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Landowners beware of liability for occupiers’ abandoned waste

On 1 May 2018, the High Court dismissed an appeal against conviction in the magistrates’ court in a case involving offences relating to storage of waste (in this case, waste mattresses) without an environmental permit – Stone and another v Environment Agency. The case has serious implications for landowners where the land or buildings are/have been occupied by third parties.
The decision confirms existing case law on what the prosecution must show to make out the “knowingly permitting” offence in environmental permitting (now under regulation 12 of the Environmental Permitting (England and Wales) Regulations 2016 (SI 2016/1154)). The court confirmed that the offence of “knowingly permitting” did not require the accused to carry out a positive act. It was enough for the prosecution to show that the defendant knew about the waste operation and did nothing to prevent it.

Background

Anyone carrying out recovery or disposal of waste is carrying out a waste operation. Operating a regulated facility includes carrying out a waste operation, which therefore requires an environmental permit.  It is an offence to knowingly cause or knowingly permit breach of the requirement for an environmental permit.
A director or officer commits an offence if an offence committed by the company was either:

  • Committed with the consent or connivance of the director or officer.
  • Attributable to the neglect of the director or officer.

Salhouse owned a site, on which another person (Mr Qunisey) operated a waste business, of recycling mattresses, under a lease. Mr Stone is a director of Salhouse.
The Environment Agency (EA) served an enforcement notice on Mr Qunisey and he ceased trading. Approximately 471 tonnes (over 20,000 mattresses) of waste material remained on the site.
The EA’s case was that the Salhouse and Mr Stone (the appellants) had knowingly permitted a waste operation to continue at the site in the form of storage pending removal or disposal. The appellants argued that the recycling business had been Mr Qunisey’s, and that events after his departure should be viewed as a clean-up operation. They further argued that, if it had been a “waste operation”, they had not knowingly permitted it, as Mr Stone had been out of the country when the enforcement notice was served.
The magistrates held that the storage of the mattresses constituted a “waste operation” as defined by the EP Regulations 2010. The appellants were convicted under the regulations of knowingly permitting the operation of a regulated facility, namely a waste operation for waste storage, without an environmental permit. Mr Stone was further convicted under the regulations on the basis that the company had acted with his consent or connivance, or that its actions were attributable to his neglect as a director. The clean-up operation assertion was rejected.

Decision

The High Court dismissed the appeal.
The court confirmed that there was a continuing waste operation. There was no authority for the appellants’ argument that storage required some positive act of retention. The magistrates had been entitled to find that, even after service of the enforcement notice, the mattresses continued to be stored at the site. There was no meaningful distinction between storage pending disposal or recovery and passive sufferance pending the expulsion of the mattresses.
The EA was right to contend that the “knowingly permitting” alternative did not require that the defendant had taken a positive act. The prosecution did not therefore have to prove that the appellants had taken a positive act within the relevant period.

Comment

The courts have rarely considered the concept of “knowingly permitting” in environmental law. This decision confirms existing case law on what the prosecution must show to make out the “knowingly permitting” offence in environmental permitting.
The court confirmed that the offence of “knowingly permitting” did not require the accused to carry out a positive act. It was enough for the prosecution to show that the defendant knew about the waste operation and did nothing to prevent it.
This case is significant for landowners who may find themselves criminally liable for waste abandoned on their land. Whilst landowners cannot completely protect themselves from such a risk, if letting land or buildings it is important that landowners ensure the occupier has all necessary consent/permits for their proposed use, is a reputable business and seems financially able to meet its obligations.  Such matters should form part of a letting agent’s due diligence process.

If you need any Commercial Property advice, contact our Specialist Team on 0800 088 6004.