Recycled Materials Supplies Ltd, R v [2017] EWCA Crim 58

[2017] EWCA Crim 58Case No 201503265C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HH JUDGE SHANKS
T20141779
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/02/2017
Before
LORD JUSTICE GROSSMR JUSTICE STUART-SMITHRECORDER OF MANCHESTER,HIS HONOUR JUDGE STOCKDALE QC,(SITTING AS A JUDGE OF THE CACD)
Between
RRespondentRECYCLED MATERIALS SUPPLIES LTDAppellant
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Stephen Tromans QC and Rebecca Foulkes (instructed by Daniel Fenwick, Director of Legal & Governance, London Borough of Newham) for RespondentSamantha Riggs (instructed by Dr Anna Willetts, Slater and Gordon UK LLP) for AppellantHearing Hearing date : 18 January, 2017
JudgmentAs Approved by the CourtLord Justice Gross :

Introduction

[1]This is the judgment of the Court to which all members have contributed.[2]On 10 June 2015 the Appellant [“RMS”] was convicted before the Crown Court sitting at Snaresbrook on its own plea of guilty to two counts of failing to comply with the terms of an Environmental Permit Condition, contrary to Regulation 38(2) of the Environmental Permitting (England and Wales) Regulations 2010 [“the EPR”]. RMS entered those pleas in the light of rulings on the law given by HHJ Shanks on 5 and 10 June 2015. RMS appeals to this Court against its conviction with the leave of the full Court, judgment on the renewed application for leave being given on 22 July 2016: [2016] EWCA Crim 2016.[3]The underlying facts may be shortly stated. RMS carries on business at a substantial and permanent site at Sunshine Wharf in East London. It specialises in the crushing and recovery of construction and demolition waste to produce aggregates, which are then sold back to the construction industry. Amongst the materials brought to Sunshine Wharf are bricks, tiles or concrete (typically from construction and demolition sites) for crushing, grinding, screening, storage and sale as aggregates. However, there are many other materials that were brought to Sunshine Wharf for processing, storage and onward sale as aggregates: amongst other materials, the Environment Agency (of which more later) permitted RMS to recover stones, track ballast, road base and planings. While it is possible that individual lorry-loads for processing may comprise nothing other than bricks, tiles or concrete, there is no reason to suppose that bricks, tiles or concrete are always, typically or usually segregated from all other materials before or when being brought to the site. And, even if individual loads arrive at the site comprising nothing other than bricks, tiles or concrete, there is no reason to suppose that they remain segregated from all other materials before and when being processed.[4]The business carries obvious risks of pollution and can only be carried out with the benefit of Environmental Permits [“EPs”]. In this case two EPs had been issued to RMS. One was issued by the Respondent, the London Borough of Newham [“LBN”]; the other was issued by the Environment Agency [“the EA”].[5]LBN’s EP was issued on 1 February 2014. It stated that it authorised RMS to operate three specified items of “mobile plant”, namely two crushers and one screener.

(d) of Part B in Part 2 of Schedule 1 to the EPR, namely:

“(c) The crushing, grinding or other size reduction with machinery designed for that purpose of bricks, tiles or concrete.

(c) ”

