Milton Keynes Council v Leisure Connection Ltd

Under Environmental Protection Act 1990, section 34(1)(b), the prosecution must prove a failure to take all measures reasonably required in the circumstances to prevent controlled waste escaping from the defendant’s control. Proof of an escape alone does not automatically establish that failure. However, where the escape appears preventable, and there is no evidence that the producer took reasonable measures beyond providing basic equipment, a prima facie case may arise. An employee’s failure to perform the statutory duty is relevant to whether the corporate employer itself took reasonable measures, without requiring the court to decide wider questions of vicarious liability or attribution.

Milton Keynes Council brought a prosecutor’s appeal by way of case stated against the decision of justices at Milton Keynes Magistrates’ Court on 20 February 2008. The justices ruled that Leisure Connection Ltd had no case to answer on an information alleging a breach of section 34(1)(b) of the Environmental Protection Act 1990.

The allegation concerned controlled waste escaping from the rear of a leisure centre operated by the company. The prosecution relied on evidence of repeated waste accumulation, the company’s general manager’s guilty plea to a corresponding offence, and the absence of evidence that the company had taken relevant preventive measures. The central issue was whether that evidence established a prima facie case against the corporate employer.

1. Appeal allowed. The justices had been wrong to conclude that Leisure Connection Ltd had no case to answer. Their decision was set aside and the matter was remitted to a different bench of magistrates for a hearing de novo. The court indicated that consideration should be given to the matter being heard by a District Judge (Magistrates’ Courts).
2. Section 34(1)(b) imposes on a person producing controlled waste a duty to take all measures applicable to that person in that capacity which are reasonable in the circumstances to prevent the waste escaping from that person’s control. The prosecution need not prove that an escape occurred as a separate element; it must prove a failure to exercise that statutory duty.
3. An escape does not, by itself, establish a failure to take all reasonable measures. Exceptional circumstances, such as an escape caused by a third party’s explosion, negligence or malice, may prevent that inference. Here, however, the escape appeared capable of prevention by reasonable measures. The mere provision of a compactor was insufficient.
4. The company was itself a producer of controlled waste and therefore had its own statutory duty. The general manager’s failure to take reasonable measures was relevant to whether the company had discharged that duty, even assuming that the company was to be distinguished from the manager’s acts. There was no evidence that the company had taken measures beyond providing the compactor, and the only reasonable inference at the close of the prosecution case was that a prima facie case existed.
5. The court deliberately declined to determine the wider questions of vicarious liability, attribution, and the burden of proof, because the appeal succeeded on the narrower evidential ground. The appellant was awarded agreed costs of £6,509.25.

• High Court (Administrative Court): On a prosecutor’s appeal by way of case stated, the court allowed the appeal, set aside the magistrates’ decision that there was no case to answer, and remitted the matter to a different bench for consideration de novo.
• Milton Keynes Magistrates’ Court: On 20 February 2008, the justices ruled that the defendant had no case to answer.