Skipaway Ltd v The Environment Agency [2006] EWHC 983 (Admin)

[2006] EWHC 983 (Admin)

Case No CO/1314/2005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 5 th May 2006

Before

MR JUSTICE NEWMAN

MR JUSTICE STANLEY BURNTON

Between

SKIPAWAY LTDAppellant

THE ENVIRONMENT AGENCYRespondent

Gregory Jones (instructed by Simmons & Simmons) for Appellant

Gary Lucie (instructed by Gordon Starks, Legal and Estates Department of the Environment Agency) for Respondent

Hearing Hearing date: 24 th March 2006

Judgment

Introduction

[1]This is an appeal by way of Case Stated from the decision of the Sittingbourne Magistrates’ Court convicting the Appellant of 6 offences under section 33(6) of the Environmental Protection Act 1990. The justices imposed a fine of £3,000 for each offence and ordered the Appellant to pay the Respondent’s costs.

[2]All of the offences related to alleged breaches by the Appellant of the terms of its waste management licence (“the licence”) relating to its waste transfer plant known as the Recycling Centre, Oare Creek in Faversham in Kent. I shall refer to the Recycling Centre as “the site”.

[3]The offences in question were alleged to have been committed between 27 June and 23 October 2003. The offences alleged in the informations preferred by the Respondent were as follows:

“(i) On 27th June 2003 on land at the Recycling Centre, Oare Creek, Faversham, in the county of Kent, did breach a condition of a waste management licence, number P/05/41, namely condition 3.3, in that waste stored within the storage bays protruded forward of the bay walls and on to the site yard by approximately five metres, contrary to section 33(6) of the Environmental Protection Act 1990. (ii) On 8th July 2003 on land at the Recycling Centre, Oare Creek, Faversham, in the county of Kent, did breach a condition of a waste management licence, number P/05/041, namely condition 3.3, in that the waste stored within the storage bay protruded forward of the bay walls and on to the site yard by approximately four metres, contrary to section 33(6) of the Environmental Protection Act 1990. (iii) On 8th July 2003 on land at the Recycling Centre, Oare Creek, Faversham, in the county of Kent, did breach a condition of a waste management licence, number P/05/41, namely condition 3.4, in that waste stored within the storage bay was above the permitted height of 2.5 metres, contrary to section 33(6) of the Environmental Protection Act 1990. (iv) On 28th August 2003 on land at the Recycling Centre, Oare Creek, Faversham, in the county of Kent, did breach a condition of a waste management licence, number P/05/41, namely condition 3.3, in that inert waste stored within the inert waste storage bay protruded forward of the bay walls and on to the site yard by approximately two meters, contrary to section 33(6) of the Environmental Protection Act 1990. (v) On 23rd October 2003 on land at the Recycling Centre, Oare Creek, Faversham, in the county of Kent, did breach a condition of a waste management licence, number P/05/41, namely condition 3.3, in that general waste stored within the waste storage bay protruded forward of the bay walls and on to the site yard by approximately four metres, contrary to section 33(6) of the Environmental Protection Act 1990. (vi) On 23rd October 2003 on land at the Recycling Centre, Oare Creek, Faversham, in the county of Kent, did breach a condition of a waste management licence, number P/05/41, namely condition 3.4, in that general waste stored within the waste storage bay was above the permitted height of 2.5 metres, contrary to section 33(6) of the Environmental Protection Act 1990.”

[4]The conditions referred to in these charges of the licence were as follows:

“3.3 No waste shall be stored other than within the area(s) shown on the approved site layout drawing. No waste in the waste storage bays shall be stored forward of the front edge of the bay wall. All Category B1, B2 and C (Difficult) waste which is not in the covered bay shall be stored in covered skips. 3.4 No waste shall be stored to a height exceeding 2.5 metres.”

No waste in the waste storage bays shall be stored forward of the front edge of the bay wall. All Category B1, B2 and C (Difficult) waste which is not in the covered bay shall be stored in covered skips.

The legislative background

[5]The licence had been granted by Kent County Council under the provisions of the Control of Pollution Act 1974. On 1 April 1996, the relevant powers and duties of the County Council were transferred to the Environment Agency by virtue of section 2 of the Environment Act 1995.

[6]“Controlled waste” is now defined by section 75 of the Environmental Protection Act 1990. The section has been much amended, and I have sympathy with those who need to ascertain what its provisions were at any particular time in the past. So far as is relevant, at the times material to this appeal it was as follows:(1) The following provisions apply for the interpretation of this Part.

(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; but does not include a substance which is an explosive within the meaning of the Explosives Act 1875.

(3) Any thing which is discarded or otherwise dealt with as if it were waste shall be presumed to be waste unless the contrary is proved.

(4) “Controlled waste” means household, industrial and commercial waste or any such waste.