The permission was subject to a number of conditions, including Condition 6.3 which stated:
“All vehicles transporting materials under 75mm (including wastes) or finished products shall be totally enclosed as soon as possible after loading and before leaving the installation.”
Other conditions were appropriate to plant that was to be moved from one site to another. Condition 2.1 required RMS, before the mobile plant was operated, to notify the regulator of the site where the mobile plant was to be operated and the regulator who issued the permit where and when the mobile plant was expected to start operating. Appendices 1 and 2 to the EP were forms for use by RMS whenever the mobile plant was to be moved to a new address, and would notify when the mobile plant would start working at that address and how long it was intended to remain there.[6]On two occasions in January and February 2014 lorries were seen on the public highway near Sunshine Wharf having left the site laden with aggregates when the lorry was not totally enclosed. The sheeting on one lorry was ripped; the other lorry was unsheeted. This led LBN to bring the prosecution which included the two charges that are now the subject of this appeal. The charges alleged breach of the conditions specified by the LBN EP. There were other charges in respect of which no evidence was adduced: we need say no more about them.[7]RMS was sentenced on each of the two counts to a fine of £2,250. Its conviction on these two counts put it in breach of a two year conditional discharge for similar offences, in respect of which the Court imposed an additional fine. Nothing turns on the offence in respect of which the additional fine was imposed and we say no more about it. There is no separate appeal against sentence if RMS’s appeal against conviction is unsuccessful.[8]We shall look at the relevant statutory provisions in some detail later. For present purposes it is sufficient to note that, as it seems to us, the statutory regime reflects in general terms a distinction that exists on the ground and which has been developed since the passing of the Environmental Protection Act 1990. Some businesses operate from established premises, with the materials being brought to the premises from elsewhere for processing. Typically these will be large-scale operations involving plant and machinery that is permanently installed at the premises. In addition to these permanent sites, it is common for processing plant and machinery to be transported to a construction or demolition site and used there for a limited period in order to process the materials generated by the construction or demolition, as the case may be. For that purpose, the plant and machinery must be “mobile”, in the sense of being capable of being transported to and from the site, though it may still be very substantial. Not all plant and machinery used in such processes is mobile – it may be installed at a site in such a way that it cannot be moved at all or cannot be moved to another site. The two crushers and the screener identified in the LBN EP could in theory have been moved; but they were used by RMS at Sunshine Wharf at all material times. They were integral to the business being carried on at Sunshine Wharf and were in that sense permanently installed there with no intention to move them while Sunshine Wharf remained operational.[9]The precise demarcation between the regulatory responsibilities of the EA and the Local Authority respectively lies at the heart of this appeal. The Environmental Protection Act 1990 [“the EPA”] draws a broad distinction based upon the size and seriousness of the potential risks of pollution. In general, regulation of the more serious and potentially more harmful activities is placed in the hands of the EA whilst regulation at a lower level for less complex or less polluting activities falls upon the Local Authority. Since the passing of the EPA various attempts have been made to streamline the permissive system and to make it comprehensible. The attempts have been singularly unsuccessful. The Judge below described the provisions that he had to interpret and we have to review as a nightmare. We agree. Although both parties offered an historical tour d’horizon of the development of the legislative provisions since 1990, Mr Tromans QC for LBN correctly (in our judgment) accepted that, if the answer to the current appeal is to be found in the current provisions, the historical hinterland will not change the outcome.[10]We have referred to the LBN EP at [5] above. The EA EP in force at the relevant time was issued on 15 January 2014. It stated that it authorised RMS to operate waste operations at Sunshine Wharf subject to the conditions set out in the permit. Those conditions included that no more than 75,000 tonnes of waste should be treated per year. A site plan identified the position of two crushers and a screener. Among the types of waste that the site was authorised to accept were “concrete, bricks, tiles and ceramics” as well as many other types of materials from numerous different sources, including many that would not be within the ambit of the authorisation granted by the LBN EP. There is no reference in the EA EP to moving plant to other sites, equivalent to Condition 2.1 of the LBN EP. In that respect the EA EP was consistent with its stated purpose of authorising the waste operations at Sunshine Wharf rather than particular items of plant; and, in doing so, it incorporated standard rules for the treatment of waste to produce soil, soil substitutes and aggregate promulgated by the EA as provided for by Regulation 26(1) of the EPR.[11]The difference in scale contemplated by the respective EPs is indicated by different limits on storage: i) The LBN EP permitted storage at the place where crushing is carried out of any waste bricks, tiles or concrete which was intended to be crushed if the total quantity of waste treated over any period of 1 hour did not exceed 20 tonnes and the total quantity of waste stored at any one time did not exceed 200 tonnes; and the total quantity of waste storage for screening over any 3-year period was not to exceed 5,000 tonnes; ii) The EA EP permitted storage of certain specified wastes limited to 10,000 tonnes in total at any one time and others not included in those specified categories limited to 40,000 tonnes in total at any one time.[12]RMS’s Grounds of Appeal were refined for the purposes of the hearing and can be summarised for the purposes of this introduction as follows: i) There cannot be joint regulation of the same activity by the EA and the Local Authority. The EA EP regulated the activities being carried out at Sunshine Wharf and therefore the LBN’s EP is invalid; ii) The activities at Sunshine Wharf involved processing more than just tiles, bricks and concrete. LBN therefore had no jurisdiction to issue its EP or to seek to impose conditions on those activities; iii) Condition 6.3 does not reasonably relate to the purpose for which the LBN permit was granted and is therefore ultra vires and invalid; iv) If, which RMS disputes, its plant and machinery at Sunshine Wharf was mobile plant, it was waste mobile plant within the definition of Regulation 2 of the EPR and therefore regulated by the EA pursuant to Regulation 32 of the EPR, and was not within the jurisdiction of the Local Authority.[13]In order to provide the legal context for these submissions, it is necessary to look at the relevant statutory provisions in some detail. We shall then refer to the relevant terms of the two permits briefly before returning to consider RMS’s grounds of appeal and submissions and LBN’s submissions in response.

