Legal Updates

Environmental Law – Contamination of Land – Unlawful Disposal of Waste

The recent case of Neal Soil Suppliers Ltd v Environment Agency for Wales [2007], involved issues relating to contaminated land and the unlawful disposal of waste. So far as material, section 33(1) of the Environmental Protection Act 1990 (“the Act”) provides as follows:

“...a person shall not:

(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of:

(i) in or on any land, or

(ii) by means of any mobile plant, except under and in accordance with a waste management licence;

(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health”.

In addition, section 59(1) of the Act provides as follows:

“If any controlled waste is deposited in or on any land in the area of a waste regulation authority or waste collection authority in contravention of section 33(1) above, the authority may, by notice served on him, require the occupier to do either or both of the following, that is:

(a) to remove the waste from the land within a specified period not less than a period of twenty-one days beginning with the service of the notice;

(b) to take within such a period specified steps with a view to eliminating or reducing the consequences of the deposit of the waste”.

The appellant in this case was contracted to remove contaminated soil from the site of a development. It deposited that waste soil on its land in breach of s.33 of the Act. Both the appellant in this case and the developer of the site pleaded guilty to the relevant offences.

The agency accordingly served a notice on the appellant under s.59(1) of the Act, requiring the removal of the waste. The appellant then appealed to the magistrates' court, and subsequently to the Crown Court, in order to have that notice amended so as to permit the treatment of the soil on its land.

The Crown Court took the view that to allow the appellant to treat the waste without a licence would be to condone an offence under s.33(1)(b) of the Act. Having regard to policy considerations of ensuring a proper licensing system for waste management, the Crown Court therefore refused to permit the modification sought by the appellant.

The appellant appealed against that decision.

The agency conceded that no offence under s.33(1) would be committed if the action in question was carried out in accordance with an appropriate notice under s.59(1) of the Act. Therefore a court could not rule out the possibility of the treatment of the waste as a 'specified step' in such a notice merely because such treatment would normally be an offence.

However, the agency attempted to argue that the Crown Court had found, effectively, that it would not be appropriate to let the present appellant treat the waste on his land, due to the fact that treatment would be carried out at an unlicensed site for a profit. This would mean that the licensing system for waste management would be circumvented.

The appeal was allowed by the court.

The court decided that s.33(1) of the Act had to be read subject to s.59(1). It held that actions taken in compliance with a s.59(1) notice would not amount to a criminal offence under s.33(1).

A notice under s.59(1) of the Act could require either removal, or the 'taking of specified steps'. The 'taking of specified steps' short of removal would normally involve keeping the waste on the land, which itself of course was an offence under s.33(1).

In a similar manner, a s.59 notice could require 'treatment' of the waste ('treatment' being given a wide meaning in the Act). The court felt that in such circumstances, the Crown Court had been powerfully influenced by a consideration that to permit the modification of the s.59(1) notice would be to condone the commission of a criminal offence, and that there was a clear legal flaw in taking that approach.

If you require further information please contact us at enquiries@rtcoopers.com .

© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

 

 

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