England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2012

Mr Justice King:

1. The appellant company appeals by way of case stated against the decision of the justices sitting at Haringey Magistrates' Court on the 18^th of August 2010 to convict It, as a producer of waste, of two offences under section 34(1) (c) and section 34(6) of the Environmental Protection Act 1990 ('the 1990 Act'). The appellant has appeared before us by Mr Sonn, Solicitor Advocate, as it did before the magistrates. The respondent borough council has made no appearance before us citing as its explanation the current financial climate.
2. The case concerns the criminal liability under the 'duty of care' provisions of section 34 of the 1990 Act, of a commercial freeholder of property who verbally contracted out renovations works on the property, including the removal and disposal of any waste, to an independent contractor who on two successive days in December 2009 disposed of waste to a 'fly tipper' in contravention of section 33 of the 1990 Act.
3. Section 34 of the Act as far as is material provides as follows:

'34-Duty of care etc. as regards waste.

(1) Subject to subsection (2) below, it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances –

(a) to prevent any contravention of section 33 above;

(aa) ………….

(b) to prevent the escape of waste from his control or that of any other person; and

(c) on the transfer of the waste, to secure –

(i) that the transfer is only to an authorised person or to a person for authorised transport purposes ; and

(ii) that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section or regulation 12 of the Regulations, or a contravention of a condition of an environmental permit and to comply with the duty under this subsection as respects the escape of waste.

……………………..

(6) Any person who fails to comply with the duty imposed by subsection (1)………….shall be liable –

(a) on summary conviction, to a fine not exceeding the statutory maximum ; and

(b) on conviction, to a fine'.

4. Section 34 also provides for a code of practice to be issued by the Secretary of State 'for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by subsection (1)' ( see subsection (7)), and further provides that such a code shall be admissible in evidence and 'if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question' ( see subsection (10) ). A copy of the material Code issued under this section has been produced to this court.
5. The particular feature of the charges laid in this case is that the appellant was not charged, as it might have been, with failing to comply with its duty of care under section 34(1)(a) to prevent any contravention by any other person of section 33,but with failing to comply with its duty of care under section 34(1)(c) on the transfer of the waste, to secure (i) transfer to an authorised person and (ii) the transfer of a statute compliant written description.
6. The information preferred by the respondent against the appellant alleged that:

(a) On Tuesday 1^st December 2009, the appellant company failed to take all such measures applicable to the company as are reasonable in the circumstances, on the transfer of the waste from the property at 207 Lordship Lane, London N17, to secure.

(i) That the transfer is only to an authorised person or to a person for authorised transport circumstances; and

(ii) that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of section 33 of the Environmental Protection Act 1990, or regulation 12 of the Environmental Permitting (England and Wales) Regulations 2007, or a contravention of a condition of an environmental permit, and to comply with the duty under this subsection as respects the escape of waste, to secure controlled waste, namely items removed from the property at 207 Lordship Lane, London N17, contrary to Section 34(1) of the Environmental Protection Act 1990.

(b) On Wednesday 2^nd December 2009, the appellant company failed to take all such measures applicable to the company as are reasonable in the circumstances, on the transfer of the waste from the property at 207 Lordship Lane, London N17, to secure

(i) That the transfer is only to an authorised person or to a person for authorised transport circumstances; and

(ii) that there is transferred such written description of the waste as will enable other persons to avoid a contravention of section 33 of the Environmental Protection Act 1990 or regulation 12 of the 2007 Regulations, or a contravention of a condition of an environmental permit, and to comply with the duty under this subsection as respects the escape of waste controlled waste, contrary to Section 34(1) of the Environmental Protection Act 1990.

7. The facts of this case were straight forward. The background facts were agreed and are set out at paragraph 2 of the Case, as follows:

'1. 207 Lordship Lane N17 6AA (the property) had been owned by the defendant company Mountpace Limited since 26^th August 2009.

2. Mr Schneck is a director of the company.

3. On Tuesday 1^st December 2009 controlled waste from 207 Lordship Lane, including carpet material and other household items had been deposited illegally on the highway bordering the property.

4. On Wednesday 2^nd December 2009 controlled waste from 207 Lordship Lane, including a bath tub and other associated items had been deposited illegally in the vicinity of numbers 10 and 11 Maria Close, London N17.

