BADCOCK v HERTFORDSHIRE COUNTY COUNCIL [2002] EWCA Crim 1941

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST ALBANS
(His Honour Judge Cripps)
[2002] EWCA Crim 1941Case No Case Nos: 2002/00393/S3 and 2002/00782/S3Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
BADCOCKAppellantHERTFORDSHIRE COUNTY COUNCILRespondent
Before
Lord Justice PotterMrs Justice RaffertyMr Justice HedleyJonathan Karas and Edward Sawyer (instructed by Lennon Wainwright, Amersham for the appellantDermot Main Thompson (instructed by Hertfordshire County Council Legal Department) for the respondentDate 30 July 2002

Lord Justice Potter:

INTRODUCTION

[1]There is before the court an interlocutory appeal and cross-appeal by the defendants and the prosecutor, Hertfordshire County Council (“the council”), in relation to rulings made by HH Judge Cripps on 11 January 2002 at a preliminary hearing under s.29 of the Criminal Procedure and Investigations Act 1996 prior to the trial of the defendants, Steve Badcock and Steve Badcock Limited (hereafter referred to individually as “Badcock” and “the company” respectively) on an indictment for contravention of Enforcement Notices (Counts 15-22) and Stop Notices (Counts 1-14) served by the council upon the defendants in respect of their use of a large site at Bovingdon Airfield (“the land”) for importing, sorting and processing commercial waste on the land in the course of operating a waste recycling and transfer facility. THE BACKGROUND FACTS[2]The council is a non-metropolitan county council and its planning committee is responsible for all County planning matters. It is common ground that this case involves a county matter. The company, of which Badcock is a director, occupies land on which at all material times it purported to carry on activities incidental to its business as builders and contractors, but which the council concluded involved the handling and re-cycling of waste on a large scale. It is common ground that, if that conclusion is correct, the activities of the defendants constituted a breach of planning control.[3]On 21 June 2000, officers of the council visited the land where they witnessed Badcock and other servants and agents of the company in the course of importing, depositing, and processing by hand and machinery, mixed commercial waste consisting of plastic, metal, soils, concrete and green waste. On 26 June the council issued and served a planning contravention notice on Badcock and the company alleging a material change in use of the land from agriculture to mixed use and the operation of a waste recycling and transfer station without planning permission. The notice included a request for information. On 13 July 2000 there was a further visit by council officers who found that the activities were continuing. On 17 July planning consultants replied to the request for information on behalf of the defendants and said that the land was being used for the recycling of ‘surplus building material’ which did not constitute waste. They denied that the site was being used as a waste transfer station.[4]In the face of continuing activity, on 9 August 2000 the council served an Enforcement Notice in pursuance of its powers under sections 172 and 173 of the Town and Country Planning Act 1990 (“The 1990 Act”) and a Stop Notice of the same date, pursuant to sections 183 and 184 of the 1990 Act..[5]The breach of planning control alleged in the Enforcement Notices was the making of a material change of use from that of agriculture to a mixed use of agriculture and the operation of a waste recycling and transfer facility without benefit of planning permission. It recorded that:
“The term ‘operation of a waste re-cycling and transfer facility’ throughout this notice means the importation of assorted waste to the land, the storage of this waste, its sorting and processing, and the distribution and exportation of unprocessed and processed material from the land.”
[6]The Enforcement Notice was stated to take effect on 16 September 2000 unless an appeal was made beforehand. It required the defendants:(i) to cease importing waste onto the land within five days of the notice coming into effect;(ii) cease sorting and/or processing waste on the land within a similar compliance period;(iii) remove from the land all material, whether unprocessed or processed previously brought to the land in connection with the operation of the waste recycling and transfer facility within six weeks of the coming into effect of the notice;(iv) remove from the land all equipment including plant and machinery, solely used for the purpose of operating the waste recycling and transfer facility within a similar compliance period.[7]The Stop Notice referred to the issue of the Enforcement Notice, a copy of which was attached to the Stop Notice. It stated:
“2. THIS NOTICE is issued by the Council, in exercise of their power in Section 183 of the 1990 Act, because they consider that it is expedient that the activities specified in this notice should cease before the expiry of the period allowed for compliance with the requirements of the Enforcement Notice on the land described in paragraph 3 below. The Council now prohibits the carrying out of the activities specified in this notice ... 4. ACTIVITY TO WHICH THIS NOTICE RELATES. The operation of a waste recycling and transfer facility, namely the importation of assorted waste to the Land, the storage of this waste, its sorting and processing and the distribution and exportation of unprocessed and processed material from the Land. 5. WHAT YOU ARE REQUIRED TO DO. (a) Cease importing waste to the Land (b) Cease sorting and/or processing waste on the Land 6. WHEN THIS NOTICE TAKES EFFECT This notice takes effect on 14 August 2000 when all the activities specified in paragraph 5 of this notice shall cease.”
