Recycled Materials Supplies Ltd, R v

Under the Environmental Permitting (England and Wales) Regulations 2010, regulatory functions for a waste-recovery operation belong to the Environment Agency unless the operation is, in reality, a Part B activity within the local authority’s functions. Plant forming an integral and effectively permanent part of a large, mixed-material waste operation is not rendered Part B mobile plant merely because it crushes some bricks, tiles or concrete.

Separate permits may operate at one site where mobile plant is deployed to carry out the activity authorised by its permit. That possibility does not permit overlapping regulation of the same waste operation. A criminal defendant may raise the issuing authority’s lack of jurisdiction as a defence to proceedings for breach of a permit condition.

The appellant operated a permanent waste-recovery business at Sunshine Wharf. It crushed and processed construction and demolition waste, including bricks, tiles and concrete, together with a wider range of materials.

It held an Environment Agency permit for the site’s waste operation and a London Borough of Newham permit which purported to authorise two crushers and a screener as mobile plant carrying out specified Part B activities. Following two occasions on which lorries left the site without proper enclosure, the appellant pleaded guilty to two offences under the latter permit after adverse rulings in the Crown Court at Snaresbrook.

With leave granted on a renewed application, [2016] EWCA Crim 2016, the appellant challenged the local authority’s jurisdiction to issue and enforce that permit. The central issue was which regulator had functions in respect of the integrated Sunshine Wharf operation.

1. Appeal allowed. The local authority had no jurisdiction to issue or enforce its permit while the machinery was being used as an integral and effectively permanent part of the Sunshine Wharf waste operation.

2. The operation was a waste operation and regulated facility. It was not an installation. Under Regulation 32 of the Environmental Permitting (England and Wales) Regulations 2010, the Environment Agency exercised the relevant regulatory functions unless the operation was a Part B activity. Although bricks, tiles and concrete passed through the site, their processing was not a separate or discrete activity. The reality was a large-scale recovery operation processing mixed waste materials.

3. The statutory definitions made Part B mobile plant and waste mobile plant mutually exclusive. On the assumption that the machinery was mobile plant, it was used for a waste operation and not a Part B activity. It was therefore waste mobile plant and outside the local authority’s authority.

4. Regulation 16 permits separate environmental permits where mobile plant is deployed at a separately regulated facility. It does not require dual regulation. The mobile-plant permit applies only while the plant performs the limited activity which that permit authorises; where it does not, the operator must rely on the site permit. There was no scope on the facts for joint regulation of this operation.

5. The court did not decide whether condition 6.3 reasonably related to the purpose of the local authority permit. That issue did not arise once the permit was held outside the authority’s jurisdiction. The respondent’s reliance on R v Wicks [1998] AC 92 did not prevent the appellant raising the fundamental jurisdictional objection as a defence in the criminal proceedings.

• Court of Appeal (Criminal Division): Allowed the appellant’s appeal against conviction and held that the London Borough of Newham lacked jurisdiction to regulate the Sunshine Wharf waste operation.
• Crown Court at Snaresbrook: On 10 June 2015, following rulings on 5 and 10 June 2015, convicted the appellant on guilty pleas to two breaches of environmental permit conditions.