The Legal Framework

[14]All references to the EPR are to the Regulations in force at the relevant time. They have since been superseded.[15]The manufacture of aggregates is a “recovery” operation within the meaning of the Waste Framework Directive 2008/98/EC (Waste Framework Directive).[16]For the purposes and within the meaning of the EPR: i) Under Regulation 2, the recovery or disposal of waste is, by definition, a “waste operation”. ii) Under Regulation 8, a “regulated facility” is defined to include a “waste operation”. “Waste operations” are included as a free-standing or stand-alone category under Regulation 8: their inclusion as regulated facilities is not dependent on or achieved by reference to Part A or Part B installations or activities to which we refer below; iii) Under regulation 8, “mobile plant” is included as a separate category of “regulated facility”; iv) Regulation 8(4) provides that a regulated facility of the class defined as “waste operation” may be carried on as part of the operation of a regulated facility of another class. There is no equivalent provision permitting a regulated facility of the class defined as “mobile plant” to be carried on as part of the operation of a regulated facility of another class; v) The business of manufacturing aggregates being carried on at Sunshine Wharf is a “recovery” operation. It is therefore a “waste operation” and is for that reason a “regulated facility”.[17]A person must not operate a regulated facility, except under and to the extent authorised by an environmental permit: Regulation 12(1). The phrase “operate a regulated facility” is defined in Regulation 7 in terms which differentiate between operating mobile plant and carrying on a waste operation. Since RMS carries on the waste operation at Sunshine Wharf, it, by definition, thereby operates the regulated facility.[18]Some further definitions at this stage may help provide clarity later: i) “Installation” in the EPR means “(a) a stationary technical unit where one or more activities are carried on, and (b) any other location on the same site where any other directly associated activities are carried on”: Part 1 of Schedule 1, paragraph 1; ii) The business being carried on at Sunshine Wharf is not an “installation”; iii) Installations are sub-divided by Part 1 of Schedule 1, paragraph 1 into “Part A installations” (which in turn are subdivided into Part A(1) installations and Part A(2) installations) and Part B installations: a) “Part A(1) installation” means “an installation where a Part A(1) activity is carried on either alone or in combination with any or all of the following –(a) an A(2) activity;(b) a Part B activity; …”: b) “Part A(2) installation” means “an installation where a Part A(2) activity is carried on either alone or in combination with any or all of the following – (a) a Part B activity; ….” c) “Part B installation means (subject to exceptions which it is not necessary to set out here) “an installation, not being a Part A installation, where a Part B activity is carried on ….” It appears from these definitions that Part A activities and Part B activities may be carried on at the same installation. Where that happens, the installation will be a Part A installation. It is only where Part B activities are carried on and no Part A activities are carried on at the installation that the installation will be a Part B installation. iv) An “activity” means an activity listed in Part 2 of Schedule 1 and may be a Part A activity or a Part B activity. “Part A activity” and “Part B activity” are defined in Part 1 of Schedule 1, paragraph 1: a) Part A Activities are sub-divided into those that are a “Part A(1) Activity” and those that are a “Part A(2) Activity” which are respectively defined as activities falling within Part A(1) or A(2) of any Section in Part 2 of Schedule 1: Part 1 of Schedule 1, paragraph 1; b) “Part B Activity” is defined as meaning “an activity falling within Part B of any Section in Part 2 of [Schedule 1]: Part 1 of Schedule 1, paragraph 1; c) Part A activities are given a form of precedence over Part B activities by paragraphs 2(2) and 2(3) of Part 1 of Schedule 1, which provide in materially identical terms that “where, in Part 2 of [Schedule 1] an activity falls within a description in Part [A(1) or A(2) as the case may be] and a description in Part B that activity must be regarded as falling only within the description in Part [A(1) or A(2) as the case may be]”. The EPR therefore clearly contemplate that a given activity may fall within the definitions of both Part A activity and Part B activity and that, when it does, it shall be regarded as a Part A activity and not a Part B activity. v) Part 2 of Schedule 1 is divided into six Chapters covering various broad categories of activity. Each chapter lists Part A and Part B activities. Chapter 3 covers mineral activities. Section 3.5 lists under Part B:
“(a) Unless falling within Part A(1) or Part A(2) of any Section, the crushing, grinding or other size reduction, other than the cutting of stone, or the grading, screening or heating of any designated mineral or mineral product except where the operation of the activity is unlikely to result in the release into the air of particulate matter. (b) … (c) The crushing, grinding or other size reduction, with machinery designed for that purpose, of bricks, tiles or concrete. (d) Screening the product of any activity described in paragraph (c). (e) Coating road stone with tar or bitumen. (f) … (g) …” vi) Regulation 2 defines “mobile plant” to mean “Part B mobile plant” or “waste mobile plant”, which in turn are defined as follows: a) “Part B mobile plant” is “plant that is designed to move or be moved whether on roads or other land and that is used to carry on a Part B activity”
Part 1 of Schedule 1, paragraph 1; and b) “Waste mobile plant” is “plant that is (a) designed to move or be moved whether on roads or other land, (b) used to carry on a waste operation and (c) not an installation or Part B mobile plant”: Regulation 2.[19]The EPR distinguish between different sorts of operations both by the division between Part A and Part B activities and also, for example, by the varying definition of “emission” in Regulation 2 which, in relation to Part B mobile plant means “the direct release of substances or heat from the mobile plant into the air” and in relation to a waste operation means “the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources related to the operation into the air, water or land”.[20]Regulation 14(1) states that “an environmental permit must specify (a) the regulated facility whose operation it authorises; …”. Regulation 14(4) states that “an environmental permit must include a map, plan or other description of the site showing the geographical extent of the site of the regulated facility.” Regulation 14(6) provides that Regulation 14(4) does not apply to an EP authorising the operation of mobile plant. We note in passing that, despite the logical exception provided by Regulation 14(6), the LBN EP authorising the operation of the specified mobile plant also includes a plan of the Sunshine Wharf site. The unnecessary inclusion of a plan in an EP does not, in our judgment, convert what would otherwise be an EP for mobile plant into a different form of EP.[21]Regulation 16 contemplates mobile plant operating on the site of another regulated facility and there being a conflict of permit conditions, in the following terms:
“If— (a) an environmental permit (“permit A”) authorises the operation of mobile plant on the site of another regulated facility the operation of which is authorised under a separate environmental permit (“permit B”); and (b) there is an inconsistency between the requirements imposed by permit A and those imposed by permit B, the requirements imposed by permit B prevail.” the requirements imposed by permit B prevail.”
[22]Regulation 17 allows the regulator to authorise, under a single EP, the operation by the same operator of more than one mobile plant and (subject to immaterial provisos) more than one regulated facility on the same site.[23]The central question in this appeal is whether it was any part of LBN’s proper functions under the EPR to regulate the business that was being carried on at Sunshine Wharf. The allocation of functions (which includes the issuing of EPs) as between the EA and local authorities such as LBN is the subject of Regulations 32 and 33 of EPR. With suitable substitutions to reflect the fact that RMS carries on business in England, Regulation 32 provides:
“(1) Subject to regulation 33 …, functions in relation to a regulated facility, other than a regulated facility mentioned in paragraph (2), are exercisable by the [Environment Agency]. (1A) Subject to regulation 38(2A) if the principal place of business of an operator of mobile plant, other than mobile plant mentioned in paragraph (2), is in England …, functions in relation to that regulated facility are exercisable by the [Environment Agency]. … (2) Functions in relation to a regulated facility of the following description or class are exercisable by the local authority in whose area the regulated facility is or will be operated— (a) a Part A(2) installation; (b) a Part B installation or Part B mobile plant, but not in respect of any of the following regulated facilities carried on at the installation or by means of mobile plant— (i) a waste operation (unless it is a Part B activity), (ii) … (iii) … (iv) … (c) … (d) … . (3) If the principal place of business of the operator of Part B mobile plant is in England …, functions in relation to that regulated facility are exercisable by the local authority in whose area the place of business is. …”
