Atlantic Recycling Limited v R

A permit condition requiring an operator to manage and operate activities in accordance with a written fire-prevention plan, using relevant guidance, makes compliance with the plan mandatory. The guidance assists implementation of the plan; it does not provide an alternative means of compliance.

Accordingly, proof of a breach of the plan may establish the offence without separate proof that conditions fell below the guidance standard or that fire risk increased. Equivalent or superior measures may be taken in addition to, but not instead of, the plan. Terms cannot be implied into an unambiguous public document carrying criminal sanctions unless necessary.

Atlantic Recycling Limited pleaded guilty to failing to comply with a permit condition, contrary to regulation 38(2) of the Environmental Permitting (England and Wales) Regulations 2016. The plea followed the Recorder’s rulings that the prosecution did not have to prove either an increased fire risk or a failure to meet the relevant guidance, once breach of Atlantic’s fire-prevention plan was proved.

The Recorder also rejected Atlantic’s contention that the plan’s requirements applied only to waste in storage and not to material undergoing recovery. Following refusal by a single judge, Atlantic renewed its application for leave to appeal against conviction, challenging both rulings.

1. The renewed application for leave to appeal against conviction was refused. Condition 3.7.1 required the operator to manage and operate its permitted activities in accordance with the written fire-prevention plan, using the current relevant guidance. On its natural and ordinary meaning, the condition required application of the plan with the assistance of the guidance. It did not permit the guidance to be used instead of the plan.

2. The condition was unambiguous. Its context and purpose reinforced that construction: the mandatory language defined how the permit was to be operated and ensured clear, enforceable obligations within a regime carrying criminal penalties. The plan set an irreducible minimum. Atlantic could adopt equivalent or superior measures, but only in addition to compliance with the plan.

3. Thus, if Atlantic breached the plan in the ways alleged, the offence was made out without further proof that the site fell below the guidance standard or that the breaches increased fire risk. Those matters could potentially mitigate sentence but were not elements of the offence.

4. Applying the approach in Trump International Golf Club v Scottish Ministers [2015] UKSC 74, terms could not be implied into this unambiguous public document merely to alter that result. Implication required necessity and, because criminal sanctions were involved, great restraint.

5. The storage/recovery issue was also unarguable. Condition 3.7.1 applied to all authorised activities. The permit’s definition of activities included storage pending other operations. Neal Soil Suppliers Ltd v Natural Resources Wales (No 2) [2017] EWCA Crim 645 was not in point because storage was not covered in that case, whereas it was covered by this permit.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 325, refused Atlantic’s renewed application for leave to appeal against conviction.
• Single judge: Refused leave to appeal against conviction; no citation was stated.
• Crown Court at Cardiff: The Recorder ruled on 23 January 2023 against Atlantic’s proposed defences. Atlantic then pleaded guilty on 30 January 2023, while reserving its right to seek leave to appeal against conviction.