England and Wales High Court (Administrative Court) Decisions

MARTIN JOHN DAVIES and HILLIER NURSERIES LIMITED [2001] EWHC Admin 587 (29th January, 2001)

Case No. CO/3149/2000

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Royal Courts of Justice

Strand, London WC2A 2LL

Monday 29^th January 2001

BETWEEN:

Claimant

Respondent

MR JUSTICE NEWMAN:

1. This appeal by way of case stated raises a point of interpretation and construction in connection with the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 (S.I. 1997 No. 648), ("the Regulations"), which came into force on 6 March 1997, being made pursuant to powers conferred under Sections 93-95 of the Environment Act l995 and to implement the European Parliament and Council Directive 94/62/EC on Packaging and Packaging Waste dated 20 December 1994 ("the Directive").

Article 234 E C Treaty (formerly Article 177)

2. It was common ground between the parties, given that the case involved a question of interpretation of a Council Directive, that Article 234 E C Treaty applied. The approach required of the court under that Article differs according to whether there is or is not a judicial remedy under national law by way of appeal from the court's decision. If no remedy is available the court is required to make a reference to the Court of Justice unless "the correct application of Community law [is] so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved". (Srl CILFIT v Ministry of Health [1982] ECR 3415, 3430 para l6). If a remedy is available it is a matter of discretion for the court.

3. In the event that it is decided not to grant the unsuccessful party a certificate that a point of law of general public importance arises, there would be no appeal to the House of Lords and there would be "no judicial remedy" under national law. The parties reserved their position to argue that such a point of law was involved in the case. In my judgment, but without deciding the issue, I can see formidable obstacles to this court concluding that this is an appropriate case in which to certify. That being so, I have regarded it appropriate to consider whether the correct application of the Community law is so obvious as to leave no scope for any reasonable doubt. For the reasons which follow I am so satisfied, and it follows that I would not refer the question to the European Court, even if the decision of this court was one against which no judicial remedy in national law existed.

4. The respondent, Hillier Nurseries Limited, trades from premises in Romsey in Hampshire as a grower of plants and shrubs for sale to the public in plastic pots. In so trading it is expected that in a high proportion of cases the end user will remove the plant from its pot in order to replant it. The appellant laid Informations alleging that, in so trading by sale to the public, the company was a "producer" within the meaning of paragraph 3(2) of the Regulations and had failed to fulfil obligations imposed by the Regulations upon a "producer". The respondent pleaded not guilty, denying that it was a producer caught by the Regulations. The company submitted that, contrary to the contention of the appellant, the plastic flower pots in which its plants and shrubs were sold were not "packaging" as defined by the Regulations. The Stipendiary Magistrate upheld that argument and found the respondent not guilty on each Information.

5. Section 2(1) of the Regulations defines packaging as follows:

"`Packaging' means all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or consumer, including non-returnable items used for the same purposes but only where the products are -

(a) sales packaging or primary packaging, that is to say packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b) grouped packagings or secondary packaging, that is to say packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units, whether that is sold as such to the final user or consumer, or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics, or

(c) transport packaging or tertiary packaging, that is to say packaging conceived so as to facilitate handling and transport of a number of cells, units or group packagings in order to prevent physical handling and transport damage;

for the purpose of these Regulations transport packaging does not include road, rail, ship and air containers."

The words of the definition follow precisely the words of Article 3(1) of the Directive save that the latter states:

"Non-returnable items used for the same purposes shall also be considered to constitute packaging"

and not:

"including non returnable items used for the same purposes".

Further, instead of the words,

"but only where the products are ..." the Directive provides:

"`Packaging' consists only of ....."

The differences are immaterial.

6. The purpose of the Regulations and the Directive is plain. They are imposed for the purpose of preventing the impact of packaging waste on the environment by placing on producers obligations to recover and recycle packaging waste. By such measures the United Kingdom seeks to attain the targets set in Article 6.l of Directive 94/62/EC and through harmonisation, to avoid distortion of trade within the community. Further, insight into the purposes can be gained from Annex 2 to the Directive. Under the heading "Essential requirements on the composition and the reusable and recoverable, including recyclable, nature of packaging", the following appears:

"(1) Requirements specific to the manufacturing and composition of packaging

- Packaging shall be so manufactured that the packaging volume and weight be limited to the minimum adequate amount to maintain the necessary level of safety, hygiene and acceptance for the product and for the consumer

- Packaging shall be designed, produced and commercialised in such a way as to permit its reuse or recovery, including recycling, and to minimise its impact on the environment when packaging waste or residues from packaging waste management operations are disposed of."