(5) Subject to subsection (8) below, “household waste” means waste from- (a) domestic property, that is to say, a building or self contained part of a building which is used wholly for the purposes of living accommodation; (b) a caravan (as defined in section 29(1) of the Caravan Sites and Control of Development Act 1960) which usually and for the time being is situated on a caravan site (within the meaning of that Act); (c) a residential home; (d) premises forming part of a university or school or other educational establishment; (e) premises forming part of a hospital or nursing home.

(6) Subject to subsection (8) below, “industrial waste” means waste from any of the following premises- (a) any factory (within the meaning of the Factories Act 1961); (b) any premises used for the purposes of, or in connection with, the provision to the public of transport services by land, water or air; (c) any premises used for the purposes of, or in connection with, the supply to the public of gas, water or electricity or the provision of sewerage services; or (d) any premises used for the purposes of, or in connection with, the provision to the public of postal or telecommunications services.

(7) Subject to subsection (8) below, “commercial waste” means waste from premises used wholly or mainly for the purposes of a trade or business or the purposes of sport, recreation or entertainment excluding- (a) household waste; (b) industrial waste; (c) waste from a mine or quarry and waste from premises used for agriculture within the meaning of the Agriculture Act 1947 or, in Scotland, the Agriculture (Scotland) Act 1948; and (d) waste of any other description prescribed by regulations made by the Secretary of State for the purposes of this paragraph.

(8) Regulations made by the Secretary of State may provide that waste of a description prescribed in the regulations shall be treated for the purposes of provisions of this Part prescribed in the regulations as being or not being household waste or industrial waste or commercial waste; but no regulations shall be made in respect of such waste as is mentioned in subsection (7)(c) above and references to waste in subsection (7) above and this subsection do not include sewage (including matter in or from a privy) except so far as the regulations provide otherwise.

(9) “Special waste” means controlled waste as respects which regulations are in force under section 62 above. (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; but does not include a substance which is an explosive within the meaning of the Explosives Act 1875. (a) domestic property, that is to say, a building or self contained part of a building which is used wholly for the purposes of living accommodation; (b) a caravan (as defined in section 29(1) of the Caravan Sites and Control of Development Act 1960) which usually and for the time being is situated on a caravan site (within the meaning of that Act); (c) a residential home; (d) premises forming part of a university or school or other educational establishment; (e) premises forming part of a hospital or nursing home. (a) any factory (within the meaning of the Factories Act 1961); (b) any premises used for the purposes of, or in connection with, the provision to the public of transport services by land, water or air; (c) any premises used for the purposes of, or in connection with, the supply to the public of gas, water or electricity or the provision of sewerage services; or (d) any premises used for the purposes of, or in connection with, the provision to the public of postal or telecommunications services. (a) household waste; (b) industrial waste; (c) waste from a mine or quarry and waste from premises used for agriculture within the meaning of the Agriculture Act 1947 or, in Scotland, the Agriculture (Scotland) Act 1948; and (d) waste of any other description prescribed by regulations made by the Secretary of State for the purposes of this paragraph.

[7]However, as will appear, it is also necessary to refer to some definitions in section 30 of the Control of Pollution Act 1974: (1) Subject to the following subsection, in this Part of this Act— .. “controlled waste” means household, industrial and commercial waste or any such waste; … “private dwelling” means— (a) a hereditament or premises used wholly for the purposes of a private dwelling or private dwellings as determined in accordance with Schedule 13 to the General Rate Act 1967; and (b) a caravan … …. “waste” includes— (a) any substance which constitutes a scrap material or an 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, but does not include a substance which is an explosive within the meaning of the Explosives Act 1875; .... (3) …, for the purposes of this Part of this Act— (a) household waste consists of waste from a private dwelling or residential home or from premises forming part of a university or school or other educational establishment or forming part of a hospital or nursing home; (b) industrial waste consists of waste from any factory within the meaning of the Factories Act 1961 and any premises occupied by a body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or any undertaking, excluding waste from any mine or quarry; and (c) commercial waste consists of waste from premises used wholly or mainly for the purposes of a trade or business or the purposes of sport, recreation or entertainment excluding— (i) household and industrial waste, and (ii) waste from any mine or quarry and waste from premises used for agriculture within the meaning of the Agriculture Act 1947 or, in Scotland, the Agriculture (Scotland) Act 1948, and (iii) waste of any other description prescribed for the purposes of this sub-paragraph. .. “controlled waste” means household, industrial and commercial waste or any such waste; … “private dwelling” means— (a) a hereditament or premises used wholly for the purposes of a private dwelling or private dwellings as determined in accordance with Schedule 13 to the General Rate Act 1967; and (b) a caravan … …. “waste” includes— (a) any substance which constitutes a scrap material or an 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, but does not include a substance which is an explosive within the meaning of the Explosives Act 1875; .... (a) household waste consists of waste from a private dwelling or residential home or from premises forming part of a university or school or other educational establishment or forming part of a hospital or nursing home; (b) industrial waste consists of waste from any factory within the meaning of the Factories Act 1961 and any premises occupied by a body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or any undertaking, excluding waste from any mine or quarry; and (c) commercial waste consists of waste from premises used wholly or mainly for the purposes of a trade or business or the purposes of sport, recreation or entertainment excluding— (i) household and industrial waste, and (ii) waste from any mine or quarry and waste from premises used for agriculture within the meaning of the Agriculture Act 1947 or, in Scotland, the Agriculture (Scotland) Act 1948, and (iii) waste of any other description prescribed for the purposes of this sub-paragraph.

