1.3 (c) and (d). Under (c) certain wastes listed in Annex II may be treated as if they had been listed in Annex III or IV, if they "exhibit any of the hazardous characteristics listed in Annex III to the Directive on Hazardous Waste." Decisions as to the wastes to which this provision applies have to be determined in accordance with Article 18 of the 1975 Waste Directive, which enables the Commission to present proposals to a committee of representatives of the member states. There is provision in that Article for the chairman to lay down a timetable "according to the urgency of the matter".

Article 1.3(d) provides:-

"In exceptional cases, shipments of wastes listed in Annex II may, for environmental or public health reasons, be controlled by member states as if they had been listed in Annex III or IV."

Member states who take such action have to notify the Commission immediately and other member states as appropriate, and give reasons. The Commission may, in accordance with the Article 18 procedure, confirm such action.

There is provision for amendment of the lists contained in the Annexes to the Shipments Regulation, but only after agreement under the OECD procedures. Article 42 (3) provides that, without prejudice to the procedures in Article 1.3(c) and (d), the Annexes:

"shall be adapted by the Commission in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC only to reflect changes already agreed under the review mechanism of the OECD".

By Article 26, any shipment of waste effected in contravention of the requirements of the Regulation "shall be deemed to be illegal traffic". Member states are required to take appropriate legal action to prohibit and punish illegal traffic. That is done in this country by the Trans-frontier Shipment of Waste Regulations 1994. Article 12 enacts various offences consisting of contraventions of the provisions of the Shipments Regulation. By Article 14 (1) it is a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence. Penalties may include imprisonment for up to 2 years (Art 15).

Under the Treaty, the juridical basis for the Shipments Regulation is Article 130r, which is concerned with protection of the environment. Article 130r (2) provides:

"Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations of the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventative action shall be taken, that environmental damage should as a priority be rectified at source, and that the polluter should pay."

In European Parliament -v- Council of European Union [1995] 2CMLR 309, the European Court confirmed that it was under this Article of the Treaty (as opposed to Article 100a, which relates to the completion of the internal market) that this Regulation was adopted. I mention this because some importance was attached by each party to statements made in that case as to the purpose of the Regulation. However, I did not find those of great assistance in dealing with the specific problem posed by this case, which was not before the Court.

I have also been shown a number of documents relating to discussions between member states on the interpretation of the Regulation, and some of the guidance material put out by the bodies concerned. Again, I do not find this of great assistance in dealing with the particular issue, which must be a question of construction of the provisions of the Regulation itself, in accordance with ordinary principles of construction applicable to European legislation. In particular it has to be borne in mind that this is a penal provision, and therefore "may not be applied extensively to the detriment of the defendant" (see Procura della Republica -v- X [1997] 1 CMLR 399, 420).

The issue

It is Dockgrange's case that the waste which it imports falls within the green list, because each constituent of the waste mixture can be identified as one listed in Annex II. Thus, Mixture 1 comprises aluminium, magnesium, rubber and plastic, and small quantities of gold, silver, wood and fabric. Each of those materials is specified in Annex II. Mixture 2 comprises a different set of components, but again they all are listed in Annex II. Accordingly, from April 1994 they imported these Mixtures under the green list procedure. This was initially queried by Kent WRA, and a stop notice was served in May 1995 pending further investigations. In September 1995 however, they were permitted to continue importation under this procedure.

In April 1996, the new Environment Agency became responsible. The Environment Agency was established under the Environment Act 1995, under which it took over, inter alia, the functions of the Waste Regulation Authorities. It is designated as the "competent authority for England and Wales for the purpose of the Shipments Regulation and the Transfrontier Shipment of Waste Regulations 1994. Its powers include the power to institute criminal proceedings (s.37(1)).

On 29th April, the Waste Control Officer for the Kent region wrote to Dockgrange informing them that: "Car fragmentiser waste... including all fragmentiser waste previously moved as green list waste" should henceforth be shipped according to the amber list procedures. Correspondence followed with Dockgrange's solicitors, and on 17th May the Environment Agency wrote indicating that its decision had been deferred pending a review of national policy. In the meantime, Dockgrange was allowed to continue to use the green list procedure. On 16th August the Agency wrote indicating that it had reached a decision, the effect of which was that "car fragmentiser waste" was a discrete category of waste, not listed in Annexes II to IV, and therefore had to be treated as unassigned waste and the red list procedure applied to it. This decision was to operate from 1st October 1996.