[8]The Annex to the notice stated:
“THIS NOTICE TAKES EFFECT ON THE DATE SPECIFIED IN PARAGRAPH 6. THERE IS NO RIGHT OF APPEAL TO THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS AGAINST THIS NOTICE. It is an offence to contravene a Stop Notice after ... the Stop Notice has been served on you (Section 187(1) of the 1990 Act). If you then fail to comply with the Stop Notice you will be at risk of immediate prosecution in the Magistrates’ Court ... If you wish to contest the validity of the notice, you may only do so by an application to the High Court for judicial review.”
[9]On 14 August 2000 council officers again visited the site where the defendants’ activities were continuing. Those activities form the subject of counts 1 and 2 of the indictment. On a further visit on 17 August the same activities were observed to be going on at a site adjoining the airfield and not covered by the first pair of notices. On 18 August the council served a second Enforcement Notice and a further Stop Notice of the same date. These referred to the use of the waste transfer facility on the adjoining land, but otherwise the wording of the breach of planning control and the steps to be taken by the defendants were the same as in the first set of notices, covering the same activity and the same subject matter.[10]Further visits to the site on 21 August and 22 August led to counts 3-6 of the indictment (21 August) and counts 7 and 8 of the indictment (22 August).[11]It is not in dispute that there is no machinery for appeal against a Stop Notice, the validity of which may only be challenged by way of judicial review. Badcock and the company took no such steps. However, on 15 September 2000, the day before the Enforcement Notices were to take effect pursuant to their terms, the company lodged an appeal against the Enforcement Notices under s.174 of the 1990 Act citing grounds (a),(c),(f) and (g). The appeal did not cite ground (b) (i.e. that the alleged breaches had not occurred as a matter of fact) nor ground (d) (i.e. that it was too late to take enforcement action). Nor did the grounds state that the materials imported and processed were not waste.[12]The effect of the appeal was to suspend the requirements of the Enforcement Notices pending determination of the appeal. A date was subsequently set for the appeal to be dealt with at a public enquiry in February 2001.[13]On 1 November 2000, on a visit to the site by a council officer, activities were observed to be continuing in breach of the first Stop Notice. On 8 November 2000 a further visit led to counts 11 and 12 of the indictment alleging breach of the second Stop Notice. On 14 December a further visit led to counts 13 and 14 alleging a further breach of the first Stop Notice.[14]On 15 January 2001 the defendants withdrew their appeals against the Enforcement Notices which therefore became effective.[15]On 19 January 2001 Badcock was interviewed under caution. Despite the withdrawal of the appeal, he disputed the council’s findings and conclusions and maintained that the business being carried on was the recycling of ‘surplus building materials’ and there was no processing of materials properly described as ‘waste’.[16]On further site visits by council officers on 8 February 2001 and 9 March 2001 the activities at the site were observed to be continuing with waste plant and machinery remaining on site. These formed the subject of counts 15-22 of the indictment which alleged breaches of one or other of the Enforcement Notices. In August 2001 summonses were issued and the case committed for trial.[17]In their Defence Statement dated 28 August 2001 Badcock and the company denied that the materials constituted waste or could be the subject of Stop and Enforcement Notices. They further denied that the materials were discarded maintaining that:
“They were surplus building material to be used by the Second Defendants in the course of its business which includes groundwork as a building contractor.”
[18]It is not necessary for the purposes of this appeal to set out the detail of the counts. It is sufficient to summarise by saying that counts 1-15 alleged contravention of the Stop Notices on various dates between 14 August 2000 and 14 December 2000 and counts 15-22 alleged failure to comply with the requirements of the Enforcement Notices.[19]S.285(1) of the Town and Country Planning Act 1990 provides:
“The validity of an Enforcement Notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”
[20]The grounds of appeal are set out in s.174(2) of the 1990 Act which grounds include:
“(b) that those matters [i.e. the matters stated in the notice] have not occurred; (c) ........... (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters.”