The proceedings before the justices

[8]Before the justices it was not disputed that at the dates charged in the information there was waste in the storage bays and protruding on the ground forward of the front edge of the bay wall. Nor was it disputed that there was waste the height of which exceeded 2.5 metres. It was common ground that the restrictions in the licence applied to controlled waste only. The Appellant did not give evidence. It was contended on its behalf that the Respondent had not proved to the requisite criminal standard that the waste in question was controlled waste, rather than agricultural waste or waste from a mine or quarry. Secondly, it was suggested that the waste was not being stored, because it was the subject of sorting or some other operation at the times referred to in the charges. The Respondent submitted that it had established that the waste in question was controlled waste, and that it was immaterial whether it was the subject of any operation at the times material to the charges, since it was in any event “stored” at those times. As indicated above, the justices rejected the Appellant’s submissions and convicted it of all of the charges. In deciding on the meaning of “storage” in the licence, they referred to condition 2.7, a clause that had not been referred to during the hearing. This led to a contention by the Appellant that the hearing had not been fair and that there had been a breach of its rights under

Article 6 of the European Convention on Human Rights

. It was also suggested that the justices’ reasons were insufficiently clear to meet the requirements of Article 6.

The issues on this appeal

[9]Before us, the Appellant submitted:(a) The justices erred in finding that the Respondent had proved that the waste that was the subject of the various charges was controlled waste. The justices were not entitled to find that the Environment Agency had proved that the waste that was the subject of the charges was not agricultural waste.

(b) Conditions 3.3 and 3.4 of the licence were too imprecise to found a criminal conviction for their breach.

(c) The justices had erred in finding that the waste had been stored by the Appellant at the times referred to in the charges.

(d) The justices had been wrong to refer to clause 2.7 of the licence without asking for the parties’ submissions on its relevance and effect; as a result the hearing had been unfair and in breach of Article 6.

[10]In his skeleton argument, Mr Jones also submitted that the justices’ reasons were inadequate. This submission was rightly not pursued in oral argument.

The evidence before the justices and their findings of fact

[11]So far as is relevant to the issues before this Court, the justices findings of fact as set out set out under paragraph 2 of the case stated were as follows:

“(iv) On the 27th June 2003, John Griffin, an Environment Officer employed by the Respondent, visited the site and found waste being stored and protruding for five metres beyond the edge of the waste storage bay walls. This was in breach of condition 3.3 of the licence; (v) On the 8th July 2003, Colin Bowley and Stacey Setterfield, Environment Officers employed by the Respondent, visited the site and found waste being stored and protruding beyond the edge of the bay walls in to the site yard by approximately four metre and above the permitted height of 2.5 metres. This was in breach of conditions 3.3 and 3.4 of the licence, respectively; (vi) On the 28th August, 2003, Mr Griffin visited the site and found inert waste in excessive quantities being stored outside the storage bay area, protruding beyond the edge of the bay walls by approximately two metres. This was in breach of condition 3.3 of the licence; (vii) On the 23rd October Mr Griffin and Stephen Reeves, an Environment Officer employed by the Appellant, attended the site and found general waste being stored forward of the waste storage bay by four metres and was above the permitted height of 2.52 metres; this was in breach of conditions 3.3 and 3.4 of the licence, respectively. (viii) That the waste in question was “controlled” waste within the meaning of section 75(4) and 75(7) if the Environmental Protection Act 1990. We based this finding on the following: a. Mr Griffin’s evidence that the waste he saw on the 27th June, 28th August and 23rd October 2003 was not expected to come from farms and/or quarries; b. Mr. Bowley’s evidence that the waste he saw on 8th July 2003 was, in hid opinion, the waste was category A, and/or B “controlled” waste c. The absence of any evidence from the Appellant to the contrary; (ix) The following is a short statement of the relevant evidence: a. In cross examination Mr Griffin for the Environment Agency stated that, having regard to the location of the site where there were many farms and quarries nearby, it was possible that the waste at the site could have come from those sources. He accepted that he could not be 100% sure that the waste at the site had not come from farms or quarries. He accepted that he had no evidence to say that the waste at the site had not come from those sources. Mr Griffin agreed there would be no violation of the licence. In re-examination he agreed with the suggestion the he would not expect waste to some from farms and quarries. b. Mr Griffin accepted that a child who plays with his toys is not storing the toys and it was only when the toys were put into the box that storage could be said to take place. Mr Griffin could not explain why the same approach to storage should not apply in the present case. c. Extracts from two site inspection reports (copy of each appended hereto) were read aloud to Mr Griffin in cross examination on behalf of the Appellant. The first statement from Environment Agency officer Louise Johnson, in relation to an inspection carried out on the 19th March 2003, stated: “waste in front of the covered bay, however if pushed into the bay it will be within height limits” and that there were no non-compliances found during the inspection. The second statement, made by Environment Agency officer K. Martin, in relation on an inspection on the 12th April 2003, stated: “Waste outside of bay but will be pushed back at end of day” and that there were no non-compliances found during the inspection. Mr Griffin stated that he could not give evidence on behalf of those officers, who were not present, but that it appeared from these reports that those officers considered waste being worked or handled in front of the storage bay, but pushed back into the bay at the end of the day, to be compliant with the licence conditions. d. Mr Griffin gave evidence that the Appellant had invited the Agency to come back on each occasion to see the position at the end of the day when the waste was put back into the storage bays but the Agency declined to do so and made no visits towards the end of the operating hours of the day. e. Mr Bowley was shown photographs relating to a pile of waste taken in 8th July 2003. He said that the waste in the photographs was, in his opinion, Category A and/or Category B waste which is controlled waste. There were no questions put to him as to the origin of the waste in the photographs, nor as to whether any of the waste which was the subject of the charges on the other days was controlled waste. f. Mr Bowley gave evidence in chief that he considered storage to be the point where waste is deposited, treated, handled at any time when it is kept on the site. In cross-examination he said, depending on the type of waste, there is a difference between when the waste is deposited, handled and stored. He considered waste to be stored whilst on the premises that is, while it is being treated. In his opinion, storage did not differ from keeping. His understanding was that keeping and storage were the same activity. He did not know why keeping and treating only were mentioned in the licence. Interpretation of the licence did not depend on the identity of the licence holder.” a. Mr Griffin’s evidence that the waste he saw on the 27th June, 28th August and 23rd October 2003 was not expected to come from farms and/or quarries; b. Mr. Bowley’s evidence that the waste he saw on 8th July 2003 was, in hid opinion, the waste was category A, and/or B “controlled” waste c. The absence of any evidence from the Appellant to the contrary; a. In cross examination Mr Griffin for the Environment Agency stated that, having regard to the location of the site where there were many farms and quarries nearby, it was possible that the waste at the site could have come from those sources. He accepted that he could not be 100% sure that the waste at the site had not come from farms or quarries. He accepted that he had no evidence to say that the waste at the site had not come from those sources. Mr Griffin agreed there would be no violation of the licence. In re-examination he agreed with the suggestion the he would not expect waste to some from farms and quarries. b. Mr Griffin accepted that a child who plays with his toys is not storing the toys and it was only when the toys were put into the box that storage could be said to take place. Mr Griffin could not explain why the same approach to storage should not apply in the present case. c. Extracts from two site inspection reports (copy of each appended hereto) were read aloud to Mr Griffin in cross examination on behalf of the Appellant. The first statement from Environment Agency officer Louise Johnson, in relation to an inspection carried out on the 19th March 2003, stated: “waste in front of the covered bay, however if pushed into the bay it will be within height limits” and that there were no non-compliances found during the inspection. The second statement, made by Environment Agency officer K. Martin, in relation on an inspection on the 12th April 2003, stated: “Waste outside of bay but will be pushed back at end of day” and that there were no non-compliances found during the inspection. Mr Griffin stated that he could not give evidence on behalf of those officers, who were not present, but that it appeared from these reports that those officers considered waste being worked or handled in front of the storage bay, but pushed back into the bay at the end of the day, to be compliant with the licence conditions. d. Mr Griffin gave evidence that the Appellant had invited the Agency to come back on each occasion to see the position at the end of the day when the waste was put back into the storage bays but the Agency declined to do so and made no visits towards the end of the operating hours of the day. e. Mr Bowley was shown photographs relating to a pile of waste taken in 8th July 2003. He said that the waste in the photographs was, in his opinion, Category A and/or Category B waste which is controlled waste. There were no questions put to him as to the origin of the waste in the photographs, nor as to whether any of the waste which was the subject of the charges on the other days was controlled waste. f. Mr Bowley gave evidence in chief that he considered storage to be the point where waste is deposited, treated, handled at any time when it is kept on the site. In cross-examination he said, depending on the type of waste, there is a difference between when the waste is deposited, handled and stored. He considered waste to be stored whilst on the premises that is, while it is being treated. In his opinion, storage did not differ from keeping. His understanding was that keeping and storage were the same activity. He did not know why keeping and treating only were mentioned in the licence. Interpretation of the licence did not depend on the identity of the licence holder.”