The letter drew attention to the fact that only one element of fragmentiser waste - "fluff light fraction from automobile shredding" - is separately assigned in the Annexes, under the amber list. It is in fact removed by the first stage of the recovery cycle after shredding, and is not imported by Dockgrange. It is imported by Mayer Parry Ltd, and is treated as a separate item under the amber list procedure.

Following that decision, Dockgrange has not imported any waste mixtures since 1st October 1996. This has caused serious difficulties. This is not only because delay is caused by the need to obtain consent before despatch, but also because of the differences of view between the different countries. The German authorities directly concerned have traditionally treated the different waste mixtures from fragmentiser plants as green list waste, and therefore have been reluctant to process a red list notification. No notification has yet been received from the German authorities by the Environment Agency. In the meantime, Dockgrange's business has "ground to a halt". Unless the situation is resolved in the near future, it is likely that Dockgrange will cease trading.

The problem has been the subject of consideration by the "EU correspondents' meeting", which is an advisory group under Article 37 (2) of the Shipments Directive, intended to seek to ensure a common interpretation of the Regulation. The group is currently preparing guidance on this and other waste policy issues. In the meantime, there are different approaches. It is understood that Italy and Belgium regard the mixtures as coming within the green list. In Germany the approach appears to vary amongst the local authorities dealing with the matter. In the Netherlands, again, procedures apparently vary. I was referred to a judgment of the Regional Environment Court at Zutphen in the Netherlands, which supports the view that, if each constituent is listed in the green list, the mixture itself is to be treated as green; but the reasoning of that judgment is not very fully stated, at least in the unofficial transcript that I have seen.

The economic impact on Mayer Parry is serious but not as extreme as in Dockgrange's case. Mayer Parry has applied to the OECD to have its waste mixture expressly listed under Annex II as green list waste or under Annex III as amber list waste. No final decision on that application is expected for some two years.

The form 86A seeks judicial review of the Agency's "decisions/policy to take enforcement action against the applicant as from 1st October 1996". The short point of law as stated in the grounds is as follows:

"On the proper interpretation of EEC Regulation 259/93 Article 10, is a mixture of green listed assigned wastes to be regarded as "unassigned" waste subject to red list procedures?"

It is to be borne in mind that this issue would be a matter for a criminal court should criminal proceedings for an offence be instituted. Although the normal prosecutor would be the Agency, there is nothing in the legislation which would preclude a private prosecution. Often, the court is reluctant to make declarations where it would pre-empt the decision of the criminal court charged with the facts of a particular case. (see Imperial Tobacco -v- A.G. [1981] AC 718). However, in this case, no criminal proceedings have yet been commenced, and it is vitally important for all parties to know what the legal position is, so that they can order their affairs accordingly. I am satisfied therefore that it is appropriate to rule on this issue.

Construction of the Regulations

Although Mr Fordham has taken me in detail through the provisions of the various directives and regulations, with a view to establishing the general scheme of the legislation, the answer must turn principally on the wording of Article 10 itself and the other provisions directly related to it in the Regulation. However, I agree with the applicants that ordinary principles of purposive construction and proportionality argue in favour of adopting a solution which does not involve their clients being put out of business for no sensible reason, so long as there is an alternative construction which avoids that result, and which does not have unacceptable consequences in relation to the scheme of the Regulations as a whole.

The first point to note is the definition of "waste". Article 2 adopts the definition in the 1975 Waste Directive, which is as follows:

"Waste shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard."

Annex I defines "Categories of Waste" which are expressed in relatively

general terms, for example:

"Q1 Production or consumption of residues not otherwise specified below..... and

Q16 any material, substances or products which are not contained in the above categories."

This can be contrasted with the Annexes to the Shipments Regulation which specify wastes by reference to their individual composition. Thus, it seems likely that where Article 10 refers to "waste", rather than "categories of waste", it is referring to individual forms of waste as defined in the Annexes. This is consistent with Article 1.3 (c) and (d), which speak, in the plural, of "wastes" listed in Annex II. There is nothing however to suggest that in other parts of the Regulation, the singular may not include the plural where appropriate. Thus, for example, there seems no reason why a particular shipment should not include a number of different "wastes", nor (if they are amber wastes) that the "notification" under Article 6 should not give details of a number of different "wastes" within one notification.

