Act: Dunlop; Brodies LLP

Respondent: Prentice AD; Crown Agent

1 October 2008

[1] The appellants were charged on two complaints as the operator of Greengairs Landfill site near Airdrie with a contravention of section 33(6) of the Environmental Protection (Scotland) Act 1999 ("the Act") in that they are said to have failed on various occasions to comply with a condition of a waste management licence issued by Monklands District Council and amended by the Scottish Environmental Protection Agency. When the complaints originally called in Airdrie Sheriff Court, there were two accused companies cited in each complaint, namely WRG (Northern) Limited, whose address was given as Greengairs Landfill Site, Airdrie, who were described as the holder of the relevant waste management licence, and the appellants, apparently a related company, who were charged as the operators of the licence. The first complaint sets out thirty three breaches of the relevant licence conditions said to have taken place between 29 September 2004 and 13 December 2004, and the second complaint describes a single breach said to have occurred between 3 January 2006 and 6 January 2006.

[2] All the charges are in virtually identical terms and are to the effect that those charged, being respectively the holder and operator of waste management licence WML/W/00001, and being subject to condition 6:18 of said licence, which was that all site operations shall be conducted in such a manner to ensure that they did not give rise to offensive odours as perceived by any authorised person at any point bearing along the site boundary, did fail to comply with the condition in that on the various dates (or the date) mentioned in the complaints operations at the site gave rise to an offensive odour beyond the site at various locations nearby.

[3] The two complaints called before the sheriff at Airdrie on 12 September 2006 for a debate on the relevancy and competency of the charges brought against the appellants and the co-accused. At the debate the solicitor who appeared for both companies argued firstly that the complaint was incompetent in respect that the two companies, - one as holder of the waste management licence and the other as the operator of the site, - had been charged separately on the one complaint with identical offences, an approach, it was said, not permitted by the legislation; secondly, that the condition of the licence said to have been breached was unreasonable and unenforceable and was therefore ultra vires of the Scottish Environmental Protection Agency; and thirdly, that the complaints were irrelevant in that they lacked specification. The sheriff upheld the plea to the competency in respect of the first accused and dismissed the complaint against them. He accepted a submission that the Crown could not proceed against the licence holder and the operator on identical charges of breaching a licence condition. In essence, the submission before the sheriff appears to have been that the purpose of the statute was that the complaint should have been directed at the operator of the site and not at the licence holder, as the breach related entirely to operational matters. The sheriff repelled the other two pleas, which referred to the powers of the Agency and the relevancy of the complaint, which remained against the second accused, and who are the present appellants.

[4] Then in September 2006 the appellants lodged a note of appeal in each case containing three grounds against the sheriff's decision. Firstly, it was said that the sheriff had erred in law in upholding the competency plea against the licence holder but repelling the same argument against the operator; the legislation, it was said, did not permit both parties to be proceeded against for an identical breach of licence conditions, and so the Crown must elect which party it sought to prosecute. By failing to do so, the entire complaint should have been held as incompetent. Secondly, it was again sought to argue that the particular condition in the licence was unreasonable and unenforceable and was therefore ultra vires of the Scottish Environmental Protection Agency. The third ground of appeal was concerned with the same submissions on relevancy and specification rejected by the sheriff. However, in February 2008, the appellants lodged a supplementary ground of appeal in the following terms:-

"The charge is in any event irrelevant because the appellant is not the licence holder. Licences are personal to the person to whom they are issued as are any conditions which are attached to the licence. The appellant cannot be bound by or infringe a condition of a licence which is not held by the appellant."

[5] This supplementary ground was allowed to be introduced at a Procedural Hearing on 15 April 2008. In opening his appeal, counsel for the appellants indicated that the original grounds of appeal were not to be argued or insisted upon and that the only live issue in the appeal was now the supplementary ground. It is noted that the supplementary ground of appeal had not been argued before the sheriff; indeed the premise of the supplementary ground, (as was accepted by the appellants' counsel), was exactly the opposite of the submissions on the competency of the proceedings which, in the case of the former co-accused, had succeeded before the sheriff. In effect, therefore, this was not in the event an appeal against the sheriff's decision. However, it was agreed at the hearing before us, despite some initial token resistance from the Crown, that in order to avoid further delay in the case, it would not be necessary to obtain the sheriff's view on this new argument. It could clearly be inferred from his report what view he would have taken on the matter, and accordingly the supplementary ground of appeal, - which was the same in both cases, - could be debated before this court. It was also agreed that both appeals could be heard together.