[12]The justices’ conclusions are set out in paragraph 6 of the case:

“We are of the opinion that: (i) Based on Mr. Griffin’s evidence that the waste was not expected to come from farms and/or quarries, and in the absence of any evidence from the Appellant to the contrary, we were entitled to find that the waste Mr Griffin saw in the 27th June, 28th August and 23rd October 2003 was controlled waste within the meaning of section 75(4) and 75(7) of the Environmental Protection Act 1990; (ii) Based on Mr Bowley’s evidence that, in his opinion, the waste was category A, and/or B “controlled” waste, and in the absence of any evidence from the Appellant to the contrary, we were entitled to find that the waste Mr Bowley saw on 8th July was controlled waste within the meaning of section 75(4) and 75 (7) of the Environment Protection Act 1990. His use of categories A and/or B in relation to the waste did not assist us in this regard, but we did rely on his use of the term “controlled” in making this finding, which we were sure applied to the categories of waste controlled under sections 75(4) and 75(7) of the Act; (iii) The interpretation of the term “storage” was a matter for us to decide having regard to the facts of the case and the common-sense meaning of the word; (iv) In arriving at a common sense meaning of the word “storage” we took into account the following:- a. The Oxford English Dictionary definition of the word, i.e. ‘furnish, supply, stock, keep in store for future use, to form, accumulate or store, to deposit’. b. The licence containing condition 2.7 in which the covered storage area is defined as covering the area where such waste is deposited or dealt with. The whole licence having been produced to us in evidence at the hearing without restriction, and the Appellant having been supplied with a copy, we considered that it was not unfair to refer to condition 2.7 in this way; c. Mr Bowley’s definition of the term to mean “the point where the waste is on site being treated until it can be removed from site”; (v) On any of the above definitions, the conditions in which Mr Griffin and Mr Bowley saw the controlled waste amounted to “storage”

. Even if, at the material times, the waste in question was either being worked, sorted or processed, this would also have amounted to “storage”. In relation to the inert waste seen on the 28th August 2003, this was being “stored” because it was being processed on the site outside the covered storage area; (vi) Therefore, the controlled waste in question was stored at all material times; (vii) Conditions 3.3 and 3.4 were sufficiently precise in meaning and clear so as not to be incompatible with

Article 7 of the European Convention on Human Rights

.” a. The Oxford English Dictionary definition of the word, i.e. ‘furnish, supply, stock, keep in store for future use, to form, accumulate or store, to deposit’. b. The licence containing condition 2.7 in which the covered storage area is defined as covering the area where such waste is deposited or dealt with. The whole licence having been produced to us in evidence at the hearing without restriction, and the Appellant having been supplied with a copy, we considered that it was not unfair to refer to condition 2.7 in this way; c. Mr Bowley’s definition of the term to mean “the point where the waste is on site being treated until it can be removed from site”;

[13]The questions stated for the opinion of the Court are as follows:

“1. In relation to the issue of “controlled waste”, were we entitled to find that the waste to which the informations related was proven beyond a reasonable doubt to be “controlled waste”; 2. In relation to the issue of “storage” of controlled wastes, were we entitled to find that: i. conditions 3.3 and 3.4 of the licence were sufficiently precise to found a criminal convection; ii. the meaning of “storage” included the handling, treating and processing of material at the times in question (during the course of the working day)? iii. That the inert waste was “stored” because it was being processed outside the correct storage area, where in fact the licence itself required that inert waste was stored in a separate inert waste storage area and its proximity or not to the covered “general waste” bay is irrelevant?” i. conditions 3.3 and 3.4 of the licence were sufficiently precise to found a criminal convection; ii. the meaning of “storage” included the handling, treating and processing of material at the times in question (during the course of the working day)? iii. That the inert waste was “stored” because it was being processed outside the correct storage area, where in fact the licence itself required that inert waste was stored in a separate inert waste storage area and its proximity or not to the covered “general waste” bay is irrelevant?”

Discussion

[14]Before addressing the issues raised on this appeal, it is necessary to comment on the form of the case stated. There is a surprisingly common misconception that once an appeal by way of case stated is before the court, the parties may refer to evidence, or at least undisputed evidence, that was before the lower court in addition to that set out in the case. In the present proceedings, for example, the Respondent submitted to the Court a bundle of documentary exhibits none of which was exhibited or appended to the case stated.

[15]On an appeal by way of case stated, the Court is confined to the facts set out in the case. It is therefore important that the parties ensure that the case includes all those matters that should be before the Court when deciding the issues raised on the appeal. If a party to an appeal considers that the case produced by the lower court omits relevant matters, he should seek to have the case supplemented either by agreement with the other party and the lower court or by application to this Court under section 28(A)(2) of the Supreme Court Act 1981 for an order for the amendment of the case stated. Such an application was made in the present case, and an order made for the amendment of the original case, but the resultant case was nonetheless in my judgment deficient. The appeal raised a question as to the meaning of “stored” in conditions 3.3 and 3.4 of the licence. Those conditions were set out in the case, but the other terms of the licence were not, and the licence itself was not exhibited or appended to the case stated. The wording of condition 2.7, on which the justices relied, was summarised but it was not set out verbatim. It is trite to state that words must be construed in their context. If the meaning of a word or provision in a written instrument is to be construed, its context includes the whole document. The Court would be unwise to decide the meaning of “store” without considering the provisions of the licence other than conditions 3.3 and 3.4. For this reason, we did take into account the licence as a whole, without objection from the parties.