5. On 17^th April 2010 Mr Dachbash, who had been contracted by the appellant company to renovate the property which included the removal and disposal of the waste created by the renovation of the premises at 207 Lordship Lane, London N17, pleaded guilty to two charges of knowingly causing Mr Ian Williams and others to deposit controlled waste on land when there was no environmental permit in force permitting the waste to be so deposited, contrary to Section 33(1)(a) Environmental Protection Act 1990'.

8. The Case summaries the evidence called before the justices.
9. The sole prosecution witness was the technical enforcement officer of the respondent council, who exhibited her interview of Hersh Schneck, a director of the appellant company. That interview disclosed that the first the appellant had heard of the fly tipping was after receipt of a telephone call from the council. In the course of the interview Mr Schneck explained the verbal arrangements his company had entered into with the contractor Mr Dachbash to renovate the property and clear any rubbish .These did not include any specific details or instructions with regard to waste management. He just let the contractor get on with the job. He had visited the site during the renovation works, had been given invoices by the contractor which included provision of skips but ' Mr Schneck had not got involved in the detail and had no suspicion that things were not run correctly'. The company did not have any protocols in place for this type of situation but just relied upon the common sense of the appointed contractor. This was the second renovation of property job carried out for the company by this particular contractor and there had been no problems with waste removal in the past. Under cross examination, the officer accepted that the contractor may not have told the company about the particular transfers and accepted that the company 'may not have foreseen that Mr Dachbash would dispose of waste to a fly tipper'.
10. At the close of the prosecution case a submission was made of no case to answer which was rejected by the justices.
11. In its defence, the appellant called evidence from Mr Schneck. The effect of his evidence was that the appellant was a relatively small company with two directors and only one employee, the company secretary. It had operated for 12 years renovating 7-8 properties. The particular property in the charges had been purchased in the summer of 2009 as a 'tired' property with the intention of renovating and selling. Mr Schneck reiterated that which he had said in interview but added more detail in support of the appellant's case that it had reasonably relied upon the particular contractor to comply with any statutory requirements with regard to waste disposal without the need to spell anything out, whether by contractual term or otherwise, and that it had had no reason to foresee that the contractor would use a fly tipper. He referred in particular to the regular visits to the site by his fellow director Mr Lewin to whom the particular contractor had been recommended by an acquaintance for whom he had carried out a loft conversion .He referred again to the previous job carried out by Mr Dachbash on a property of the company in Hackney which had been a larger job and which had generated substantial waste all of which had been disposed of without any problem .He had seen the invoices for the skip removal by authorised waste carriers . A section 9 witness statement from the director of a registered waste carrier skip company was read into the evidence confirming the hire of skips to Mr Dachbash in the four months leading up to December 2009 in respect of the property in the charges .
12. The justices set out in the Case how they reached their decision to convict, in these terms: '6. We were of the opinion that:

(i) The appellant company is a producer of waste because its activities as a company renovating properties gives rise to waste. The appellant continues to be a producer of waste though it employed a contractor to carry out the physical work, and it was as a result of this that the waste was produced.

(ii) the appellant company hired a contractor on a word of mouth recommendation. That contractor was already working on another job and had made use of waste disposal companies. Both directors of the appellant company, Mr Schneck and Mr Lewin, had attended the site and Mr Schneck had seen A1 skips there. There was no evidence that the appellant company had a clear audit trail, or internal procedures, to deal with contractors which took waste management into account. There were no checks and balances operated by the appellant company to ensure that its contractors complied with waste management legislation.

(iii) The appellant company does have a duty of care to ensure that waste is disposed of safely and did not discharge its duty of care adequately'.