[21]The wording of the sub-section is amplified and explained in the standard notice which accompanies the notice of appeal document (FEDO4448 03/398 TSO), issued to assist the public in making an appeal.[22]In Davy –v- Spelthorne Borough Council [1984] 1 AC 262 at 272B-C Lord Fraser of Tullybelton observed, in relation to the wording of s.243(1) of the Town and Country Planning Act 1971 , the statutory predecessor of s.285(1) of the 1990 Act, that:
“... although section 243(1)(a) provides that the “validity” of an Enforcement Notice is not to be questioned except as therein provided, the word “validity” is evidently not intended to be understood in its strict sense. It is used to mean merely enforceability. That appears from a consideration of the grounds on which an appeal may be brought under Part V of the Act of 1971, which are not limited to matters affecting the validity of the notice. The relevant grounds are set out in section 88(2), part of which I have already quoted, and it is apparent that paragraph (a) (at least) goes to the merits rather than to the validity (in the strict sense) of the notice. Accordingly, the fact that the respondent is not questioning the “validity” of the notice is immaterial .... But in my opinion, the respondent’s claim for damages is not barred by section 243(1)(a). That paragraph provides that the validity of an Enforcement Notice shall not be questioned in any proceedings whatsoever “on any of the grounds on which such an appeal may be brought”
. The words “such an appeal” are a reference back from an appeal under Part V of the Act of 1971, and they mean in effect the grounds specified in section 88(2). But section 243(1)(a) does not prohibit questioning the validity of the notice on other grounds. If, for example, the respondent had alleged that the Enforcement Notice had been vitiated by fraud, because one of the appellants’ officers had been bribed to issue it, or had been served without the appellants’ authority, he would indeed have been questioning its validity, but not on any of the grounds on which an appeal may be brought under Part V.”[23]As more shortly put by Glidewell LJ in South Hams District Council –v- Halsey (C.A.) [1996] JPL at 763:
“So, if an appeal might have been brought, or has been brought, and has failed on any of the grounds of appeal contained in Section 174 then at any later stage, and particularly if there be a prosecution of the Defendant for failing to comply with the Enforcement Notice, he may not seek to show that the Enforcement Notice was invalid on any of these grounds. He is, however, still entitled to argue that the Enforcement Notice is a nullity ....”
See to similar effect the decision of the Divisional Court in Vale of White Horse District Council –v- Parker [1997] JPL 660.[24]In the light of the authorities, the council sought a ruling from the judge to the effect that by reason of s.285(1), it was not now open to the defendant, whether in respect to the Enforcement Notices or the Stop Notices (which were dependent upon and subsidiary to the Enforcement Notices),(a) to dispute as a matter of fact that the materials on the site on the dates of the alleged offences were ‘waste’ and/or that a ‘waste recycling and transfer facility’ was in operation, or(b) to advance any case that the materials were surplus building materials and not ‘waste’ and/or that the operations on site were all concerned with such building materials and accordingly that there was no operation of a ‘waste recycling and transfer facility’.[25]For the purposes of the judge’s ruling in that respect prosecuting and defence counsel agreed the following questions for

the judge to consider:

“(1) Whether, if the Defendants seek to litigate the matters raised in the Defence Statement, that would amount to ‘questioning the validity’ of the Enforcement Notices served on either of them within the meaning of Section 285(1)? (2) Whether the provisions of the said section apply to the Stop Notices issued; and if they do, if the defendants seek to litigate the matters raised in the Defence Statement, that would amount to questioning the ‘validity’ of the Enforcement Notices and/or the Stop Notices? (3) Whether the Defendants are entitled (i) to challenge the prosecution evidence that the materials on site were waste and/or (ii) to adduce evidence seeking to establish that such material or any of it was not waste, and in either event, to dispute on the facts that there has been a breach of the requirement of any of the said notices? (4) Whether the Defendants are entitled to raise by way of defence in respect of the material described in the indictment as ‘green waste’ the alleged fact that such material has been stored on land at Bovingdon Airfield for a period in excess of four years prior to the issue of the Enforcement Notices? (5) Whether the matters which the Defendants seek to raise by way of defence in these proceedings are matters which might have been raised by way of appeal under Section 174(2) of the said Act and, if so what, if any, consequences follow?”
