Waste Operation

May 3rd, 2018 by James Goudie KC

Stone v Environment Agency (2018) EWHC 994 (Admin) concerned an offence under the Environmental Permitting Regulations of knowingly permitting the operation of a regulated facility without being authorised by an environmental permit. The regulated facility was a “waste operation” for the storage of waste. There were two questions: whether there was a continuing waste operation; and whether the accused had to have taken a positive act during the relevant period, or simply to have known that a waste operation was taking place.  Nicol J held that there was a continuing waste operation; and that “knowingly permitting” did not require proof of a positive act.

As regards continuing operation, Nicol J accepted submissions that:-

  1. The Regulations (2010 or 2017) were intended to implement the Waste Framework Directive (“the WFD”) and should, as far as possible be interpreted consistently with that directive. Recital 30 of the Preamble to the WFD noted that it was intended to implement the “precautionary principle” and the principle of preventative action enshrined in Article 174(2) of the TFEU. Likewise those principles had informed the interpretation of the word “waste” by the ECJ in Arco Chemie Nederland Ltd v Minister van Volkshuisvesting Ruimtelijke Ordening en Milieubeheer (C0418/97) at [39].
  2. Storage pending disposal or recovery was a “waste operation”.
  3. There was no authority for the Appellants’ argument that storage required some positive act of retention.
  4. There was no meaningful distinction between storage pending disposal or recovery on the one hand and passive sufferance.

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