The questions for the opinion of the court: the proper interpretation of section 34(1) (c);

13. The submission of no case to answer at the close of the prosecution case, and the further submission at the close of all the evidence, that the charges were not proved, relied in part upon the proposition that the wording of the material subsection ((1)(c)) which speaks of a duty 'on transfer of waste, to secure….' and which was reflected in the wording of the particular charges alleging a failure to take reasonable measures on the specific day of the transfer, meant that in deciding whether the appellant had failed to comply with its statutory duty 'on the transfer' of the material waste, the justices were not entitled to have regard to the conduct of the appellant prior to the point of transfer on the particular day. Otherwise it was said, the justices, if they found the case proved, would in effect be convicting the appellant of an offence with which it was not charged, namely the failure to take preventative measures under subsection (1)(a) .
14. It was submitted that the justices could look only to what could have been reasonably expected of the appellant at the point of the transfer, in order to secure that which is set out in the subsection .On this basis the submission was made that the charges could not have been made out since at that time the appellant was not on site, as it operated from premises some distance away and had no actual or constructive knowledge that the transfers were about to be made .There was in these circumstances nothing which could be reasonably have been expected of it on the day to secure the statutory objectives .
15. Even if that were wrong, it was submitted that the charges could not be found proved since the appellant had in the circumstances reasonably relied upon the appointed contractor to fulfil the statutory requirements with regard to the transfer of controlled waste, without the need to do more. It had no reason to foresee that this particular contractor would use a fly-tipper. It was said that in any event it must have been an implied term of the contract that the contractor would dispose of any waste lawfully and nothing which the appellant might have done by way of spelling out matters more precisely in the contract or in some other document by way of instruction, could or would have prevented this particular fly-tipping.
16. These submissions were repeated by Mr Sonn before us .
17. They have given rise to the following questions being stated in the Case:

'7. The Questions for the opinion of the High Court are:

(a) Did we correctly construe s34 (1) (c) of the EPA 1990, given the guidance of the Code of Practice, at A 11-14 (p42) and in particular that, "A [waste] holder is only expected to take measures that are:

(a) reasonable in the circumstances, and

(b) applicable to him in his capacity", by taking into account the appellant company's conduct prior to the two dates on which the relevant controlled waste was transferred from their contractor at 207 Lordship Lane, London N17 to an unauthorised person, rather than looking at the circumstances and their capacity "on transfer" dates alone?

(b) When a prima facie case has been established, does the burden of proof rest with the appellant company to show that all relevant measures had been taken, such that there is a reverse burden of proof under s34 which falls to the appellant company to discharge by way of evidence?

(c) Could we be satisfied to the criminal standard of proof, on the evidence presented to us, that the appellant company had failed to discharge its duty of care on the transfer of the controlled waste at 207 Lordship Lane on 1^st and 2^nd December 2009, thereby committing an offence under section 34(1) (c) of the Environmental Protection Act 1990'.

Conclusions

18. My conclusions on this appeal are as follows.
19. I would agree that on the proper construction of section 34 (1) (c), the duty of care imposed under that subsection on any person who produces waste ( or anyone else who falls within one of the other different types of waste holder listed in section 34(1)) is a duty to secure the results sets set out in 34(1) (c ) which is to be complied with on the occasion of a given transfer of waste; and the question as to what were the reasonable measures applicable to him "in that capacity" to secure those results, has to be answered and assessed by reference to his capacity on that occasion in the circumstances prevailing on that occasion .
20. As the Code of Practice explains at paragraph A.13:

"the capacity of the holder is who he is, how \much control he has over what happens to the waste and in particular what his connection with the waste is . Different measures will be reasonable depending on whether his connection with the waste is an importer, producer, carrier, keeper, treater, disposer, dealer or broker".

