Skipaway Ltd v The Environment Agency

On an appeal by way of case stated, the High Court is confined to the facts set out in the stated case, unless the case is amended. Waste remains “stored” under licence conditions regulating storage even while it is being handled, sorted, treated or processed. A provision is enforceable in criminal proceedings if a sufficiently clear meaning can be ascertained; genuine controversy over its interpretation does not make it void for uncertainty. A court need not reopen submissions on every matter discovered after the hearing, although it should do so where the matter is decisive and prudently should do so in cases of doubt. Any unfairness arising from an omission may be remedied through the appeal process.

Skipaway Ltd v The Environment Agency appealed by way of case stated from its convictions by Sittingbourne Magistrates’ Court for six offences under section 33(6) of the Environmental Protection Act 1990. The charges concerned alleged breaches of waste management licence conditions governing the position and height of waste at a recycling centre.

The appeal raised issues concerning whether the waste was controlled waste, whether the licence conditions were sufficiently precise for criminal enforcement, whether waste being handled or processed was nevertheless stored, and whether the magistrates had acted unfairly by referring to another licence condition without inviting further submissions.

1. Appeal by case stated. The court is confined to the facts set out in the stated case. If relevant matters are omitted, the proper course is to seek amendment under section 28(A)(2) of the Supreme Court Act 1981. The court nevertheless considered the licence as a whole because the meaning of a term in a written instrument must be determined in context.
2. Controlled waste. The magistrates were entitled to find beyond reasonable doubt that the waste was controlled waste. Waste from a farmhouse may be household waste, and waste does not change its classification merely because it is deposited on agricultural land before collection. The mere possibility that waste came from a farm or quarry did not prevent proof beyond reasonable doubt. A remote possibility is compatible with proof at the criminal standard. Further, where controlled and uncontrolled waste are mixed, the storage conditions may be breached if the mixture contains a significant quantity of controlled waste. That approach was consistent with R v Rothschild & RH Tomlinson Ltd [2004] EWCA 3320.
3. Storage. “Stored” in conditions 3.3 and 3.4 meant waste deposited on the site until removal. Waste remained stored while handled, sorted, treated or processed. The magistrates therefore reached the correct conclusion. Kaye v Burrows [1931] AC 446 provided no assistance because its context was materially different.
4. Certainty. Conditions 3.3 and 3.4 were sufficiently clear to support criminal convictions. A genuine dispute about the interpretation of a provision does not make it too uncertain to enforce if its meaning can be ascertained.
5. Fairness and reasons. Fairness does not require every potentially relevant matter to be referred back to the parties. It is required where the matter is decisive; where it is marginal, the tribunal may decide whether further submissions are needed. In any event, the appeal gave the appellant a full opportunity to address condition 2.7, so any possible unfairness was remedied. Applying the approach in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, the whole decision-making process, including the appeal, was relevant. The magistrates’ reasons were sufficient to permit effective scrutiny.
6. The questions stated for the opinion of the High Court were answered accordingly, and the convictions were not quashed.

• High Court (Administrative Court). The appeal by way of case stated from the convictions of Sittingbourne Magistrates’ Court was dismissed. The convictions were upheld.