The prosecutor appealed against a finding of no case to answer. The defendants were accused in relation to the deposit on farm land of soil and sub-soil excavated during construction works on other land. The defendants included the works manager and the farm owners. The prosecutor said the materials were controlled waste requiring a license for disposal. The defendants said they had intended the materials would allow for the construction of a hard standing for the farm, and an inspector had given his written opinion that the primary purpose was engineering and not waste disposal, and was permitted development. The defendants had argued that it was not waste, and if it was it was not controlled waste. The court had found the prosecutor’s evidence insufficient.
Held: The appeal succeeded. McCombe J said: ‘We conclude, like the Court of Appeal in Northern Ireland [in Department of the Environment v Felix O’Hare and Another [2007] NICA 45], that excavated soil which has to be discarded by the then ‘holder’ is capable of being waste within the Act and, in any individual case, ordinarily will be. Having become waste it remains waste unless something happens to alter that. Whether such an event has happened is a question of fact for the jury. The possibility of re-use at some indefinite future time does not alter its status: see Palin Granit, and indeed ARCO. Actual re-use may do so (Inglenorth), but only if consistent with the aims and objectives of the Act and of the Directive: (c.f. O’Hare), the principal ones of which are the avoidance of harm to persons or to the environment, as set out in the recitals to the Directive. Which of those aims and objectives are relevant to an individual case will depend on the cases presented by the parties. In this case, for example, the main concern maintained by the Crown is for the environment around the village where the respondents’ farm lies (as a Special Area of Conservation) and visual amenity in the area generally. Matters which, in our judgment, are readily capable of assessment by a jury in deciding whether any material in issue is in fact ‘waste’.
McCombe J continued: ‘In the first place, he was in error in assessing the status of the materials entirely by reference to the respondents as ‘holder'[s]: see paragraph 9 of the judgment, last sentence. The hauliers were also clearly ‘holders’ of materials which it was open to the jury to find to have been waste from the moment of excavation at the neighbouring farm and requiring to be discarded by the land owners as ‘holders’. The additional question was whether what the jury could find to be ‘waste’ from the moment of excavation to the moment immediately prior to deposit on the respondents’ land ceased to be so because of the intended and actual use of it by the new holders. That too, in our judgment, was a question of fact for the jury.
Secondly, the judge fell into error, we think, because he then concentrated entirely upon the intentions of the respondents to put the material to immediate use and found that it could not be waste because there was not the slightest element of discarding in the use to which they put it immediately after the deposit: see paragraph 18. At the close of the Crown’s case there was to our minds undoubtedly evidence to go to the jury which would entitle them to find that these materials were waste that were required to be disposed of by the producers and by the hauliers and that the respondents had been paid to relieve that need on their part. If satisfied, on that material, that this was waste at that stage, the further question that remained for the jury was whether, having regard to the aims of the Directive, the materials ceased to be waste, no longer being discarded by anyone, which was being subjected to acceptable recovery or disposal.’
Hughes LJ, McCombe J, Sharp DBE J
[2010] EWCA Crim 927
Bailii
Environmental Protection Act 1990
England and Wales
Cited by:
Considered – Evan Jones and Another, Regina v CACD 2011
Surplus soil and subsoil from a pipeline excavation was hauled by the appellants to other land where it was tipped. The hauliers were convicted of depositing controlled waste contrary to section 33(1) of the 1990 Act. The complaint was that the . .
Cited – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Cited – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Crime, Environment
Updated: 01 November 2021; Ref: scu.414598