Environment Agency v Biffa Waste Services Ltd

A permit condition referring to odours “as perceived by an authorised officer” is not invalid or ultra vires merely because odour is assessed by human perception. Properly construed, the officer’s perception is a necessary evidential ingredient and a safeguard against irresponsible prosecutions. It does not make the officer the final arbiter or remove the court’s fact-finding function. The court must decide, on all the evidence, whether the relevant odour standard was breached. Difficulty in measuring odour does not justify transferring the adjudicative function from the court to an enforcement officer.

The Environment Agency appealed by way of case stated against the dismissal of charges brought against Biffa Waste Services Ltd concerning alleged breaches of an odour condition in a landfill permit. The district judge held that the condition was ultra vires because the words “as perceived by an authorised officer” introduced impermissible subjectivity and usurped the court’s fact-finding role. The central issue was whether the condition was invalid, particularly under principles of certainty and foreseeability, because it made the authorised officer’s perception relevant to proof of the offence.

1. The appeal was allowed. Condition 2.6.12 of permit BK 1988 was neither invalid nor ultra vires.
2. The closing words of the condition required evidence from an authorised Environment Agency officer as a necessary ingredient in a prosecution. They were likely to safeguard operators against irresponsible prosecutions by excluding proceedings based only on residents’ complaints.
3. Those words did not require the court to convict whenever the officer honestly held the relevant opinion. The court retained jurisdiction to assess all the evidence and decide whether odours had been emitted at levels contrary to the condition.
4. The court respectfully agreed with the reasoning in Procurator Fiscal v Seed Crushers (Scotland) Ltd [1998] Env LR 586, where the authorised officer’s evidence was treated as verification rather than conclusive proof. The reasoning adopted in R (On the application of United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2002] Env LR 21 was consistent with that conclusion.
5. The detailed monitoring provisions demonstrated the operator’s duty to monitor and the intended co-operation between the operator and the Agency. They did not support giving the Agency officer the first and last word on whether a breach had occurred.
6. The matter was permitted to proceed in the Magistrates’ Court. The Environment Agency was awarded the costs of the appeal.

• High Court (Administrative Court): allowed the Environment Agency’s appeal by case stated from the decision of District Judge Crabtree at North and East Hertfordshire Magistrates’ Court dated 4 April 2006. The condition was held valid and the Agency was awarded the appeal costs.