[16]The justices also had before them photographs of waste on the site taken on the dates of the alleged offences. They too were referred to by the justices but not exhibited to the case stated. The attitude of the Appellant to these photographs was ambivalent. As indicated above, before the hearing of the appeal its solicitors objected to their going before the Court. However, when questions were raised as to whether there were in fact any operations being conducted in relation to the waste at the times charged, the Court was asked to look at the photographs, some of which show equipment operating next to the waste. We have been able to determine this appeal without reference to these photographs, but we do feel that the court would have been better informed if they had been included in the case.

[17]I turn to consider the questions raised by this appeal. (a). Were the justices entitled to find that the waste was controlled waste?

[18]The Appellant contended that the licence regulated its use of the site in relation only to controlled waste, and specifically household, industrial and commercial waste. Agricultural waste and waste from quarries are not controlled waste. It follows, it was contended, that conditions 3.3 and 3.4 could have no application to such waste, and that the Environment Agency had not excluded the reasonable possibility that the waste that was referred to in the charges was agricultural or quarry waste.

[19]As appears above, this issue was whether the Environment Agency’s evidence permitted the justices to find that the waste referred to in the charges was not agricultural or quarry waste. It was not suggested that if the waste was not agricultural or quarry waste, it could nonetheless be other than controlled waste: i.e., the issue was controlled waste or agricultural or quarry waste?

[20]As a result of the production of the licence to the Court, we asked the parties about condition 1.7, which is of obvious relevance. 1.7 of the licence provided:

“No waste shall be received or handled at the site other than household, industrial and commercial waste as defined in section 30 of the Control of Pollution Act 1974, …”

[21]The licence had originally been granted by Kent County Council in 1993 under the provisions of Part 1 of that Act, which have been replaced by provisions of the Environmental Protection Act 1990. Curiously, the conditions of the licence had not been modified by the Environment Agency under its statutory powers so as to incorporate the applicable provisions of the 1990 Act. Even more curiously, neither party before us referred to the definitions in the 1974 Act, and indeed no copy of section 30 of the Act was put before us. The parties assumed that the definitions in section 75 of the 1990 Act were incorporated in and applicable to the licence. The fact that the licence refers to the 1974 Act, and not the 1990 Act, was brought to the attention of the parties by the Court following the hearing, and they were invited to (and did) make supplementary written submissions. As it happens, it is agreed that in the present case there is no material difference between the relevant definitions in the two Acts; but the provisions of the 1990 Act are clearer, and in other cases the distinction may be important.

[22]Mr Jones, on behalf of the Appellant, suggested that condition 1.7 of the licence did not prohibit the storage of agricultural waste or waste from quarries on the site. Mr Jones submitted that it would have been ultra vires to have imposed such a condition, since a licence may only relate to controlled waste. The purpose of condition 1.7, he suggested, was to prohibit the receipt of special waste on the site. Special waste is waste that is the subject of regulations made under section 62 of the 1990 Act (see section 75(9)), and is generally more hazardous waste. Mr Lucie, on behalf of the Respondent did not dissent from these submissions. For the purpose of this appeal, given that common ground, I am prepared to decide this issue on that basis; but I must express my reservations as to their correctness. It seems to me to be within the wide powers of the Environment Agency under section 35 of the Environmental Protection Act 1990 to impose a condition of a licence prohibiting the licensee from mixing controlled waste with other waste. The prohibition in condition 1.7 relates to waste generally, other than that specified; the prohibition is not in terms restricted to controlled waste other than that specified. If I consider the provisions of the 1974 Act, to which condition 1.7 refers, I find that there was no such concept as special waste.

[23]It was not and is not suggested on behalf of the Appellant that the waste seen by the witnesses referred to in paragraph 2 of the case was of a kind that was inconsistent with its being household, industrial or commercial waste. The challenge to the prosecution case was based on the origin of the waste rather than its nature. It was implicit in the cross-examination of Mr Griffin that any waste that comes from a farm or quarry is not controlled waste. In my judgment, that assumption was not justified. In the first place, in my judgment waste from a farm house is household waste rather than agricultural waste. It makes no sense, for example, for a discarded television from a farm house to be agricultural waste when the same waste from a dwelling house nearby is household waste. Nor does it make sense for a house across the road from a farm to be the source of household waste, yet for the same kind of waste from a house at the edge of a farm to be agricultural waste. Mr Jones relied on the reference in section 75(7)(c) to “premises used for agriculture within the meaning of the Agriculture Act 1947 …”. However, it is significant that in that reference Parliament could have used, but did not use, the expression “agricultural unit”, which is defined in section 109(2) of the 1947 Act as including a dwelling-house or other building occupied by the same person as the occupier of the agricultural land for the purpose of farming. In my judgment, both the 1974 Act and the 1990 Act permit of the interpretation that waste from a dwelling-house on a farm is household rather than agricultural waste, and for the reasons I have given that is the correct interpretation.