[26]In the light of the arguments raised before us, it is important to record two matters. First, that in making his ruling the judge proceeded on the basis of the apparent agreement of the parties “that what was taking place when the first Enforcement Notice was served in August continued to take place during the periods covered by the Stop Notice, and was still taking place when the appeal was withdrawn and the Enforcement Notice came into effect, and continued thereafter until a time after the last date on the indictment”. The nature of the material then present on the site was apparent from the description of, and extensive photographs produced by, the prosecution witnesses which depicted large mixed mounds of spoil including deformed metal, lumps of concrete, plastic, old and broken timbers, window frames etc, glass, wiring and other materials, as well as separate (apparently sorted) piles of soil, timber and chipped green waste.[27]The second matter is this. Unfortunately, despite the agreement of the parties that the meaning of ‘waste’ was a matter of definition for the judge rather than the jury, he was not requested to deal with that matter, nor did he hear submissions in that respect, despite the nature of the defence sought to be raised. The appropriate definition is not therefore something which falls to be determined on this appeal. Suffice it to say, however, that it is not in dispute that a challenge as to whether materials brought onto and/or processed on the land constituted ‘waste’ is a matter in respect of which an appeal lay to an Inspector under s.174(2)(b) but has never been pursued by the defendants. Nor is it in dispute that, whatever the proper definition of ‘waste’, or the ordinary meaning of that word for the purposes of planning control, the distinction relevant is broadly that between materials intended to be discarded, disposed of or thrown away by the producer or owner as of no use to him and those intended to be retained, recycled and re-used by such producer or owner.[28]In the course of his ruling, in relation to the counts which alleged contravention of the Enforcement Notices (Counts 15-22) i.e. activities of the defendants after such notices came into effect on 15 January 2001, the judge stated that he considered that the authorities made clear that any defence taken which might have formed the basis of an appeal on the grounds set out in s.174 of the 1990 Act had to be taken by way of appeal to an Inspector and, if not taken successfully, could not be raised later in criminal proceedings so as to attack the Enforcement Notice. He stated:
“.. as I understand Section 285 and Section 174 it ... seems to me that the Crown can successfully argue that any argument that there had not been a breach of planning control by a material change of use from agriculture to agriculture and operation of a waste recycling and transfer facility and/or any argument that the activities observed and the machinery in use was not the operation of a waste recycling and transfer facility and/or any arguments that the materials brought onto site, sorted on site, processed on site, stored on site, or existing on site were not waste cannot be raised by the defence in this prosecution in relation to activities up to and including the date when the Enforcement Notice took effect. I will come back to that.”
[29]However, in relation to those counts based upon alleged breaches of the Stop Notices i.e. in respect of activities between August 2000 and 15 January 2001, the judge rejected the argument of the Crown that, because the defence could not argue that the materials were not waste in relation to the Enforcement Notices, they could similarly not advance such an argument under Counts 1-14. In this respect, he pointed out that the provision of s.285 of the 1990 Act which prevented the validity (i.e. enforceability) of an Enforcement Notice being questioned in any proceedings whatsoever was not stated to apply to a Stop Notice (in respect of which there was also no equivalent right of appeal to that provided for in s.174 in respect of Enforcement Notices). He relied also upon the decision of this court in R –v- Jenner [1983] 2 All ER 46 in analogous circumstances, in which Watkins LJ stated at 50 E-G: In the view of this Court where the person appears to answer an information or an indictment of a charge of this nature, he is entitled to attempt to establish that he is not in fact prohibited from carrying on his activities by the terms of the prohibition contained in the face of the Stop Order. To find otherwise in criminal proceedings would be to create a unique situation for a Defendant who is, if convicted, liable to be fined or imprisoned in default of payment of it. We cannot think that Parliament can have contemplated that it was, by Section 90 and 177 of that Act or otherwise, denying the usual right of a Defendant in a criminal case to defend himself other than by seeking to quash a Stop Notice. We do not think it is either appropriate or relevant to import into criminal proceedings the ways in which notices or orders of the kind previously mentioned can be challenged in civil procedures. What happens to a stop Notice once Magistrates or a Jury have found that the defendant is not subject to its prohibition is no concern of a criminal court; its concern is the guilt or otherwise of an accused person, and not with whether a notice should be valid, invalid, or be quashed.”[30]The judge rightly observed that the situation was not a happy one so far as any future explanation to the jury was concerned. It nonetheless required him to answer the questions posed as follows. Question (1) :
“Yes, if the Defendants wish to argue that in relation to events that occurred up to the date when the Enforcement Notice took effect on 15 January 2001 were not as described in the Enforcement Notice”, but, “No, if they wish to deal, for example, with the nature of material arriving on the site on any particular date alleged in a count in the indictment”
. Question (2) :
“No. The defence can litigate any issue they wish in respect of the Stop Notices”
. Question (3) :
“The defendants can challenge the prosecution evidence that the materials arriving on site after the time that the Enforcement Notices took effect were ‘waste’ and can adduce evidence on that issue.”