7. The following material facts appear from the case stated. The respondent called a specialist in packaging and the environment. The magistrate accepted her evidence, which was to the effect that there was some uncertainty and a lack of unanimity in the European Community on the question whether plastic pots constituted "packaging". Some nine Member States had concluded that pots were packaging, whereas France had not. The position so far as the other Member States was concerned was unclear. This court was informed that it had not been suggested that any national court within the European Union had reached a conclusion. The respondent's merchandising manager, Mr Timothy Mason, gave evidence. He explained how a cutting would be placed in a plug tray to root. It would then be moved to a liner and finally put into a plastic pot, where it was likely to remain in the nursery for two to three months, during which time it would normally be moved from under glass to harden. It would be fed, watered, and sometimes pruned. It would in due course be moved to a garden centre for sale to the public. Evidence was given that a considerable range and variety of pots are available, being designed to cater for the different requirements of the different types of plants being grown for sale. Thus each plant is placed in a pot according to whether the size of the pot and the position and size of draining holes and so forth are suitable to the needs of the plant. Mr Gilchrist, an experienced and highly qualified horticulturist, gave evidence, confirming the need for different types and sizes of pots in order to enable different plants to grow. He expressed the opinion that "the role of the container is quite distinct in that it provides both the growing environment and is central to the production process's handling mechanism".

8. In my judgment the factual circumstances disclosed by the evidence, which are material to the question whether plastic pots are packaging, can be summarised as follows:

(1) that the respondent grows plants and shrubs from cuttings for the purpose of selling them to the public (including trade customers). The respondent does not sell the cuttings, but nurtures them to a size at which they are capable of being sold to the public for replanting;

(2) having rooted, they are placed in the liner and subsequently transferred to a plastic pot to continue to grow until they are of a sufficient size to be sold for planting out;

(3) the purpose of putting them in the pot is to nurture them to a size at which they can be sold to the public in the pot and in good condition;

(4) it is expected that in a high proportion of cases the end user will remove the plant from the pot;

(5) the pots will be chosen for the plants, according to the needs of the plant, it being obvious that the respondent is not in the business of selling dead or unhealthy plants;

(6) that the plants are being sold because they are ready to be replanted and thus at the point of sale, or offer for sale, the pot serves the purpose of (i) keeping the plant in good condition throughout the sales process until replanted, and (ii) containing the plant for the ease and convenience of the purchaser in handling and transporting it.

9. The magistrate concluded that the primary purpose of the plastic pot is for the growing of the plant. It will be apparent from the content of the evidence I have set out above that there was evidence entitling him to reach that conclusion. At the time the young plant, having rooted, is placed in a pot, where it will remain for some two to three months, it is obviously placed in the pot to grow. Equally obviously, having regard to the nature of the respondent's business, the purpose in growing it is to sell it to the public in the pot, when it is considered to be ready for sale. Insofar as it cannot be sold until it has grown to a sufficient size, the immediate purpose in potting it is to grow it. The task for the Magistrate was to interpret the legislation so as to identify the factual circumstances which fell within its reach. Having done so, it was for him to decide whether the facts in connection with the respondent's business fell within the ambit of the legislation. The circumstance defined by the legislation which was for his consideration, was whether the respondent's "packaging" was used as "packaging conceived so as to constitute a sales unit ..." He was bound to have regard to all the evidence material to the respondent's use and if he failed to pay regard to evidence pointing to the pots being "packaging conceived so as to constitute a sales unit", he fell into error.

