Mustafa v The Environment Agency

A registered waste operation is an exempt facility only while it satisfies every cumulative requirement in paragraph 3(1) of Schedule 2 to the Environmental Permitting (England and Wales) Regulations 2010. Registration alone neither approves the operation nor protects it from prosecution. If any requirement is breached, the operation ceases at once to be exempt, becomes a regulated facility, and may not lawfully operate without an environmental permit.

The duty to remove an entry from the register arises after the facility has ceased to be exempt; de-registration is not the event that determines its status. A conviction is not rendered unsafe merely because an accused, after legal advice, tactically chose not to seek a good-character direction.

Prime Biomass Ltd operated a waste-wood treatment and storage site under a registered T6 exemption. The Environment Agency alleged that the company exceeded the 500-tonne limit and operated in a manner inconsistent with the objectives of the Waste Framework Directive.

H.H.J. Lodge dismissed the original charges, holding that the site remained exempt until de-registration. Spencer J granted leave for a voluntary bill of indictment after rejecting that construction. At the ensuing Central Criminal Court trial, Mustafa and Breslin were convicted of the consolidated count; Hennessy was acquitted.

Mustafa appealed on the construction of the 2010 Regulations and sought to add a good-character ground. Breslin adopted the construction ground and sought an extension of time to appeal. The central issue was whether a registered operation remained an exempt facility despite non-compliance with the exemption conditions.

1. Mustafa’s appeal was dismissed and Breslin’s applications were refused. The trial judge correctly directed the jury on the law. Spencer J’s construction of the Environmental Permitting (England and Wales) Regulations 2010 was sound.

2. Regulation 5 makes a waste operation an exempt facility only if it meets all three requirements in paragraph 3(1) of Schedule 2. It must comply with the applicable general and specific conditions, be registered, and operate consistently with the objectives in article 13 of the Waste Framework Directive. Those requirements are mandatory and cumulative. Failure to meet any one of them means that the operation is not exempt and can only be a regulated facility.

3. Registration does not confer an enduring exempt status, approval by the Environment Agency, or immunity from prosecution. The removal duty in paragraph 8(1)(b) arises only after the facility has already ceased to be exempt. Although de-registration itself ends compliance with the registration requirement, it is not the sole means by which a facility can lose exempt status.

4. Accordingly, an operator which, while no longer exempt, operates a regulated facility without an environmental permit breaches regulation 12 and commits the regulation 38 offence. The court regarded the analogous reasoning in O’Grady Plant and Haulage Ltd. v London Borough of Tower Hamlets Council [2011] EWCA Crim 1339, Environment Agency v Stanford [1999] Env. L.R. 286, and Environment Agency v R. Newcomb & Sons Ltd. and another [2002] EWHC 2095 (Admin) as strongly persuasive support.

5. The proposed good-character ground did not make Mustafa’s conviction unsafe. The warning letter did not itself impugn his character, but Mustafa and counsel had made a tactical choice not to pursue a formal ruling or direction because of the risk of opening a damaging inquiry. The court would not revisit that decision after conviction. It therefore refused the extension sought for that fresh ground.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 597, dismissed Mustafa’s appeal and refused Breslin’s applications.

• Central Criminal Court: H.H.J. Anthony Bate convicted Mustafa and Breslin on 2 November 2018 on the consolidated count. Hennessy was acquitted.

• High Court: Spencer J granted leave on 14 March 2016 to prefer a voluntary bill of indictment, rejecting H.H.J. Lodge’s interpretation of the Environmental Permitting (England and Wales) Regulations 2010.

• Crown Court at Basildon: H.H.J. Lodge dismissed the original charges and quashed the indictment on 9 December 2015.