Question (4) :
“In respect of materials described as ‘green waste’ the defendants may not, by reason of s.285 of the 1990 Act, raise by way of defence that such material has been sorted on the land for a period in excess of four years, though in counts 2, 9 and 10 (Stop Notice counts) they may do so. Question (5) : “In relation to Counts 15-22, the arguments that (a) materials on site up to and including 15 January 2001 were not waste or (b) that the activities going on on the land prior to that date were not properly described in the Enforcement Notice are not open to the defendants because they could have been raised by way of appeal under s.174(2) of the 1990 Act, but the answer to Question 3 is repeated.”
[31]Finally, and in relation to a point raised late in the argument, the judge ruled that it is open to the defendants, while accepting in principle the validity/enforceability of the Enforcement Notices, to require the prosecution to prove that on the particular day charged in each relevant count of the indictment the defendants were in fact acting in breach of such notice.[32]The arguments raised on this appeal, shortly stated, have run as follows. For the prosecution, Mr Thompson has readily accepted in relation to the Enforcement Notices that the judge rightly interpreted and applied the authorities as to the combined effect of s.285(1) and s.174(2) of the 1990 Act, insofar as he held that the defendants are precluded from raising any matter going to the enforceability of the Enforcement Notices which could have been the subject of an appeal on one of the grounds stated in s.174(2) and in particular ground (b). Thus, it could not be denied that the matters set out as constituting the breach of planning control in the Enforcement Notices had not occurred as a matter of fact. Those matters were ‘the importation of assorted waste to the land, the storage of this waste, its sorting and distribution and exportation of unprocessed and processed material from the land’. The assertion in the Defence Statement that the materials did not constitute waste and/or that they were not discarded materials but surplus building materials to be used by the company in the course of its business, was in context an assertion that the importation and processing of waste (in the sense of discarded materials and not the defendants’ own retained materials) had not occurred as a matter of fact, and by reason of s.285(1) and s.174(2) it is not open to the defendants so to assert in relation to their activity prior to the date on which the Enforcement Notices came into effect (15 January 2001).[33]Mr Thompson submits that the judge was in error when he went on to hold that the defence were not debarred from challenging that material which was brought onto the site and/or processed after such notices came into effect was waste. He so submits for two reasons. First, because the judge acted upon the agreement of the parties that the materials and activities on site remained essentially the same throughout the period 2000/2001 and therefore the practical position was that to seek to raise an argument that the material and activities post-15 January 2001 did not constitute or relate to waste was in substance and reality to question the validity of the Enforcement Notice under s.285(1). Second, because, given that criminal charges alleging breach of Enforcement Notices can only be laid in respect of dates after such notices have taken effect, Mr Thompson submits that such a ruling defeats the intention of Parliament as set out in s.285 and may thus result in a lay bench or jury having to consider at length the very planning considerations which s.174(2) is designed to steer into the hands of an expert tribunal.[34]The first reason does not seem to us persuasive. While it is clear from the transcript of his ruling that the judge did indeed refer to the parties’ apparent agreement when dealing with the practicalities of the position, he did not suggest, and it was not the case, that any final or formal agreement existed between counsel for the purposes of the judge’s ruling, nor was there any concession by the defendants as to the facts or the nature or state of the evidence which they would seek to call. The furthest the judge felt able to go (rightly in our view) was to say that, unless the defendants could show some material change in the type of materials brought and processed on site after 15 January 2001, the practical effect would be to inhibit any realistic argument that the process taking place subsequently was not a breach of the Enforcement Notice. He also made clear that his general ruling could not in any event preclude dispute as to what was happening on any particular date identified in the counts of the indictment in respect of which the prosecution carried the burden of proof, as in any ordinary criminal case.