[6] For the appellant, counsel submitted that where there was a breach of a condition in a waste management licence in terms of sections 33(1) and (6) of the Environmental Protection Act 1990, the target for any prosecution should be the licence holder and not the operator. Section 33(1) (as it applies to Scotland) provides:-

".... a person shall not -

(a)   deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or any land unless authorising the deposit is in force and the deposit is in accordance with the permit...."

Sub-section (6) provides:-

"A person who contravenes sub-section (1) above or any condition of a waste management licence commits an offence."

[7] In these circumstances counsel for the appellant submitted that section 33(6) created two distinct and separate kinds of offence. Firstly, it is an offence to deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in any land without authority (in other words without a licence); and secondly it is an offence to deposit such waste or knowingly cause or permit it to be deposited in a way not in accordance with the conditions of the licence. The offence in the present case clearly fell within the second of these two categories; it is not suggested that it fell within the first category. A licence, when granted, will normally contain a number of conditions concerned with a variety of issues, including operational matters, but also including such matters as fencing and signage which are not concerned with the operation of the site. It was therefore important to distinguish between the separate kinds of licence condition that might be imposed.

[8] Counsel argued that the purpose of the second kind of offence under section 33(6) was to see that all licence conditions were observed; that sort of breach of licence offence could only be committed by the operator, as he was the person who would break the licence condition. In respect of the first kind of offence described in section 36(6) the only persons normally responsible for depositing waste without a licence would be the owner of the ground, or the person who was or would be the licence holder. The distinction between the holder of the licence and the operator of the site can be seen from some of the subsequent provisions of the Act. For instance in section 35, the licence can, in various different circumstances, be granted to the occupier of the land or to the operator. Section 35(3) which provides for the terms and conditions of a licence clearly has the operator in mind, as does section 35(4). Conditions of the licence can only be modified (other than by the waste management authority) at the instance of the licence holder (section 37(1) (b)), and appeals to the Secretary of State in respect of licence conditions can only be undertaken similarly by the licence holder (section 43). Licences can only be surrendered or transferred by the licence holder (section 39 and 40). Section 42 of the Act directs supervision requirements exclusively at the licence holder. The general flavour of these and other various provisions was, in counsel's view, that everything in connection with the management of the licence, and any allegations of breach of management conditions should be directed at the licence holder.

[9] Counsel for the appellants also submitted that the statutory scheme involves a form of licence which is personal to the holder, which imposes conditions which are known to, and can only be challenged by the holder, and which in terms of section 35 can only be held, in circumstances such as the present, by the owner of the land. The penalties available for breach of licence conditions involve imprisonment or a fine and so it was important that the capacity in which charges are preferred should be made particularly clear. The reason why there are two separate offences in section 33 (6) is because not all conditions are to do with the operation of the site. So in terms of the statute, the licence holder must comply with the licence conditions in terms of the second kind of offence found in section 33(6) while the operator and everyone else must comply with section 33(1).

[10] In terms of the first kind of offence provided in the subsection Counsel for the appellant accepted that he had to look at the case of Shanks McEwan (Midlands) Limited v Wrexham Maelor Borough Council, a Queen's Bench decision reported in the Justice of the Peace and Local Government Law Reports 1996 Vol. 160 p.969, which appeared to be exactly in point but which reached a view directly contrary to the proposition which he advanced in the present case. The decision in that case was that when a company holds a waste management licence in respect of a site which is operated by an associated company and a condition attached to the licence is contravened, the offence under section 33(6) of the Act is committed only by the company which operates the site and not by the company which holds the licence. Counsel pointed to the approach which initially found favour with the court. As reported in the judgment, Leggatt LJ (at p970) said:-

"....(counsel)....submits that the Act of 1990 was concerned with more than mere disposal of waste because it provides, in this instance in particular, for a waste management licence which means what it says. The scheme of the Act is to control the site in terms of things which may happen on it and which may affect the environment. When a licence holder takes up a licence, he becomes subject to a wide range of obligations, and the fact that he may be guilty of a failure of supervision in that context, so as to be in contravention of condition Q1, does not absolve him from compliance with all the other conditions relating to the conduct of the site. So long as the licence holder remains the licence holder he is responsible for what does or does not happen on the site.

I have to say when first I read these papers, until I listened to the argument, I was much taken with what submission. As I would have put it, the licence was granted in respect of the site to one licence holder and was subject to conditions. Condition M6 required all waste to be covered at the end of the working day with suitable cover. On the date in question some of the waste on the site was not covered at all, so there was a contravention of the licence, and that entailed a prima facia breach by the appellants of section 33(6) of the Act of 1990. They would, indeed, have been afforded a defence under subs (7) if they could have shown that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence, but they did not seek to invoke that provision."

