Mountpace Ltd v London Borough of Haringey

Under section 34(1)(c) of the Environmental Protection Act 1990, reasonable measures are assessed by reference to the waste holder’s capacity and the circumstances of the particular transfer. That assessment may properly include measures taken before the transfer in anticipation of it. A producer remains subject to the duty even where renovation and waste removal are contracted out. Reliance on an independent contractor, without adequate instructions, checks or procedures, may be insufficient. The duty concerns securing lawful transfer and the required written description. It is distinct from the preventative duty under section 34(1)(a). There is no reverse legal burden of proof under section 34, although an evidential burden may arise after a prima facie case is established.

Mountpace Ltd appealed by case stated against its conviction by Haringey Magistrates’ Court on two offences under section 34(1)(c) and section 34(6) of the Environmental Protection Act 1990. The company owned premises undergoing renovation and had verbally engaged an independent contractor to carry out the works and remove waste. Waste was subsequently transferred to a fly-tipper.

The appeal concerned whether the magistrates could consider the company’s conduct before the dates of transfer, whether section 34 imposed a reverse burden of proof, and whether the evidence established a failure to take reasonable measures.

1. The appeal was dismissed. The magistrates correctly convicted the appellant on both charges.

2. Section 34(1)(c) imposes a duty, on the occasion of a particular transfer, to take all measures applicable to the waste holder in that capacity which are reasonable in the circumstances to secure transfer to an authorised person and delivery of the required written description.

3. The relevant capacity and circumstances are assessed on the transfer occasion. That does not exclude consideration of earlier conduct. Measures taken beforehand in anticipation of a foreseeable transfer may be necessary to secure the statutory objectives, especially where the waste holder will not be present when the transfer occurs.

4. Mountpace remained a producer of the waste even though the renovation work was physically performed by an independent contractor. While the waste was generated on its premises by activities undertaken on its behalf, the company had control of the waste for the purposes of determining the measures reasonably expected of it.

5. The company could reasonably foresee that controlled waste would be produced and removed during the works. Its failure to give instructions, require appropriate records or establish procedures, together with its reliance on the contractor’s common sense and past performance, entitled the magistrates to find that the duty had not been discharged.

6. The section 34(1)(c) duty was not elided with the separate preventative duty under section 34(1)(a). The former arises on a transfer and may be breached even without a section 33 contravention. Nor was it a defence that the unlawful transfer might have occurred even if reasonable measures had been taken: that concerned causation, whereas the offence was failure to comply with the statutory duty.

7. Section 34 creates no reverse burden of proof in the true sense. Once a prima facie case is established, the defendant may bear an evidential burden of adducing evidence that reasonable measures were taken, but the prosecution retains the burden of proof and the magistrates must decide whether the necessary inferences are established to the criminal standard.

8. The questions stated were answered affirmatively, subject to the qualification that earlier conduct formed part of the assessment of the circumstances and capacity on the transfer dates. The conviction was upheld.

• High Court (Administrative Court): The appeal by case stated was dismissed and the convictions were upheld.
• Haringey Magistrates’ Court: Mountpace Ltd was convicted on 18 August 2010 of two offences under section 34(1)(c) and section 34(6) of the Environmental Protection Act 1990.