Neal Soil Suppliers Ltd v Environment Agency

A notice under section 59 of the Environmental Protection Act 1990 is remedial. Its purpose is to secure the most appropriate steps for protecting human health and the environment, rather than to punish an offender or deter others.

Section 59 may lawfully require treatment or keeping of waste which would otherwise contravene section 33. Compliance with the notice does not constitute a criminal offence under section 33. There is no presumption that removal is preferable to treatment. The court must assess the appropriate remedial response on the evidence.

The claimant had deposited soil contaminated with Japanese Knotweed on its land without the necessary waste management licence. The Environment Agency served a notice under section 59 of the Environmental Protection Act 1990 requiring removal of the waste.

The claimant appealed, proposing treatment on site by rotovation and glyphosate, followed by testing and removal if eradication failed. The Magistrates’ Court dismissed the appeal. The Crown Court stated a case after declining to modify the notice, reasoning that treatment required a licence and would undermine the waste licensing system.

The issue was whether that approach was legally correct.

1. Appeal allowed and matter remitted. The Crown Court’s order was quashed and the claimant’s appeal was remitted for reconsideration. The claimant received its costs of the appeal, subject to detailed assessment.

2. Section 59(1) permits a notice to require removal, specified steps to eliminate or reduce the consequences of the deposit, or both. It may therefore lawfully permit the waste to remain on the land while requiring treatment or other remedial steps.

3. Section 33(1) must be read subject to section 59(1). Although treatment or keeping of controlled waste without a licence would otherwise be an offence, action taken in compliance with a section 59 notice does not constitute an offence under section 33(1). The Crown Court was wrong to treat the absence of a licence as preventing the proposed modification.

4. The purpose of section 59 is remedial. The court hearing an appeal must determine the most appropriate steps for protecting human health and the environment. Punishment for the original breach and deterrence of others are matters for criminal proceedings under section 33, not reasons to prefer removal under section 59.

5. There is no statutory presumption in favour of removal rather than treatment. The Crown Court had to reconsider the proposal without treating treatment as impermissible merely because it would otherwise involve unlicensed waste treatment or might confer a commercial benefit.

• Crown Court: dismissed the claimant’s appeal against the section 59 notice and stated a case for the High Court.
• High Court (Administrative Court): allowed the appeal, answered the stated question in the negative, quashed the Crown Court’s order and remitted the matter for reconsideration.