Stone & Anor v Environment Agency

Storage of waste pending recovery or disposal may remain a continuing waste operation, even after the original business has ceased and the waste is awaiting removal. The offence of knowingly permitting an unauthorised operation does not require a positive act during the charged period. It requires knowledge of the operation and a failure to prevent it. Applications for relief from sanctions and extensions of time are governed by the three-stage approach: seriousness and significance of the breach, the reason for it, and all the circumstances, including the factors in CPR r.3.9.

The appellants were convicted by Norwich Magistrates’ Court of offences under the Environmental Permitting (England and Wales) Regulations 2010 arising from the continued presence of approximately 471 tonnes of mattresses at a site owned by the second appellant. The magistrates stated a case raising two questions: whether the continued storage constituted a waste operation, and whether knowingly permitting such an operation required a positive act by the accused.

The appellants lodged their appeal out of time. The court granted an extension and then determined the stated questions.

1. Extension of time. The delay in lodging the appeal was serious and resulted from the solicitor’s mistake. Applying Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v T.H. White Ltd [2014] EWCA Civ 906, the court considered the seriousness of the breach, its reason, and all the circumstances. The absence of prejudice or additional cost, the respondent’s prior knowledge of the intended appeal, and the fact that refusal would end the appeal justified an extension.
2. Question 1. The magistrates were entitled to find that storage of the mattresses continued to be a waste operation during the charged period. The definitions in the 2010 Regulations incorporated the concepts of recovery and disposal in the Waste Framework Directive. Annex I category D15 and Annex II category R13 included storage pending disposal or recovery. The fact that the mattresses remained passively on the site, rather than being deliberately retained as part of an active recycling business, did not prevent the activity from being storage.
3. Question 2. Regulation 38’s knowingly permitting limb did not require proof that the accused took a positive act during the charged period. Alphacell Ltd v Woodward [1972] AC 824 explained that knowingly permitting involved knowledge accompanied by a failure to prevent the prohibited activity. Walker and Son (Hauliers) Ltd v Environment Agency [2014] EWCA Crim 100 likewise supported directing the fact-finder to consider whether the defendant allowed or failed to prevent the waste operation.
4. The prosecution nevertheless had to prove both knowledge and a failure to prevent the operation. The magistrates found those matters proved and rejected the appellants’ characterisation of the steps taken as a clean-up operation.
5. The proposed amendments to the stated case and the request to add further evidence were refused. The appeal was dismissed.

• Norwich Magistrates’ Court: convicted the appellants on 28 March 2017 and sentenced them on 5 May 2017.
• High Court (Administrative Court): on appeal by way of case stated, answered both questions in favour of the respondent and dismissed the appeal.