Walker & Son (Hauliers) Ltd v Environment Agency

For the offence of knowingly permitting the operation of a regulated facility without an environmental permit, knowledge is required of the relevant waste operation and of the defendant’s permitting it. It is not necessary to prove that the defendant knew the operation was unauthorised by an environmental permit. The absence of a permit is an objective element of the offence.

This construction accords with the strict-liability structure of the Environmental Permitting (England and Wales) Regulations 2007. A defendant cannot introduce a due-diligence defence by asserting ignorance of the permit’s existence, scope or breach.

The appellant company owned a redevelopment site at which its demolition contractor operated an illegal waste transfer station and burned waste. The company’s director knew that some burning and crushing were occurring, but maintained that these activities appeared consistent with the demolition works.

After the Crown Court at Nottingham ruled that knowledge of the absence of an environmental permit was unnecessary, the company pleaded guilty to knowingly permitting the operation of a regulated facility without a permit. It appealed against conviction with leave of the Single Judge.

The central issue was whether the words “knowingly permit” in Regulation 38(1)(a) required the prosecution to prove knowledge both of the waste operation and of its lack of environmental authorisation.

1. Appeal dismissed. Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2007 requires proof that the defendant knowingly permitted the relevant waste operation. It does not require proof that the defendant knew that the operation was unauthorised by an environmental permit.

2. The wording was capable of either construction when read in isolation. Its meaning was resolved by the structure and judicial interpretation of comparable pollution-control offences. In Ashcroft v. Cambro Waste Products Ltd [1981] 1 WLR 1349 and Shanks & McEwan (Teesside) Ltd v. Environment Agency [1999] QB 333, knowledge attached to the deposit or waste activity, while compliance with a licence was an objective condition. The same structure was replicated in the 2007 Regulations.

3. Westminster City Council v. Croyalgrange Ltd [1986] 1 WLR 674 did not require a different result. It concerned differently expressed sex-shop licensing provisions and proceeded on the particular inference that a person permitting the exhibition of pornographic material would know the character of the use. A person may, however, be unaware of a particular waste operation, which explains the requirement for knowledge of the facts of that operation.

4. The construction advanced by the company would effectively create a due-diligence defence despite the Regulations providing none. Assertions that the defendant was misled about compliance therefore do not answer liability. Knowledge of an infraction or of permit terms may be relevant to sentence, but the court made no ruling on sentencing.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 100, the court dismissed the company’s appeal against conviction and upheld the Crown Court’s interpretation of Regulation 38(1)(a).
• Crown Court at Nottingham: His Honour Judge Lea ruled that the prosecution did not have to prove knowledge that the known waste operations lacked an environmental permit. The company then pleaded guilty to count 8, while reserving its ability to seek permission to appeal.