Dewan v Fife Council [2019] CSOH 5

In Dewan v Fife Council [2019] CSOH 5, the Outer House considered a claim against Fife Council under s.33(1)(a) of the 1990 Act. The case is of particular interest for the meaning of "knowingly permitting" controlled waste to be deposited.

In 2010, the owner a site in Dunfermline leased it to the directors of a waste management company. The company obtained an exemption under the 1990 Act and the Waste Management Licensing (Scotland) Regulations 2011 for its activities at the site. The company's directors subsequently pleaded guilty to a charge of keeping controlled waste – comprised of 3,500 tonnes of waste carpets and waste plasterboard – in a manner likely to cause pollution of the environment and harm to human health between 28 September 2012 and 21 February 2013, contrary to ss. 33(1)(c) and (6) of the 1990 Act. The site owner alleged that, by 26 April 2012 at the latest, waste stored at the site was in breach of the company's exemption. He sought to recover £1,000,000 in restoration costs from the Council, rather than the company or the directors (paras. [1]-[3]).

The exemption, which was registered with SEPA, permitted the company to store waste at the site. It imposed a time-restriction of 12 months, a quantity restriction, and a requirement for the waste to be stored and managed without endangering human health and without using processes or methods that could harm the environment. The owner alleged that, around March 2011, the Council had entered into an arrangement for the company to dispose of its waste, and that it continued until about June 2012 when the Council stopped delivering waste to the site. The Council was one of about 38 third party users of the company's services. It was neither an occupier nor an operator of waste activities at the site (paras. [4]-[5]).

The owner's case was that the Council had knowingly permitted controlled waste to be deposited on the site – contrary to s.33(1)(a) of the 1990 Act – when those deposits were not in accordance with the company's exemption. He relied on section 73(6) of the 1990 Act, which provides for civil liability where an offence has been committed under section 33(1).

The Council applied to have the action dismissed on a number of grounds. The most significant was that the Council could not be found liable on the owner's pleaded case.

In granting the application, the court noted that the offence under section 33(1) was that of depositing waste material (para. [13]). It was agreed – with reference to the opinion of Lord Jones in McManus v City Link Development Company Ltd [2015] CSOH 178 at para. [216] – that no civil liability arose in respect of the storage of waste.

The key issue was the relationship between the Council and the company. The court agreed with the observation of Lord Jones in McManus at para. [217] that "a person cannot 'knowingly permit' an act unless that person has power either to permit it or to prohibit it". The owner had simply averred that "arrangements" existed between the Council and the company. There was nothing from which to infer that the Council had the power to prohibit what the company did with its waste (paras. [46]-[47]).

The terms of the arrangements were critical (para. [48]). It was possible to imagine contractual terms showing the necessary direction or control or power to prohibit. For example, they could have enabled the Council to direct the company's control over its operations, or required the company to provide regular reports on its dealings with or disposal of the Council's waste. The bare averment of subsisting but unspecified "arrangements", however, was not enough.

Reference was also made to English authorities on the phrase "knowingly permit": Alphacell Ltd v Woodward [1972] AC 824; Walker and Son (Hauliers) Ltd v Environment Agency [2014] EWCA Crim 100; and Stone v Environment Agency [2018] EWHC 994 (Admin). These cases showed that permitting involves allowing something to happen or failing to prevent it. This was consistent with the need to show a power to permit or control a deposit (paras. [49]-[50]).

Knowledge of a growing pile of waste at the site would not be sufficient. In order for the Council to be liable, it would have to have been in a position to permit or prevent the unlawful deposits (para [51]). The court also considered this to be consistent with the polluter-pays principle. The pleaded case could not show the Council to be a polluter: i.e. that it had knowingly caused or permitted the waste deposits made by the company (para. [51]).

Text reference para. 5.20