[24]Furthermore, it seems to me that the nature of waste falls to be considered by its origin when it becomes waste. It does not change from, say industrial waste to agricultural waste because it is deposited or stored on agricultural land before being collected and taken to a waste disposal or transfer unit. For example, if industrial waste is fly-tipped on a farmer’s field, that waste does not become agricultural waste for the purposes of waste control. It remains industrial waste.

[25]It follows that the mere fact that waste comes from farms or quarries (see the cross-examination of Mr Griffin) does not of itself establish that it is agricultural waste or waste from a quarry within the meaning of section 30 of the 1974 Act or section 75 of the 1990 Act, and does not establish that it is outside the scope of the conditions in the licence. Moreover, Mr Griffin’s acceptance of that possibility does not of itself render it impossible for a court to find that the waste did not come from those sources. That possibility had to be sufficiently substantial to prevent a court from being sure of guilt. A remote possibility is not inconsistent with proof at the criminal standard.

[26]Furthermore, the Appellant’s case assumes that conditions 3.3 and 3.4 are restricted to controlled waste, notwithstanding their general terms. On that assumption, in my judgment those conditions are broken if a mixture of controlled and uncontrolled waste is stored in contravention of the prohibitions in them. In other words, in the case of condition 3.4 for example, there would be a contravention if waste stored at a height exceeding 2.5 metres was a mixture of waste that included any significant quantity of household, individual or commercial waste. That was the approach of the Criminal Division of the Court of Appeal in R v Rothschild & RH Tomlinson Ltd

[2004] EWCA 3320

at [12]. The presence of non-controlled waste would not detract from the fact that controlled waste was stored at a prohibited height. That construction of the condition is appropriate because the obvious purpose of the condition is to prevent waste being blown by the wind or falling over the protecting fence (see condition 2.3).

[27]The justices were entitled to rely on Mr Griffin’s answer in cross-examination against the background that it was not asserted that the kind of waste seen by him indicated that it was agricultural or quarry waste, and the fact that the presence of any significant quantify of controlled waste would be subject to the conditions in question. It seems to me that the evidence before the justices justified their finding that they could be sure that some of the waste to which the charges referred was of this class of waste. There was a case for the Appellant to meet, which, after it declined to give evidence, the justices were entitled to conclude was proof of its guilt.

[28]I have reached my conclusion on the present question without regard to the burden of proof, because according to Mr Jones the hearing before the justices was conducted on the basis that it lay on the Environment Agency throughout. However, but for this fact, I would have held that in the present case, where it was not suggested that the waste did not appear to be controlled waste, i.e., it was not suggested that the type of waste in question demonstrated or suggested that it came from a farm or quarry, the onus of proving that the waste was not commercial waste was on the Appellant. That conclusion is necessary in order to render the control of waste practically enforceable. I have reached it having had regard to what was said in Environment Agency v M E Foley Contractors Ltd

[2002] EWHC 258 (Admin)

at [30] as to the application of section 101 of the Magistrates’ Courts Act 1980 on a case-specific basis, and it is consistent with the view expressed in Environment Agency v Armstrong Environmental Services Ltd

[2005] EWHC 633 (Administrative)

at [7]. The Appellant knew and could prove what was the source of the waste. The Environment Agency could not. The Appellant chose not to seek to prove that what was apparently controlled waste came from farms and quarries. I assume that, as Mr Jones stated, the Appellant was required to keep records of its dealings with waste under its licence, and that the Agency might have required disclosure of those records; but, if the Appellant’s contention that the licence did not affect its storage of non-controlled waste (here, agricultural and quarry waste) is correct, it was not required to, and presumably did not, keep records relating to its dealing with such waste. This case differs from Environment Agency v M E Foley Contractors Ltd, on which Mr Jones relied. In that case the charge was that the first defendant had delivered contaminated soil to a site without a licence extending to such special waste. It was held, not surprisingly, that it was for the Agency to prove that the soil was contaminated. That is a very different question from the question whether the source of waste takes it outside the definition of commercial waste.

[29]I would add that it is not surprising that the Appellant’s case on this issue was not sympathetically received by the justices. Of course, the enforcement of waste control, and the protection of the environment that it involves, by the criminal process means that the rules of criminal law as to procedure and proof apply. But a criminal trial should not be a tactical game. If the waste that was the subject of the charges in this case did come from farms or quarries only, and was not farmhouse waste, the Appellant could have called evidence to that effect. Having elected not to do so, they must accept the consequence that a case to answer became a proven case against them.

[30]For the above reasons, I would hold that the justices were entitled to find that the waste to which the information related had been proven beyond a reasonable doubt to be controlled waste.

Storage

[31]I find the drafting of the questions for the opinion of the Court under this head (paragraph 2 of those questions) somewhat misleading. The question for the justices was not whether the word “storage” in the licence included the handling, treating and processing of waste at the times in question, but whether the waste was “stored” while being handled, treated and processed. The word “stored” is given a wide meaning in the licence. Condition 3.6 is as follows:

“3.6 Categories B1, B2 and C (difficult) waste shall not be stored for longer than 48 hours. Category A waste shall be segregated from the above waste types and shall not be stored for longer than 28 days.”