[35]As to the second reason, it is of course the case that s.285 is in principle designed to prevent the exploration before lay tribunals of matters relating to planning control which are more appropriately explored before a tribunal versed in the planning considerations relevant to the various heads of appeal afforded by s.174(2). It is not to be supposed, however, that it was designed to impinge on the criminal process to such an extent as to preclude a defence or reverse the burden of proof in relation to the factual ingredients of an alleged failure to comply with the requirements of an Enforcement Notice once it has been issued .[36]Mr Thompson also submits that the judge erred in holding that the provisions of s.285 did not apply equally in respect of the breaches of the Stop Notices served. He accepts that s.285 is not on the face of it concerned with Stop Notices, but he invites the court to approach the matter on the practical basis that, if a defendant is entitled to raise in defence to a count alleging breach of a Stop Notice precisely those matters which he is precluded from raising in relation to a failure to comply with an Enforcement Notice to which it is parasitic, that is to defeat the obvious intention of Parliament that such matters should not be dealt with by a jury or by lay justices. He submits that the case of Jenner is of no assistance in this respect because the court was not asked to consider s.243(1)(a) of the Town and Country Planning Act 1971 , the predecessor to s.285 of the 1990 Act, the defendants in Jenner having sought to rely on a statutory defence not relevant to the issue in this case. Like the judge, we find ourselves unable to accept this submission. We consider the judge was correct for the reasons he gave. To apply s.285 to the case of Stop Notices would be well beyond the limit of what is permissible by way of ‘purposive’ construction.[37]In relation to the judge’s answer to question (1), Mr Karas for the defendants has attacked the judge’s reasoning and approach, and has sought to avoid the effect of the authorities as to the combined effect of s.285 and s.174(2), by arguing that, in seeking to challenge the council’s interpretation of ‘waste’ the defendants are not seeking to question the validity or enforceability of the Enforcement Notices but simply raising an issue as to their ambit or meaning i.e. their proper construction. He submits that there is nothing in s.285 which indicates that, when bringing a prosecution under s.179, the prosecuting authority does not have the onus of establishing facts which amount to a breach of the notice properly construed . Thus it must prove that the defendant has carried on an activity required by the notice to cease and, that being so, the defence must be at liberty to adduce evidence to show that they have not carried on such an activity. This includes challenging the council’s definition of ‘waste’. Mr Karas further argues that, in this case, it must be open to the defendants to contend and/or call evidence that the materials collected and processed on the defendants’ land are not waste, but building materials surplus to the defendants’ own business and retained by them in that connection. In this respect, he acknowledges that the definition of waste is a matter for the judge, as to which he was not asked to make any ruling, but submits that it would be for the jury to decide, in the light of the judge’s ruling as to the proper definition, whether or not the offence charged on each count were proved in the light of the evidence called.[38]We consider that, given the way in which the matter was put before him, the judge was correct in the answers he gave to the questions he was asked. We start from the position that the offences of failing to comply with the requirements of an Enforcement Notice and of acting in contravention of a Stop Notice are criminal offences, the ingredients of which must be proved in the same way as any other, with the burden of proof resting on the prosecution in respect of all the factual and legal ingredients of the offence, save to the extent that statute may provide to the contrary. Such contrary statutory provision has only been made in respect of challenges to the validity of Enforcement Notices. The effect of the authorities referred to at paragraphs 22 and 23 above is that in any criminal proceedings the validity, in the sense of the enforceability, of an Enforcement Notice may not be questioned on the grounds, inter alia, that at the date of issue of the notice the breach of planning control, in this case, the operation of a waste recycling and transfer facility, had not in fact occurred. Again, in this case, that means (by reason of the definition contained in the notice) it cannot be challenged that, as at the date of the notice, the land was being used for the importation of assorted waste, the storage of such waste, its sorting and processing and the distribution and exportation of unprocessed and processed material from the land. However, that is the full extent of the limitation placed on the defence. Further, it is a limitation only in respect of the counts relating to the Enforcement Notice and not in respect of the Stop Notice counts.[39]Subject to that limitation, the defendant in this case may admit or challenge the evidence of the prosecution without constraint, in the light of such definition of waste as the judge decides is appropriate.