Gateway Professional Services (Management) Ltd v Kingston Upon Hull City Council

For the purposes of Environmental Protection Act 1990, section 34(1)(b), “escape” does not extend to the deliberate depositing or dumping of controlled waste. Such conduct falls within section 33(1)(a), which prohibits the deposit of controlled waste without the required waste management licence. The absence of a risk to human health does not itself provide a defence to a prosecution under section 33(1)(a). A conviction under section 34(1)(b) cannot therefore stand where the alleged environmental wrong consists of deliberate dumping rather than escape from control.

An employee of the claimant company deposited bags of commercial office waste on adjoining land, contrary to the company’s instructions. The company was convicted by the Humberside Justices sitting at Hull and Holderness Magistrates’ Court of failing to take reasonable measures to prevent the escape of controlled waste, contrary to section 34 of the Environmental Protection Act 1990.

On a case stated, the company appealed on the question whether “escape of waste from his control” in section 34(1)(b) encompassed deliberate depositing by an employee on another person’s land. The central issue was the proper construction of “escape”.

1. Appeal allowed. The magistrates had erred in law, and the conviction was set aside and quashed.
2. Lord Justice Laws held that the ordinary meaning of “escape” was not apt to describe the deliberate depositing of waste. The prosecutor’s wider interpretation was linguistically unsustainable.
3. The court considered that deliberate dumping was plainly addressed by section 33(1)(a) of the Environmental Protection Act 1990. It was unnecessary, and inappropriate on these facts, to stretch section 34(1)(b) to cover conduct already caught by that provision.
4. The fact that the waste consisted of ordinary office paper and posed no risk to human health did not provide a defence to a prosecution under section 33(1)(a). Considerations relating to harm to human health were material to section 33(1)(c) and the emergency defence in section 33(7)(c), but not to the section 33(1)(a) offence.
5. The company had not been prosecuted under section 33(1)(a), section 34(1)(a), or any other provision that properly addressed the alleged conduct. The prosecution under section 34(1)(b) therefore did not fit the facts. Mr Justice Eady agreed.

• High Court (Administrative Court): On a case stated from the Humberside Justices sitting at Hull and Holderness Magistrates’ Court, the court allowed the appeal, answered the stated question in the affirmative, and quashed the conviction.
• Hull and Holderness Magistrates’ Court: The claimant was convicted on 1 September 2003 of failing to take reasonable measures to prevent the escape of controlled waste contrary to section 34 of the Environmental Protection Act 1990.