21. Equally as the Code says at A.12 the circumstances which affect what is reasonable include what the holder might reasonably be expected to know or foresee.
22. However this does not mean that a waste holder cannot comply with that duty on the occasion of the transfer by reference to the measures he has already taken on days prior to that occasion in anticipation of that occasion. For example as far as the duty of care to secure that the transfer is only to an authorised person, one of the additional measures recommended by the Code of Practice at paragraph 3.8, is to check with the Environment Agency that the carrier's registration is still valid even if his certificate appears to be correct, before using any carrier for the first time. There may be other examples where the person in control of the waste cannot be present on the day of the transfer in which event he may be compelled to take measures prior to the day to ensure an authorised transfer – for example by arranging in advance for a third party properly instructed to carry out the required measures on the day.
23. Nor does this mean in my judgment that on the facts of this case the capacity of the appellant company in connection to the waste on the particular days of the transfers alleged in the information, was such that there were no reasonable measures open to it to secure the statutory objectives and hence – as submitted by Mr Sonn – the duty was complied with by the appellant doing nothing.
24. This submission concentrated on the factual framework of the appellant company having contracted out the renovation works to an independent contractor, that although the appellant company was the freeholder of the premises where the waste was being generated, and the waste was being generated by works being carried out at its request under the contract ,the appellant 'operated' from a distant address and had no reason to know these particular transfers were being effected on the days they were, and hence on those particular days the waste was " plainly not under the Appellant's control" ( skeleton argument paragraph 14 ) or " not as a matter of practicality under the Appellant's control" (submission in oral argument ).Mr Sonn 's written submissions were that as a matter of common sense, regardless of what the appellant could have put in a lengthy written contract of appointment, "unless the appellant had employed / engaged someone to be present at the Property 24 hours a day for the duration of the renovation, it could not have prevented ( the contractor ) from disposing of waste unlawfully'. Only if by chance the appellant, through, for example one of its directors passing by, had been present on the site at the time of the transfers would – so the argument ran-the position have been different .
25. The argument amounts in effect to a submission that on the days in question the only waste holder who had any control or practical control over the waste was the contractor.
26. The fallacy in this submission is that it ignores the facts that the appellant company was at all material times the producer of the waste – as found by the justices and conceded by Mr Sonn – and it was waste which was foreseeably being transferred from its own premises . Further it fails to distinguish between the question of compliance with the duty under section 34(1)(c) and questions of causation . The obligation under subsection (6 ) which creates the offence, is to comply with the duty under subsection (1), and it can be no defence in the event of proof of non-compliance, that in the particular circumstances, even if the duty had been fulfilled, there would still have been a transfer to an unauthorised person .
27. The appellant was a 'producer' because it was its activities of renovating property which was producing the waste, albeit being carried out on these particular premises on its behalf by its contractor. As the Code of Practice observes ( paragraph B.2 ), although there is no definition of 'producer' in section 34, in relation to the definition of 'waste', regulation 1(3) of the Waste Management Licensing Regulations 1994 provides that " producer" means among other things ' anyone whose activities produce [directive ] waste ..'. The justices were correctly of the opinion at paragraph 6 (i) of the Case that 'the appellant continues to be a producer of waste even though it employed a contractor to carry out the physical work, and it was a result of this that the waste was produced'.
28. While the waste was on its own premises being generated by its own activities, the appellant in my judgment was in as much control of the waste for the purposes of determining its capacity in relation the waste, for the further purpose of determining what measures it could reasonably be expected to take to comply with the duty of care under section 34(1)(c), as was the contractor . Both in law and fact it had control of the waste.
29. As far as the issue of reasonableness is concerned, the appellant must have foreseen – as again conceded by Mr Sonn – that during the currency of the works that had been contracted out, controlled waste would be both produced and need to be taken off site by a transfer to a third party . What is important concerning foresight was not that the contractor might use a fly–tipper but that there would be transfers of controlled waste from the premises during the currency of the works. Yet the appellant had chosen to distance itself from the site and not to preserve a permanent presence on the site and not to play any direct role in the transfer of the waste or to require any advance notice of any transfer from the site .
30. In these circumstances if the appellant was to comply with its statutory duty of care on the occasion of any such transfer, it was inevitable in my judgment that the appellant was going to have to put in place measures in anticipation of any such transfers, to take effect on the day of the transfer, designed to secure the achievement of the statutory objectives on the occasion of any transfer . Whether such measures as it may have put in place were reasonable in the circumstances to secure the statutory objectives ,whether by way of proper instruction to the contractor, requirement of appropriate receipts, audit trails, internal procedures or otherwise, was a question of fact for the justices to determine but I have no doubt the justices were entitled to and indeed in the circumstances bound to have regard to the actions taken or not taken by the appellant company prior to the occasions of the transfers. .
31. I do not accept that in approaching the question of the discharge of the duty of care under section 34(1)(c) in this way, the justices were wrongly eliding that duty with the duty of care under section 34(1)(a) to take preventative measures to prevent contravention by any other person of the prohibitions on unauthorised deposit etc. of waste under section 33. The actions of the company being focussed upon were those, if any, taken in anticipation of a transfer of waste from the premises, to fulfil its duty of care on the occasion of such transfer, to secure that (i) the transfer was to an authorised person etc,(ii)the defined written description was also transferred . Unlike the duty of care under section 34(1)(a) which arises and in theory could be breached before any section 33 contravention has occurred, the duty under section 34(1)(c) arises only if and when a transfer occasion comes about, but equally in theory may be broken even though there has been no contravention by anyone under section 33 ( as for example in the case of a transfer to an unauthorised person who however deposits the waste without contravention of section 33).
32. On the evidence before the justices the appellant had in fact put in place no measures at all designed to comply with its duty of care under section 34(1)(c) upon the occasion of any transfer of waste, to secure the statutory objectives . It had done nothing. It had chosen instead to rely upon what Mr Schneck in interview had described as the commonsense of the contractor it had appointed under a purely verbal contract, and to whom no instructions as regards transfer of waste to an authorised person or transfer of a written description of waste had been given, but whom it said it thought it could trust to comply with the statutory requirements on waste disposal having regard to the lack of any problems with the disposal of waste in relation to an earlier contract on another site . This was clear from both the evidence called by the prosecution which, as indicated, included the fruits of the interview with Mr Schneck, a director of the appellant company, and the evidence called by the appellant its defence from Mr Schneck. The appellant had relied simply upon an assumption that any such measures as contemplated by section 34(1) (c) were unnecessary because the contractor had already carried out a larger job of renovation on its behalf without violation of the statutory scheme and because it had seen evidence of skips being hired out to the contractor by a registered waste carrier both in relation to the previous site and the current one.
33. In these circumstances in my judgment it was inevitable that the justices rejected the submission of no case to answer at the close of the prosecution case.
34. It equally means in my judgment that the justices' conclusion at the close of all the evidence that they were satisfied to the criminal standard of proof, that the company had failed to discharge the duty of care which lay upon it under section 34 (1) (c) on the transfer of the waste, on each of the two material dates, is unimpeachable. This was patently a conclusion open to them on the evidence. Their reasoning for reaching this conclusion is in paragraph 6 of the Case set out above. They patently had regard to the matters relied upon by the appellant as regards its past experience of the contractor but they were fully entitled in my judgment to form the view that the assumption relied upon by the appellant as to the reliability of the contractor in relation to the lawful disposal of waste, was insufficient to discharge that duty.