If this is correct, then the question is whether it is necessary for each waste to be separately identifiable within the shipment, or whether it matters if they are mixed. There is nothing in Article 10 itself which says that wastes may not be mixed. If one simply applies the words to the present case, the individual components of the mixture are all listed in Annex II, and therefore it cannot be said that they are shipments of "wastes... which have not yet been assigned to Annex II". It would be different if, in accordance with the Mayer Parry proposal, the combined mixture were itself the subject of a separate listing in one of the Annexes. One would then be dealing with wastes which had been assigned, both as individual components and as a mixture. The requirements in respect of the components would become irrelevant, insofar as they are less onerous than those applying to the mixture. The latter would have to be complied with in accordance with Article 6. Apart from such a specific listing, there is nothing in Article 10 in my view which means that a mixture, per se, is to be treated as a different form of waste.

However, Article 10 also has to read with Article 11. It must be possible for the shipper to comply with the requirement to provide "the usual commercial description of the waste", and the quantity of the waste. Where the shipper is seeking to rely on the fact that the components are assigned as individual wastes, Article 11 must be applied to those individual components. Thus, not only must he be able to give the usual commercial description of each individual component, but he must be able to give its quantity. It is not enough that he gives the quantity of the mixture. In the present case I was told, and it was not disputed, that while the quantities of the components cannot be given precisely, they can be given to an accuracy of at least 95%. If that is correct, it seems that substantial compliance with Article 11 is possible.

One may also approach the matter the other way round. There being no statutory provision which determines when a mixture of wastes becomes a separate waste in its own right, one can take guidance from Article 11. So long as it is possible to secure substantial compliance with Article 11 by reference to the individual components, there is no reason to treat the fact that they occur in combination as turning them into a new form of composite waste.

Mr Findlay, for the Agency, said that the Regulation must be interpreted in accordance with the governing "precautionary principle" laid down by the Treaty. The allocation of unassigned wastes to the red category was consistent with this principle. I do not dissent from that approach. Where there is legitimate room for uncertainty, then the precautionary principle argues in favour of a more restrictive approach until the facts are known. However, that is no justification for applying a restrictive approach, where, as here, the facts are known and the mixture in question is known to consist entirely of green waste.

He also points to the fact that some of the forms of waste listed in the Annex are themselves mixtures. The most obvious example is AD 160, Municipal Household Wastes, which appears in the amber list. He says that the controls would be unworkable if that could be treated as an amalgam of the individual component wastes. I agree. That illustrates the importance of looking at Article 10 in conjunction with the procedural provisions. Even assuming the individual components of the municipal waste were capable of being identified as individual items in the green list, which seems highly unlikely, it is even more unlikely that it would be possible to identify the quantities involved. Furthermore, since the mixture in this case is subject to an assignment to the amber list, it would be necessary in any event for the procedures applicable to that (under Article 6) to be complied with.

It should also be noted that there is a specific provision dealing with contamination of wastes in the green or amber lists. The introduction to Annex II (referred to, apparently, as the "chapeau") provides as follows:

"Regardless as to whether or not wastes are included on this list, they may not be moved as green waste if they are contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red list, or (b) prevents the recovery of the waste in an environmentally sound manner."

There is a similar "chapeau" in Annex III. Thus, quite apart from the specific provisions of Article 1.3(c) and (d), the green list cannot be relied on unless the materials in question are free from harmful contamination.

Some reliance was placed by both parties on Article 29 which provides:

"Wastes which are the subject of different notifications shall not be mixed during shipment."

It was suggested, for example, that, by implication, wastes could be mixed before shipment. I do not think that Article helps. It is not dealing with the mixing of "wastes" as such, but with the mixing of waste or wastes from different notifications. The purpose no doubt is that the waste or wastes included in any particular notification should be kept separate, so that the notification can be verified.