Category A waste shall be segregated from the above waste types and shall not be stored for longer than 28 days.”

[32]I think it clear that waste is stored within the meaning of this condition once it has been deposited on the site and until it is removed. Mr Jones submitted that the times laid down in condition 3.6 fell to be extended by any period of operations on waste, e.g. while it was sorted. That is to my mind an unlikely and impractical interpretation. In my judgment “stored” has the same meaning in conditions 3.3 and 3.4. By way of example, there is good reason to keep the height of waste below the specified limit even while it is sorted or otherwise the subject of processing, so as to minimise or prevent its escape from the site. I see no good reason why waste that is being stored should be considered to cease to be so if an employee works at that waste seeking to sort one kind of material from another. Mr Jones submitted that the maximum quantities of waste permitted at the site were inconsistent with a requirement that sorting or some other operation was to take place within the waste storage bays, because with those quantities of waste in the storage bays it would be impossible for the process of sorting to be carried out within them. However, there was no finding of fact on this on which the Appellant could rely. In any event, the argument ignores the fact that those quantities were maxima, not minima.

[33]I do not find condition 2.7, on which the justices relied, helpful. It is as follows:

“2.7 Following 1 January 1994 no deposit of category B1; B2 or C (difficult) waste shall take place at the Site until the back and side walls are completed in accordance with the approved Working Plan and a roof has been constructed which completely covers the area where such waste is deposited or dealt with. The design of the roof and walls shall be as detailed in the approved Working Plan.”

If anything, it points against a wide meaning for “store”. However, it does not lead me to a different conclusion from that indicated above.

[34]I derive no assistance from the decision of the House of Lords in Kaye v Burrows

[1931] AC 446

, to which Mr Jones referred us, where the context was very different from the present.

[35]In my opinion, therefore, waste was being stored within the meaning of conditions 3.3 and 3.4 even if it was the subject of processing. The justices reached the correct conclusion.

[36]I add that if the Appellant wished to obtain a ruling as to whether the operations, if any, it was carrying on were inconsistent with the waste being “stored”, their proper course was to have called evidence as to what those operations were and to have sought the statement of a case that contained relevant findings of fact as to those operations. That would have avoided the need for the case to be remitted to the justices in the event of this court accepting the Appellant’s construction of conditions 3.3 and 3.4.

[37]Mr Jones submitted that the word conditions 3.3 and 3.4 of the licence were too uncertain in their meaning to be capable of enforcement by a criminal prosecution. The fact that the meaning of a contractual or statutory provision is the subject of genuine controversy does not make it too vague to be enforced. It is an everyday experience that the interpretation of provisions of our criminal statutes is the subject of dispute in the courts. If a sufficiently clear meaning can be ascertained, the provision is enforceable. I have no doubt that both of those conditions are sufficiently clear to be enforced.

[38]I do not think that this question is susceptible of a simple answer. It is common for a court that retires and reserves its judgment after completion of the parties’ submissions to come across a provision of a contract or an item of correspondence that affects its conclusions. It may also come across a relevant authority that has not been cited. I do not think that fairness requires that every relevant matter be referred to the parties for their submissions. If it is decisive, it certainly should be. But often the matter is of marginal significance. If so, and it is contained in a document that has been put before the court, and which the parties have had the opportunity to consider and on which they have had an opportunity to make such submissions, I do not think that fairness requires that the argument is reopened. Between the decisive and the marginal is a grey area in which the judgment may normally be left to the tribunal. In case of doubt, the prudent course is to ask the parties if they wish to make further submissions.

[39]In any event, however, the Appellant’s complaint of breach of

Article 6 of the European Convention on Human Rights

is ill-founded. In deciding whether Article 6 has been infringed, it is necessary to consider the entirety of the decision-making process, including any available appeals and the availability of judicial review: see, R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions

[2001] UKHL 23

. In other words, the availability of this appeal by way of case stated is relevant. The Appellant has had a full opportunity to address the significance of condition 2.7 before us. Any possible unfairness has been remedied. The justices’ failure to seek the Appellant’s comments on that provision does not justify the quashing of its convictions.

Were the justices’ reasons sufficiently clear?

[40]Although the justices’ reasons are not a model of clarity, they have been sufficient to enable this Court to scrutinise their decision and to decide whether the Appellant was rightly convicted. There was no difficulty during the hearing of this appeal in understanding their decision or their reasons for it. There has been no infringement of Article 6.

Conclusions

[41]I would answer the questions for the opinion of the High Court as follows: 1. Yes. 2.(i) Yes.

(ii) Waste was stored for the purposes of conditions 3.3 and 3.4 of the licence while it was handled, treated or processed on the site. 3. (i) and (ii) These questions do not admit of a straightforward answer. They are addressed in paragraphs 38 and 39 above.

(iii) Yes.

[42]I agree.