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Insights // 08 September 2020

When is an Exempt Waste Facility No Longer Exempt?

Partner Karen Jones, head of our leading Planning & Environmental Law team, explains when an "exempt waste facility" is no longer an “exempt facility”. 

The Court of Appeal Criminal Division has recently had occasion to consider the circumstances in which a waste facility ceased to be an “exempt facility” under the Environmental Permitting (England and Wales) Regulations 2010 (now replaced by the 2016 Regulations).

The requirements of the Regulations are that a facility is either regulated, which requires an environmental permit, or is an exempt facility.  In the case of Environment Agency v Mustafa [2020], no environmental permit was granted and the company registered the operations at the site as an exempt facility.  That exemption allowed up to 500 tonnes of waste wood to be stored or treated at the site in any 7 day period (the T6 exemption).

Environment Agency officers visited the site on a number of occasions and found that the waste wood storage exceeded 500 tonnes.  The agency took action by means of formal letters to the company requiring it to stop receiving waste and to bring the site into compliance with the T6 exemption, and subsequently advising it that the exemption it held had been removed from the public register and that continued storage would be an offence under regulation 38 (1)1(a).

Directors of the company were prosecuted for contravention of Regulation 12(1) (a) and 38(1) (a), the offence being carried out with the consent, or connivance of, or attributable to neglect on the part of a Director.   The defendants’ appealed to the Court of Appeal on the question of whether directions given to the jury on when an exemption could be considered to be removed from the public register were correct.  They alleged that the Judge erred in directing the jury on the law relating to the offence and, in particular, on the question of whether, at the relevant time, the Company’s operation was an “exempt facility”.

The requirements for an operation to be exempt are set out in paragraph 3(1) of Schedule 2 to the Regulations and consist of compliance with three criteria.  First, the operation satisfies the ”general and specific conditions” in Part 1 of Schedule 3 for the relevant description of the operation, second it was registered and third, that the type and quantity of waste and method of disposal or recovery did not endanger human health or harm the environment.

A failure to satisfy any one of these requirements means that the operation cannot be considered an exempt waste operation for as long as that requirement is not met.  If any of the three are not met the operation cannot be an “exempt facility” and it must then be a “regulated facility” and require a permit to operate or would otherwise be in breach of Regulation 12.

The Court said that the registration itself did not confer continued status as an “exempt facility” nor did such registration bestow immunity from the consequences of ceasing to comply with the other criteria.  The continuing registration did not afford protection from prosecution unless the other requirements of the exemption criteria were also complied with.

The Court adopted the approach that removal of an entry from the register could not, itself, arise unless the facility had already ceased to be an exempt facility.  It would not be the act of removal from the register itself that caused the facility to cease to be an “exempt facility” as it would have ceased to be an “exempt facility” before deregistration took place.

The Court found that the defendants’ central argument that the exemption did not cease until deregistration had occurred was mistaken.  The Company had breached the requirements of the T6 exemption and it was that which had caused the Company’s operation to no longer be an “exempt waste operation” and the facility had, at that point, ceased to be an “exempt facility”.  Once that had occurred, it could only be a regulated facility for which no environmental permit had been granted and prosecution and conviction could follow. 

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

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. 

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.

Karen Jones

Karen Jones

Partner, Planning & Environmental Law

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