[24]Regulation 33 provides (again with suitable substitutions to reflect the fact that RMS carries on business in England):
“(1) [The Secretary of State] may direct— (a) the [Environment Agency] to exercise such [functions which are exercisable by the Local Authority by virtue of regulation 32 or paragraph 2 of Schedule 2] as are, and for such period as is, specified in the direction; or (b) a local authority to exercise such [functions which are exercisable by the Environment Agency by virtue of regulation 32 or paragraph 2 of Schedule 2] as are, and for such period as is, specified in the direction. (2) … (3) … (4) A direction under paragraph (1)(b) may only be made in respect of— (a) an installation, but not in respect of a mining waste operation carried on at an installation; or (b) mobile plant. …”
[25]It is convenient to summarise the effect of these regulations at this stage: i) The effect of each of Regulations 32(1) and 32(1A) is that the local authority has functions to discharge in relation to regulated facilities of the descriptions set out in Regulation 32(2). Otherwise, subject to Regulation 33, the functions are to be discharged by the EA; ii) The overall effect of Regulation 32 is that the local authority is responsible for Part A(2) activities and Part B activities. The EA is responsible for Part A(1) activities and for waste operations unless the waste operation is a Part B activity. The phrase “a waste operation (unless it is a Part B activity)” in Regulation 32(2)(b)(i) indicates that a waste operation may also be a Part B activity; iii) As the business at Sunshine Wharf is not an installation, Regulation 32(2)(a) and the reference to a Part B installation in Regulation 32(2)(b) are inapplicable and do not confer any functions on LBN; iv) There is an apparent contradiction between Regulation 32(3) and Regulation 32(2)(b) because(a) Regulation 32(3) says that the functions in relation to a regulated facility involving the operation of Part B mobile plant regulated facility are exercisable (without qualification) by the local authority, whereas(b) Regulation 32(2)(b) the functions in relation to a regulated facility involving the operation of Part B mobile plant are exercisable by the local authority but not in respect of a regulated facility carried on by means of mobile plant at a waste operation (unless it is a part B activity); v) However this apparent contradiction is to be resolved, the functions in relation to a waste operation (such as the business carried out at Sunshine Wharf) are not conferred on the Local Authority by Regulation 32 unless the activity is a Part B activity; vi) Conversely, if an activity such as the waste operation at Sunshine Wharf were to be a Part B activity, the EA would not have authority to exercise regulatory functions over it. This result is achieved by the tortuous language of Regulation 32(1), which excludes from the EA’s powers regulated facilities mentioned in Regulation 32(2), and Regulation 32(2) which reserves waste operations using mobile plant back to the EA “unless it is a Part B activity”.[26]The significance of carrying on a Part B activity under Regulation 32 reflects the distinction in the definitions of “Part B mobile plant” and “waste mobile plant” to which we have referred at [18.vi)] above. The two types of mobile plant are mutually exclusive: “waste mobile plant” is plant that is used to carry on a waste operation and which is not Part B mobile plant; and the distinguishing and defining feature of Part B mobile plant is that it is used to carry on a Part B activity.[27]Turning to Regulation 33, there is no evidence to suggest that the Secretary of State has made a relevant direction affecting the activities undertaken at Sunshine Wharf. In our judgment, Regulation 33 does not suggest that there may be dual regulation by the EA and a local authority of the same activity. What it contemplates and authorises is that a function which would otherwise be exercised by one regulator will instead (but not in addition) be exercised by the other.[28]The EPR to which we have referred are by no means the whole of the regulatory framework governing the carrying out of activities that may give rise to pollution. In particular, there is a complicated series of exemptions, which has changed with time, and to which it is not necessary for us to refer further. What is apparent from the survey that we have set out above is that the power of local authorities to exercise the function of issuing EPs is to be found in the EPR and is limited. Specifically, it is limited as set out in Regulation 32. Furthermore, the provisions of the EPR draw a distinction between authorising specific activities (such as Part B or Part A activities, or the use of mobile plant) and the carrying on of processes (such as the recovery of waste by a waste operation) or carrying on an installation (as defined): see Regulation 8.