The Regulation does not satisfactorily address the problem of mixed wastes. This is probably because of the adoption of the OECD lists, which were designed for a regime which did not have the catch-all provision for unassigned waste. Under the OECD regime mixed waste would either have to be dealt with under the individual components, or they would have fallen out of control altogether. The latter conclusion raises its own problems, which are not before me. I have, however, been shown a guidance manual for the OECD system, which includes a chart suggesting that if a waste is not on the green, amber or red list, then the only question is whether it is "considered hazardous by any concerned country"; if not, it is uncontrolled by the OECD system. The OECD decision itself (dated 30th March 1992) envisages the possibility of mixing, since it provides (Part 2 para (8)):

"if two or more lots of waste are mixed and/or otherwise subjected to physical or chemical transformation operations, the person who performs these operations shall be deemed to be the generator of the new waste resulting from these operations."

However, that does not seem to imply that the process of mixing by itself brings the waste within control, if it is not otherwise in the listed categories.

The Agency's interpretation would have the curious result that the mixture of harmless wastes with which Dockgrange are concerned would be put in the red category, whereas one of the more harmful components which is taken out at an earlier stage, that is "fluff - light fraction from metal shredding", is in the amber category. The inclusion of this item in the OECD list suggests that attention was given to this type of activity, and the potentially harmful element identified, but it appears to have been assumed that the main products of the metal shredding did not need a separate categorisation. This again appears consistent with the view that they would have been seen as falling within the green list, even when mixed.

In this case I am not concerned with amber or red waste. I can well see that there may be reasons why a mixture of amber waste may give rise to problems, which the individual wastes do not, and which would justify it being treated as Annex IV waste. However, it is unlikely that anything I say will apply to that, since the requirements of Article 6 are much more rigorous than those of Article 11. Furthermore, if there are problems, there are mechanisms within Article 1.3 and the "chapeau" to deal with them. I am concerned with a case where the individual wastes in the mixture can be adequately identified as harmless, and where there can be substantial compliance with the obligation to state their quantities.

At the end of the day, it would be a matter for a criminal court, before which a prosecution was instituted, to determine whether Article 11 was sufficiently complied with in a particular case. However, it is appropriate for the Agency, as principal prosecuting authority, to have a policy on the matter; a court is likely to be guided by its expert view. There is in my view more flexibility within the system than the Agency's current policy allows. In particular the degree of accuracy required in specifying quantities of individual components, at least in green list cases, is a matter on which the Agency can allow some latitude, consistently with the objects of the Regulation. I am happy to reach that conclusion, since nothing is more likely to bring disrepute on the systems of control under the European Treaty than over-rigid application of the criteria resulting in needless hardship.

Conclusion

In principle, the applicants are entitled to the relief they seek. This is no criticism of the Environment Agency, which is having to operate within a system which is difficult to interpret and is not of its own making. I will hear submissions on the precise form of relief which is appropriate in the light of this judgment. The application seeks to prohibit the taking of enforcement action pursuant to the policy expressed in the Agency's letter of August 1996. For the reasons I have given, I think that policy needs to be reconsidered and therefore it is appropriate for the Agency to be restrained from implementing enforcement action based on it (although a suitable undertaking would be acceptable). Subject to the submissions of the parties, a declaration in the following form may also be appropriate:-

"It is declared that, on the proper interpretation of EC Regulation 259/93 Article 10 (and without prejudice to the need for substantial compliance with Article 11), a mixture of wastes all of which are individually assigned to the green list is not, by reason of the fact of mixture alone, to be treated as unassigned waste subject to red list procedures."

MR JUSTICE CARNWATH: I am not going to read out the judgment, as the parties have now had it and had a chance to read it. Mr Fordham, in effect, you have won. What do you want? I know Mr Findlay is in some difficulties today, but is it appropriate to deal with consequential matters today?

MR FORDHAM: I believe we are in a position to do so. My friend Mr Easton appears today. The first matter is the matter of relief. Your Lordship has formulated a declaration. We are happy with the wording of this. I anticipate my learned friend is as well. Your Lordship, immediately prior to that, deals with the question of the agency being restrained from implementing enforcement action subject to a suitable undertaking. I think on both sides we would wish your Lordship to make an order, rather than to seek to formulate an undertaking, and I would invite your Lordship to say this: that the respondent be restrained from taking any enforcement step on any basis inconsistent with the declaration of the Court. I do not know whether, my Lord, you wish to hear my friend on relief.