The answer to the questions

35. I would accordingly answer the questions posed in the Case as follows.
36. I would answer question 7(a) 'yes' but with the qualification that the taking into account of the appellant's conduct prior to the two dates on which the relevant controlled waste was transferred from their contractor to an unauthorised person, is not to be regarded as different from ,or as being in juxtaposition to, looking at the circumstances and the appellant's capacity on the transfer dates, but rather is to be regarded as a proper part of considering those circumstances and that capacity, and whether the appellant had complied with its duty on those transfer dates.
37. I do not consider the question posed under 7 (b) arises in this case. Clearly, however, if a prima facie case has been established, this must mean that at the close of the prosecution case the justices have concluded that on the evidence before them it would be open to them to draw the inference and to be satisfied to the criminal standard that all reasonable measures, within the meaning of section 34(1) (c), had not been taken by the appellant on the material transfer, to secure the statutory objectives. In those circumstances inevitably an evidential burden will fall upon the appellant to call some evidence tending to show that all reasonable measures had in fact been taken, in the sense that absent such evidence the likelihood will be that the justices will decide to draw the necessary inferences and convict. However they would not be bound to do so even if no such evidence were called. They would still have to make up their minds having heard further submissions, whether in fact to draw the required inferences. There can in my judgment be no question of any reverse burden of proof in the true sense of the term, ever falling upon a defendant under section 34.
38. I would answer question 7 (c),'yes'
39. For all these reasons I would dismiss this appeal.

Lord Justice Stanley Burnton:

40. I agree. I would add two matters that in my judgment militate against accepting Mr Sonn's submissions.
41. First, if his submission were correct, the list of capacities in section 34(1) would be inappropriate to the offence created by paragraph (c). Secondly, the duty would not be one "to take all measures applicable to him in that capacity as are reasonable in the circumstances". In other words, the paragraph would read "Any person who transfers waste shall secure that the transfer is ….."