The Environmental Permits

[29]On its face, the LBN EP purports to authorise the operation of mobile plant to carry out the crushing and screening listed in Section 3.5(c) and (d) of Part B in Part 2 of Schedule 1, which we have set out at [5] above, together with the recovery and storage of associated waste. Such a permit would have been unduly restrictive and could not have enabled RMS to carry out the extensive waste operation that they were carrying out at Sunshine Wharf.[30]To enable RMS to carry out the operation that they did at Sunshine Wharf they needed the EA EP. It was more expansive in authorising RMS to carry out waste operations (rather than simply operating the three machines for limited purposes with storage and recovery of associated waste) and in permitting the processing of very much larger quantities and a much greater variety of materials than was allowed by the LBN EP. The Grounds of Appeal in Detail Ground 1: There cannot be joint regulation of the same activity by the EA and the Local Authority. The EA EP regulated the activities being carried out at Sunshine Wharf and therefore the LBN’s EP is invalid. Ground 2: the activities at Sunshine Wharf involved processing more than just tiles, bricks and concrete. LBN therefore had no jurisdiction to issue its EP or to seek to impose conditions on those activities.

The Grounds of Appeal in Detail

[31]Regulation 16 of the EPR shows that it is possible to have a site where there is an EP authorising the operation of mobile plant on the site of another regulated facility, the operation of which is authorised under a separate EP. Such a case could arise where mobile plant is deployed, for example, to carry out Part B activities on a site which already has an EA EP in force. To that extent, we do not accept that it is never possible for there to be a set of circumstances which are the subject of two EPs, one issued by the EA and one by the local authority. However, that conclusion does not determine whether LBN had any proper function to play in respect of the operations being carried out at Sunshine Wharf. Moreover, duality of regulation, let alone where the regulators overlap in respect of the same activity at the same time is plainly not to be encouraged; for our part, we would only accede to a solution which embodied dual regulation in the present case if driven to it by clear and unambiguous statutory language.[32]What is contemplated by Regulation 16 is, typically, where mobile plant in respect of which an EP (“Permit A”) has been issued is deployed as such to a regulated facility which is already the subject of another EP (“Permit B”). The first thing to note is that the applicability of Permit A on and after that deployment depends upon whether what is being done by the plant is what was being authorised by that Permit. Specifically, if what is being done by the plant goes beyond the limited activities authorised by Permit A, the plant cannot lawfully be operated merely in reliance on that permit. If that is the case, it will be necessary to rely upon the terms of permit B. Second, Regulation 16 does not require dual regulation: it merely says that if there were to be an inconsistency between the requirements imposed by Permit A and those imposed by Permit B, the requirements imposed by Permit B will prevail.[33]We have drawn attention to the tortuous language of Regulation 32 already. Put shortly, it was for the EA to exercise the function of issuing EPs in respect of the Sunshine Wharf waste operation regulated facility unless the facility falls within the ambit of Regulation 32(2). Since Sunshine Wharf is not an installation and is a waste operation, LBN as local authority only has authority to exercise the function of issuing an EP for what is going on at Sunshine Wharf if the regulated facility was of the description “Part B mobile plant” which was (by the tortuous route of double exceptions) carrying on “a Part B activity.”[34]On the information available to this Court we find it quite impossible to view what was being done at Sunshine Wharf as a Part B activity. We accept that materials that fall within the description of Section 3.5 (c) and (d) passed through Sunshine Wharf; but the description of the business that we have summarised above makes it quite unreal to suggest that they were ever a separate or discrete operation. The reality is and has always been that Sunshine Wharf was a massive operation recovering waste of multiple types without distinction but which will have included bricks, tiles or concrete. When pressed in the course of oral submissions, Mr Tromans QC was driven to submit that if a lorry-load of bricks tiles or concrete were processed in segregation from other materials the site should be regarded as carrying on a Part B activity but if the next lorry-load was either entirely or substantially comprised of other materials the site should be regarded as not carrying on a Part B activity. The practical impossibility of a regime that is dependent upon establishing what the plant was crushing at any given time is highlighted by LBN’s acceptance that “the reality is that the crusher and screener dealing with demolition waste will almost certainly include some other materials.”