As for costs, I would invite your Lordship to say that the agency should pay Dockgrange's costs, including the application for leave. I also have an application for a certificate for two counsel on the basis of the complex and important nature of the issues in this case and I would invite your Lordship to make no other order as to costs.

MR JUSTICE CARNWATH: Nothing in the case of Mayer Parry?

MR FORDHAM: My Lord, no. That was the basis on which leave was given in that case, and nothing in relation to the third party. Can I just remind your Lordship that Mr Macory and myself do act for the third party, Robinson Group limited. I do not know whether your Lordship wishes to insert that on the front page of the judgment.

MR JUSTICE CARNWATH: Not really, because I know nothing about the other party.

MR FORDHAM: It is accepted between the parties that they were served so they are covered. They are formally a party in the proceedings before your Lordship, having been served.

MR JUSTICE CARNWATH: If the parties are happy with that, but I do not say I am going to say anything about that.

MR FORDHAM: They are, as Mr Findlay indicated in argument. Those are the only matters I wish to address your Lordship on.

MR EASTON: I cannot resist any application for costs.

MR JUSTICE CARNWATH: Two counsel?

MR EASTON: I cannot really resist that either. In terms of relief we prefer as Mr Fordham indicated. We are happy with the terms of the prohibition, save your Lordship may be minded to insert the word enforcement "action" as opposed to "step".

MR JUSTICE CARNWATH: Does that add some subtle----

MR EASTON: Step may involve writing letters to certain parties, action that would involve some legal proceedings, I believe. There is not a lot in it, my Lord.

MR FORDHAM: Can I say on that point our concern is this: there are various aspects including licensing aspects and including any pro-active position that the agency may take in instructing any of the parties not to carry on with the import of a particular waste and that is why we wish to have the rather broader phrase of enforcement step, rather than action, which is going to be the formal action of criminal proceedings after the event.

MR JUSTICE CARNWATH: It would be an odd thing, in any event, if they were to take any action inconsistent with the declaration of the Court because----

MR FORDHAM: It would. I simply----

MR JUSTICE CARNWATH: I find it difficult to conceive a circumstance where they would try to take a step inconsistent with a declaration, but would take action.

MR FORDHAM: A step in relation to a waste licence might not be to said enforcement action. It is not criminal prosecution per se, but we say that would clear up any possible doubt or confusion and, therefore, invite your Lordship to use a broader phrase.

MR JUSTICE CARNWATH: You think "step" is broader than "action"? I am going to say "action" because I think "step" is a little wide and there might be arguments, so I am going to say they be restrained from taking any enforcement action on any basis inconsistent with the declaration of the Court. The costs of Dockgrange to be paid by the Environment Agency and certificate to two counsel, including the costs for the application for leave.

MR EASTON: My Lord, I do have an application to make. I have an application for leave to appeal on the grounds that it is agreed between the parties it is a point of law, rather than fact. It is agreed also it is a question of interpretation and, in my submission, my Lord, it is a point of law which is of extreme importance and raises legal and practical ramifications and, in my submission, my Lord, my Lord's judgment raises a number of issues which, in our submission, should be taken further.

MR JUSTICE CARNWATH: There is certainly a point of law of general importance, I see that, not only in this country, and subject to anything that is said, I would imagine it is appropriate for leave, but it does not necessarily mean that your clients will want to pursue it. They will want to consider that. My understanding is that they were taking their position because of their view of the law, not because they had any particular axe to grind against Dockgrange.

MR EASTON: My instructions are that their view of the law remains the same and they would wish to take it further.

MR FORDHAM: Can I make one observation? Your Lordship has given a thorough and clear judgment. It is a case of a crisp point of law. It is open for the Agency to go to the Court of Appeal for leave to appeal and it may be that this is one of those cases where if the Court of Appeal agree with your Lordship's analysis they might well think it appropriate to refuse leave to appeal on the basis that your Lordship had got it spot on. In those circumstances, my Lord, I would invite your Lordship to indicate that my friend should go to the Court of Appeal.

MR JUSTICE CARNWATH: As far as your clients are concerned, for the time being they can----

MR FORDHAM: That is our primary concern, as we made clear.

MR JUSTICE CARNWATH: There is a point of some general importance. I think I will grant leave, but it is a matter for the Agency as to what extent they feel it is necessary in this country to have it further clarified.

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