[40]Thus the essential task of the prosecution will be to prove in respect of each count:(1) the service and effect of the Notice;(2) the acts complained of;(3) that the acts constitute a breach of the Notice. This will involve the jury in considering and applying the ambit and meaning of the word 'waste’ as contained in the Notices. However, that meaning is not a matter of fact for the jury to decide. It is a question of law for the judge.[41]In order to enable the prosecution to proceed smoothly, it will be necessary for the judge, prior to the prosecution opening, to receive submissions and rule upon the appropriate definition of waste in the context of this case. In Planning Policy Guidance 10 Annex C (C3) a copy of which has been placed before us, the guidance given is that ‘waste’ should be given its ordinary and natural meaning for the purposes of interpretation of the Town and Country Planning Act 1990 as amended. In that respect, the judge will no doubt find useful the definition contained in s.30 of the Control of Pollution Act 1974 and the identical wording of s.75 of the Environmental Protection Act 1990 to the effect that:
“(2) “Waste” includes – (a) any substance which constitutes a scrap material or any effluent or other unwanted surplus substance arising from the application of any process; and (b) any substance or article which requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled ... (3) Anything which is discarded or otherwise dealt with as if it were waste shall be presumed to be waste unless the contrary is proved.”
Needless to say, a reference to the presumption/burden of proof in sub-section (3) should be avoided. It is the notion of something ‘discarded’ which is of key importance: see the observations of Butler-Sloss LJ in Cheshire CC –v- Armstrongs Transport (Wigan) Limited [1995] ENV LR 62 at 65:
“It has to be that which is disposed of, discarded, got rid of, not needed any more, by the person who is in the process of discarding it or disposing of it. It is to be of no further use to that person who has probably produced it but is certainly discarding the material.”
[42]That case made clear that the notion of ‘discarded’ material does not include material removed by a contractor from a site of which he has ownership or control specifically for the purpose of processing, return and re-use in operations upon the contractor’s site. It was a case of somewhat special facts in relation to concrete and rubble amenable to crushing and re-use for infill in the footings of new houses. It was not of course concerned with the wide variety of objects and materials of the type described in paragraph 26 above, many of which would be unamenable to re-use in that way.[43]Once the judge has ruled upon the proper definition of the word waste for the purpose of his eventual direction to the jury, that will enable the prosecution to open the case, indicating the history of the matter, the meaning of ‘waste’ for the purposes of the Notices, and describing and calling witnesses as to the type and make-up of the waste(a) which caused the issue of the Notices and(b) which was observed to arrive thereafter. The prosecution will be at liberty to make clear that, so far as the Enforcement Notices were concerned, it is not open to the defendants to challenge that, prior to their issue, the land was in use as a waste recycling and transfer facility, but that, odd as it may seem, they are not so prevented in respect of a failure to comply with a ‘Stop Notice. Issues as to the materials in fact being dealt with on site and the question of whether or not such materials (or most of them) are in fact discarded materials in the sense above referred to, will have to be fought upon the merits, by reference to the matters observed by the witnesses on the occasion of their various visits to the site, the photographs and any proper inferences to be drawn from such evidence and/or any evidence called for the defence.[44]It has been made clear to us on this appeal that the defendants are no longer prepared to make any concession that the activity taking place when the first Enforcement Notice was served simply continued throughout, and they will put the prosecution to proof of each offence by exploration of the detail of each occasion the subject of a count in the indictment. Thus, depending upon the nature of the defence as eventually deployed, it may well be that the judge will need to deliver a direction to the jury which involves apprising them of the anomaly of the defendants’ position as between the Stop Notice and Enforcement Notice offences insofar as there is an attempt to challenge the fact that, prior to the service of the Enforcement Notices, the defendants were involved in waste recycling. No doubt he will receive submissions upon the appropriate form of direction before doing so. However, that is not a matter upon which we are in a position to assist in this judgment save for such guidance as the judge may derive from our remarks above.[45]For the reasons stated, we do not consider that any error has been demonstrated in the reasoning or ruling of the judge and therefore the appeal and cross-appeal are dismissed.

Cited in 1 later judgment