[35]We therefore conclude that the machinery in question, when being used as an integral and effectively permanent part of the recovery of waste at Sunshine Wharf was not being used on a Part B activity and was therefore not subject to the authority of LBN. Given the nature of the operation being carried out at Sunshine Wharf, it was the EA that had authority under Regulation 32(1) to exercise the regulatory functions including the issuing of its EP for the waste operation. The fact that LBN had issued the permit would have become relevant if the plant had in fact been used for what could substantially and realistically be called a Part B activity. On the facts as made known to this Court, that seems unlikely to happen unless the machinery is moved from the present operation and deployed elsewhere.[36]For these reasons our conclusions on Grounds 1 and 2 are that: i) LBN had no jurisdiction to issue its EP or to seek to impose the conditions it did while the plant in question was being operated as an integral and effectively permanent part of the waste operation at Sunshine Wharf because the activities at Sunshine Wharf involved processing more than just tiles, bricks and concrete and were not Part B activities; ii) On the facts as we have summarised them, there was no scope for joint regulation of the activities being carried out by RMS at Sunshine Wharf, including the use of the three items of plant that were the specified subjects of the LBN EP. The regulator empowered to exercise the regulatory functions was the EA and not the LBN;[37]We therefore allow the appeal on Grounds 1 and 2 Ground 4: If, which RMS disputes, its plant and machinery at Sunshine Wharf was mobile plant, it was waste mobile plant within the definition of Regulation 2 of the EPR and therefore regulated by the EA pursuant to Regulation 32 of the EPR, and was not within the jurisdiction of the Local Authority.[38]The definitions of “Part B mobile plant” and “waste mobile plant” are set out at [18.vi)] above. On the assumption that the plant was mobile plant at all, it was not being used to carry out a Part B activity but was being used to carry out a waste operation. It would therefore fall to be categorised as “waste mobile plant.” It is therefore not within the sphere of LBN’s authority under Regulation 32(2)(b).[39]We therefore allow the appeal on Ground 4 too. Ground 3: Condition 6.3 does not reasonably relate to the purpose for which the LBN permit was granted and is therefore ultra vires and invalid.[40]Ground 3 does not arise unless the LBN EP governed the activities being carried on at Sunshine Wharf which, for the reasons set out above, it did not. In those circumstances, although we heard argument on it, we consider it to be neither necessary nor desirable that we should deal (obiter) with the potentially difficult and far reaching questions that arise under Ground 3.[41]It follows that it is unnecessary to consider Mr Tromans QC’s submission, relying on R v Wicks [1998] AC 92, that even if Ground 3 was otherwise well-founded, this Ground could not be raised as a defence in a criminal trial. Instead and if aggrieved by Condition 6.3, RMS should have proceeded either by way of judicial review or by way of the statutory appeal furnished by Regulation 31(2)(b) of the EPR. That Regulation provides (broadly) that a person aggrieved by “a decision to impose an environmental permit condition” may appeal to the appropriate authority. If confined to Ground 3 – predicated as it is on LBN having jurisdiction to issue its EP - there was, at least at first blush, some force in this submission but further than that it would not be right to go.[42]For completeness, it was not entirely clear whether Mr Tromans QC’s submission, based on Wicks, was intended to extend to Grounds 1, 2 and 4. If so, we are unable to accept it. The fundamental issue on these Grounds is whether the LBN had jurisdiction to issue the permit; our conclusion is that it did not. On that footing – and even though there may well have been scope for a challenge to the LBN EP by way of judicial review – we are not persuaded that anything said in Wicksprecludes these Grounds being raised as defences in a criminal trial.

Conclusion

[43]The appeal is allowed for the reasons set out above.