10. Mr Stephen Hockman, QC, for the appellant, submitted that the general definition of packaging was most important. It was not open to argument that the pots in question were "packaging" within the meaning of the broad definition, in that they were materials used for the "containment, protection, handling, delivery and presentation of goods". The purpose in using the pots being clear and beyond argument, he submitted, the critical issue was whether their use was within the limited circumstances to which the Regulations applied, as set out in sub-paragraphs (a) (b) and (c) of the definition. It is common ground that only (a) is material to this case and therefore the issue was whether the "packaging" used was: (a) sales packaging or primary packaging, that is to say packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase". He submitted that once it was established that the material was "packaging", it only remained to decide whether it was being used at a time when the goods were on sale. If so, the packaging constituted "a sales unit". Alternatively, he submitted, if that submission was wrong because it gave little or no meaning to the word "conceived", then the relevant point of conception was when it was on sale and not when it was put into the pot. In a further and alternative submission, which emerged from the course of argument, he submitted that if "conceived" required the question to be determined at the time when the plant was put in the pot, then in basing his conclusion on the "primary purpose", the Magistrate failed to pay regard to the fact that it was also planted in the pot for the purpose of selling the plant in the pot when it was of sufficient growth and health to do so, and was for that reason "conceived so as to constitute a sales unit".

11. Mr Spink, counsel for the respondent, accepted that if matters had rested with the broad definition of packaging, then he would have no argument. But he submitted that if the narrowing of the definition constituted by the words "sales packaging or primary packaging, that is packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase" simply meant that it was packaging used as a sales unit, then the Regulations and the Directive could have said so. He therefore submitted that meaning had to be given to the phrase "conceived so as to constitute a sales unit". He submitted that the ordinary meaning of the word "conceived" imports into the definition of packaging a requirement to look back at the purpose for which the item in question was formulated, devised or designed by the producer. He submitted that the consumer played no role in the "conception process". He submitted that the consequence of this interpretation was that it would serve to draw a distinction between, items which were designed or devised with something other than sale in mind, even if, incidentally, they could be used as a container at the point of supply or sale. Some support, he submitted, could be found for the word "conceived" encompassing a concept of design from the terms of Article 3(5), which states:

"Re-use shall mean any operation by which packaging which has been conceived and designed to accomplish within its life cycle a minimum number of trips or rotations, is refilled or used for the same purpose for which it was conceived, ...."

Again, for the same purpose, he referred to Annex 2, and the words:

"packaging shall be designed, produced and commercialised in such a way as to permit its use for recovery ...."

Conclusion

12. In my judgment the word "conceived" requires the court to consider all the circumstances present at the time the plant was put in the pot, and to determine, according to the circumstances, whether its use at that time, included use of the pot in the process of sale, so as to form part of the sales unit of the plant. On the evidence such a use was plainly contemplated and intended at the time the plants were put in the pot. Mr Hockman's first submission is wrong because use at the time of sale is not determinative, although it could be a relevant circumstance. In my judgment his second submission also fails, for it involves adopting the approach taken by the Magistrate which, in my judgment, was flawed. It is obvious that when the plant is offered for sale it is still in the pot for growing and nurturing purposes, which purposes cannot be regarded as incidental to it as "a sales unit". It can only be said that its primary purpose for being in the pot has changed from the purpose of nurturing to the purpose of sale. His third submission succeeds.

13. In my judgment by placing plants and shrubs in pots for sale, the pots, being "packaging" are conceived so as to constitute a sales unit and, at the time of sale, constitute a sales unit. They therefore constitute packaging within the Regulations. It follows that the respondent acted as a "producer" and should have been found guilty on each of the Informations.

14. The Questions

There are two questions for the Opinion of the High Court.

(1) What is the meaning of the word "conceived" as used in the phrase "... packaging conceived so as to constitute a sales unit" (Producer Responsibility Obligations (Packaging Waste) Regulations 1997, Regulation 2(1)(a)?

(2) Was the Magistrate entitled to find as a matter of fact that the plastic plant pot was conceived as a means by which a plant may be produced and not conceived so as to constitute a sales unit?

I would answer them as follows:

(1) That the words of the definition bring within the ambit of the Regulations the use of "packaging" in connection with "goods", the contemplated use of which is as a sales unit then or at some later time.

(2) The Magistrate was entitled to find as a matter of fact that the pot was conceived as a means by which a plant may be produced but he was wrong to conclude, in having identified the primary purpose, that they were not also conceived so as to constitute a sales unit.

15. It follows that, in my judgment, the appeal should be allowed and that the case should be remitted to the Magistrate with a direction to convict on each of the Informations.

LORD CHIEF JUSTICE:

I agree.