[11] However as the argument developed, the court eventually preferred the submissions put up by the appellants (at p971):-

"As the argument developed and the focus was placed upon the circumstances in which the statute envisages that a contravention might occur, it seems to me that there was more force in the argument in favour of the appellants. The Act of 1990, in using the term "a person" instead of referring to the holder of a licence, was rendering liable anyone guilty of an act or omission that constitutes a contravention of a licence. The scheme of the Act seems to me to be to render liable the person who is in actual occupation of the site. In practice that person is the operator."

[12] Counsel for the appellant suggested that the court in Shanks McEwan should have preferred the earlier arguments put forward by the respondents. It was readily explicable that section 33(1) should refer to "a person" because the subsection created two offences; anyone can commit an offence under the first part of section 33(6) but only the licence holder could commit a breach of the licence conditions in terms of the second limb of that sub-section. Only the licence holder knew what the licence conditions were. He alone was responsible for a large range of obligations, and for what did or did not happen on the site. The fact that he was guilty only of a failure of supervision did not absolve him from compliance with all of the other licence conditions.

[13] In reply the Advocate depute argued that the charge was relevantly pled against the appellant, as being the operator of the licence and being aware of the conditions of the licence. Section 3 sets out a variety of things which a person cannot do, and the charges in the complaints set out examples of this. A "person" is anyone in terms of the legislation. The relevant test is subject to proof, and if the averments in the complaint are proved, the Crown in the present case is entitled to a conviction. It was not uncommon for two parties to be charged on a single complaint with an identical charge; an example might be a brewery and bar staff both charged with allowing underage drinking. The mischief aimed at by the Act is waste management offences committed either by the holder or the operator. Parliament could have made a distinction between the holder and operator in creating the statutory offence but did not do so.

[14] We are not persuaded that the appellants' submissions in this matter were correct. Section 33 of the Act is concerned with a prohibition on unauthorised or harmful deposit, treatment or disposal of waste. That, we think, clearly refers to the operation of the site, and we can see no reason why the operator should not therefore be bound by this condition. The section does not specify that only the operator or the licence holder must comply with the provisions of the licence; the offence is committed when "a person" is found to have breached those provisions. That person might be the licence holder, the operator, or indeed anyone else. Had the Act intended to restrict those who can commit offences under section 33(1) and (6) to the licence holder, it would have no doubt said so. We therefore see no reason to restrict the category of person who can be charged under these subsections in the way that counsel for the appellant suggested.

[15] Nor are we satisfied that the appellants' attack on the decision which ultimately found favour in McEwan Shanks Limited is well founded, for much the same reasons.

[16] Also of interest was the case of Shanks McEwan (Teeside) Limited v Environmental Agency 1999 QB 333, cited in argument, which was in a number of significant respects similar to the present case, in that the defendant company operated a waste disposal site under a licence and breached one of the conditions concerned with the method by which waste should be deposited. The point at issue in the case was that the operators of the site were charged in that they had knowingly caused controlled waste to be deposited on the land in a manner not in accordance with one of the licence conditions, contrary to section 33(6) of the Act. It was held that on a true construction of section 33(1)(a), the requirement of knowledge related only to causing or permitting controlled waste to be deposited on the land, and not to whether a waste management licence was in force for such deposits, or whether the deposit was in accordance with the licence; and that it was sufficient for the prosecution to prove that the company had knowingly operated the site for the deposit of controlled waste, and that the deposit had not been in accordance with the condition of the licence. The effect of these conclusions in that case was to make the operator of the site liable for any contraventions of the licence irrespective of the position of the licence holder. We see no reason to take a different view in the present case.

[17] We would wish to add however that we do not share the view, expressed per curiam in Shanks McEwan (Teeside) Limited, that because the two limbs of section 33(6) creates two separate offences, then separate informations are required. It is possible that the sheriff might be thought, in reaching his decision, to have endorsed the appellants' submission that the legislation did not permit the licence holder and the operator to be changed on the same complaint. Whatever the position may be in England, there is in terms of our law and practice no reason why a licence holder and an operator (or indeed anyone else) cannot be relevantly and competently charged with an identical offence on the same complaint or indictment, with the result that both are found guilty. In our experience, this is not unknown in practice in a number of other areas. It is easy to imagine circumstances where someone knowingly causes or permits waste to be deposited and at the same time another person illegally deposits the same waste. It therefore follows that we do not consider that the charge against the licence holder, which was originally before the sheriff, was necessarily incompetent, although we can see that the sheriff may have had grounds for considering that the charge, as framed against the licence holder, may have not been entirely relevantly expressed.

[18] In all these circumstances we refuse the supplementary ground of appeal and remit back to the sheriff to proceed as accords.