Contaminated Land Case

Waste Exemptions

The Court of Appeal decision in R v. Mustafa and others [2020] EWCA Crim 597 clarifies a short but important point on reliance on exemptions from the requirement for an environmental permit for waste operations as regulated facility. Mustafa, along with other directors of a company, Prime Biomass Limited, had been charged and convicted in respect of offences committed by the company on the basis of their consent, connivance or neglect. Mustafa's appeal was on the ground that the trial judge had erred in directing the jury on the law relating to the offence, and in particular on the question of whether, at the relevant time, the company's operation was an "exempt facility" as defined in the legislation.

The company had relied on an exemption in respect of its waste wood treatment operations.  The exemption, referred to as a "T6 exemption", allowed up to 500 tonnes of waste wood to be stored or treated at the site over any seven-day period. On a number of visits to the site between September and December 2013, Environment Agency officers found that the waste wood on the site exceeded 500 tonnes.  The Environment Agency had received complaints from several neighbouring business owners about nuisance caused by emissions of wood dust from the site. The company then went into voluntary liquidation.

The company had registered an exemption under the Environmental Permitting Regulations.  It was argued for the defendant that until the Agency removed the exemption from the register it remained and could be relied upon.   The Agency argued that an offence would be committed unless three requirements are met – registration of an exemption, compliance with specific conditions of the exemption, and consistency with the objectives of the Waste Framework Directive.

The defendant sought to counter this by an argument based on the need for legal certainty. It was argued that a situation where the risk of prosecution would arise intermittently as the quantity of the waste on the site fluctuated, particularly if that was in dispute, would be inimical to "legal certainty", which was an important protection not only for the operator but also for third parties, and the public. It was said that the register should be capable of being relied upon as an accurate record of the status of the operation and that the process as a whole would be undermined if the public register showed illegal waste sites as exempt facilities.

The Court of Appeal rejected that submission.  The nub of its judgment was at paras. 70-72:

  1. On a straightforward interpretation of the legislative provisions, in our view, a waste operation will only be an "exempt facility" if it fully meets the requirements of paragraph 3(1) of Schedule 2. If it does not meet those requirements in full, it cannot be an "exempt facility", and it must be a "regulated facility"; there is no other status it can then have. And if, as a "regulated facility", it is operated without an environmental permit, there is a breach of regulation 12 , and an offence under regulation 38 has been committed. That, it seems to us, is this case.
  2. The "requirements" that have to be met for an operation to be an "exempt waste operation", and thus an "exempt facility", are clearly set out in paragraph 3(1) of Schedule 2. There are three of them: first, that the operation satisfies "the general and specific conditions" specified in Part 1 of Schedule 3 for the relevant description of the operation (paragraph 3(1)(a); and chapter 2, section 1 , paragraph 3 and paragraph 6(3) of Schedule 3 ); second, that it is registered ( paragraph 3(1)(b) of Schedule 2 ); and third, that the type and quantity of waste, and method of disposal or recovery, are consistent with the relevant objectives of the Waste Framework Directive – that it does not endanger human health or harm the environment ( paragraph 3(1)(c) of Schedule 2 ).
  3. Those three requirements are mandatory, and cumulative. None of them is said to be optional or discretionary. None of them is said to override or displace the other two. They must all be satisfied. If any of them is not met, or ceases to be met, the operation cannot be an "exempt waste operation", and thus cannot be an "exempt facility" ( regulation 5), but can only be a "regulated facility" ( regulation 8 )."
The judgment makes good sense. It does however carry the consequence that a third party cannot simply assume that because a waste operation is registered as exempt that is in fact exempt and is being undertaken lawfully.

Text reference: 9-13