Partner Karen Jones, head of our Planning and Environmental Law team, looks at recent cases in the waste management sector, including the question of cooperation with the Environment Agency during investigations and an illegal waste operation and storage.
There have been two cases recently of interest to the waste management sector.
First, the case of Millmore & Others v Environment Agency 2019 considered the question of cooperation with the Environment Agency during investigations. Section 108 of the Environment Act 1995 sets out the Agency’s investigative powers. The case of Millmore considers the ambit of Section 108 (4) (c), (j), (k) and (l) which give the Agency power to conduct examinations and investigation, require persons to give information, as well as requiring production of records and persons to afford facilities and assistance to Agency officers.
The Millmore case concerned deliberate obstruction and lack of cooperation from employees. The lack of cooperation stemmed from an investigation brought by the Agency into Southern Water Services Limited in July 2016 where Agency officers visited a number of wastewater treatment works and were met with a lack of cooperation in carrying out their duties. This lack of cooperation included an employee requesting Agency officers leave the site, removal of a number of site diaries and locking them in a vehicle, refusing to answer questions, refusal to unlock the gates to a site on instructions from a line manager and a management scientist employee refusing to allow Agency officers to remove items from the site or to accompany officers on a site visit so that a site inspection was prevented. These actions of non-cooperation were allegedly on instructions from the employer’s solicitor.
The Agency did seek to prosecute Southern Water Services Limited but the company was acquitted on the basis that the Agency had failed to prove that it was criminally liable for the relevant actions of its employees. Five employees were successfully prosecuted under Section 110 for obstructing Agency officers. The Court upheld the convictions for three of those five employees. In its deliberations the Divisional Court found that a mere omission such as refusing to open a gate can be obstruction under Section 110 and the Court made it clear that a positive act is not required to amount to an offenc under the Act. The Court was clear that there is no requirement for the consent of an occupier to be obtained before the Agency can exercise its powers under Section 108 of the 1995 Act.
The case serves as an important reminder of the extensive powers of Environment Agency officials and that obstruction is not advisable.
The second case concerns an illegal waste operation and illegal storage of more than 5,300 tons of mixed waste wood at a site in Great Staughton, Cambridgeshire. An individual involved in the illegal activity and a company have been fined, another individual imprisoned and an order made to pay more than £300,000 compensation. A company which organised the deliveries of waste to the site was fined £12,690 and ordered to pay £314,426 in compensation to the landowner who had been forced to pay to clear the waste.
The operations were carried out on a World War 2 airfield known as Little America Industrial Estate on the Cambridgeshire/Bedfordshire border. The landowner had been told that the site would be used to process timber and the operator registered a waste exemption which limited waste in any 7-day period to 500 tons. In fact around 1,000 tons were taken there every week for 5 weeks.
The Environment Agency investigated and found wood stacked up to 4 metres high. An emergency fire plan had to be drawn up as the waste created a significant fire risk for the local area.
Both individuals involved pleaded guilty to failing to take reasonable measures as waste brokers to comply with their statutory duty of care under the Environmental Protection Act 1990. The judge in the case described the exemptions as a “fig leaf” for an illegal operation.
The hefty fines combined with prison sentences confirm the Courts will continue to take a robust attitude to waste crime.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. A similar article was first published in Waste Planning Magazine.