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In what circumstances is a facility exempt?

 

Mustafa and Breslin

[2020] EWCA Crim 597

 

By Liam Walker

 

The applicants submitted that the principle of legal certainty required the Environmental Permitting (England and Wales) Regulations 2010 (SI 2010/675) to be interpreted as meaning that a facility would cease to be an ‘exempt facility’ only if deregistered under paragraph 8(1)(b) of Schedule 2. The Court rejected those submissions.

 

Facts

 

The applicants were the directors of a company that operated a facility for the storage and treatment of waste wood. Under regulation 8 of the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, such a facility had to be either a ‘regulated facility,’ which required an environmental permit, or an ‘exempt facility.’ The company did not apply for a permit and nor was any permit ever granted. The company registered the operation at the site as an ‘exempt facility.’ Under the Regulations, an ‘exempt facility’ is one which is allowed to store or treat up to 500 tonnes of waste wood over any seven-day period. This is known as the ‘T6 exemption.’

 

Officers from the Environment Agency attended the facility on various occasions and found evidence of waste exceeding the 500 tonne limit. The Agency advised the company to reduce the amount stored at the facility or risk prosecution. The company was warned that non-compliance with an exemption renders the exemption invalid. The Environment Agency, after further visits and warnings, extended the deadline for compliance.  Eventually, on 12 March 2014, the Environment Agency removed the company from the register of exempt facilities. They notified the company that their T6 exemption had been removed from the public register and that the storage of waste wood at the site constituted an offence under regulation 38(1)(a). The Environment Agency charged the applicants and one other director with contravening regulation 41(1)(a) and (b): "by consenting or conniving in the commission of an offence by a body corporate" and "by neglecting in the commission of an offence by a body corporate" respectively.

 

At first instance in the Crown Court, the applicants succeeded in their application to dismiss on the basis that the T6 exemption had remained in place until it was removed from the public register. The Environment Agency successfully challenged the Crown Court’s decision and was granted permission to prefer a voluntarily bill of indictment on a single consolidated count of contravention of regulation 12(1)(a) of the Regulations, thereby committing the offence under regulation 38(1)(a) between 3 September and 6 December 2013. The applicants were convicted of that offence and appealed against conviction.

 

Appeal

 

The issue on appeal was whether the applicants’ facility had been an exempt facility or not. The applicants submitted that an exempt facility did not cease to be exempt until de-registration.

 

The Court of Appeal held that a waste operation will only be an ‘exempt facility’ if it fully meets the requirements of paragraph 3(1) of Schedule 2. The conditions for an operation to be an ‘exempt facility’ were set out in paragraph 3(1) of Schedule 2 to the Regulations:

  1. the operation satisfied the general and specific conditions specified in Part 1 of Schedule 3 to the Regulations for the relevant description of the operation;
  2. it was registered; and
  3. the type and quantity of waste, and method of disposal or recovery, were consistent with the relevant objectives of Directive (EC) 2008/98 – that it did not endanger human health or harm the environment.

If the facility does not meet the requirements of paragraph 3(1) of Schedule 2, it will be a ‘regulated facility.’ If, as a ‘regulated facility,’ it is operated without an environmental permit, there is a breach of regulation 12, and an offence under regulation 38 has been committed.

De-registration, under paragraph 8 of Schedule 2 to the Regulations, would render the facility no longer an exempt facility, because it would cease to satisfy the second requirement of paragraph 3(1). The Court held that a facility could also cease to be an exempt facility by failing to comply with one or both of the other two requirements, in para 3(1)(a) and (c).

 

The Court, at paragraph 79, observed that:

 

The concept of ‘legal certainty’ here is enshrined in the express requirements that have to be met if an operation is to be an ‘exempt waste operation’ and thus an ‘exempt facility.’ Whether an operation is an ‘exempt facility’ depends on the operator having registered the exemption and operating within its constraints. It is a matter of fact whether those requirements are satisfied at any given time. If they are not met, then for the duration of their not being met the operation has ceased to be, and is not, an ‘exempt facility.’

The Court of Appeal held that the prosecution was well founded and was not vitiated by any misconception or misapplication of the legislative provisions.

 

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