Law report: The transfer of special waste was not by a 'carrier'

Shanks & McEwan (Southern Waste Services) Ltd v Environment Agency; Queen's Bench Divisional Court (Lord Justice Auld and Mr Justice Brian Smedley) 14 October 1997.

Where a company transferred special waste from the producer's premises to its own site for disposal, it was not a "carrier" within the terms of the Control of Pollution (Special Waste) Regulations 1980 since it was not transferring the waste to another person.

The Divisional Court allowed the appeal by way of case stated of Shanks & McEwan (Southern Waste Services Ltd) against their conviction by justices of two offences of unlawful failure as carriers of special waste to complete their part of a consignment note as required by regulation 4(5) of the Control of Pollution (Special Waste) Regulations 1980, contrary to regulation 16; and unlawful failure as such carriers to take reasonable measures to prevent the contravention by another of section 33 of the Environmental Protection Act 1990, contrary to section 34(1)(a) of the Act.

David Lamming (Barker Gotelee, Ipswich) for the appellants; Martin Collier (Legal Services Manager, Environment Agency, Peterborough) for the respondent.

Mr Justice Brian Smedley said that the appellants had been engaged by United Overseas Ltd ("UOL") to collect from their premises and to dispose of certain flammable waste material which, it was not disputed, fell within the definition of "special waste" in the 1980 Regulations.

UOL had not told the appellants that the waste was special waste, nor had they had prepared a consignment note for the benefit of the carrier and the local regulatory authority as required for special waste by regulation 4(1).

The appellants' driver took the waste to one of the appellants' own disposal sites, which was not one to which special waste was normally delivered. However, a chemist employed by the appellants found that the waste was special waste and diverted it to a properly licensed site. He notified the regulatory authority, and UOL later pleaded guilty to having failed to prepare the requisite consignment note, and to an offence contrary to section 34(1)(a) of the Environmental Protection Act 1990, of having failed, as producer of the waste, to take reasonable measures to prevent the contravention by another of section 33 of the Act.

The appellants argued that although they were contracted to transfer the waste for disposal they were not the carriers of the waste. The phrase "the carrier" was defined in regulation 4(5) as "any person who transfers special waste from the premises at which it is produced to another person for disposal", and the appellants were transferring the waste not to another person but to their own disposal site.

They submitted that if there was a lacuna in the 1980 Regulations it was for Parliament or the Secretary of State, not the court, to amend them and fill the gap. That had in fact been done by the the Special Waste Regulations 1996 which had replaced the 1980 Regulations from 1 September 1996. Under those regulations the carrier was defined as a "person who collects the waste . . . and transports it to another place".

Those submissions were correct, and the justices had, accordingly, erred in convicting the appellants of the first offence.

Section 34 of the 1990 Act and the Code of Practice issued thereunder in 1991 applied to a variety of people concerned in various ways and stages with controlled waste. The duty imposed by section 34(1)(a) on, inter alia, the carrier, was to "take all such measures applicable to him in that capacity as are reasonable in the circumstances to prevent any contravention by any other person of section 33". Section 33 prohibited, inter alia, unlicensed disposal of waste.

The appellants argued that the chain of responsibility for waste was forward looking, and that the duty on them as carriers of the waste did not extend to the prevention of a contravention of section 33 by a person from whom they had received the waste, but to exclude from that duty a contravention by any persons who had had earlier control of or contact with the waste was a wholly artificial way to interpret the section. It was also argued that if no actual offence had been committed under section 33, then there could be no breach of section 34, but the section could not be interpreted in that way.

However, in the present case, no offence under section 33 had actually been committed because the appellants' chemist had been vigilant and had diverted the waste to a licensed site. In those circumstances one had to ask in what respect it was alleged that the appellants had unlawfully failed to take all reasonable measures to prevent any contravention by any other person of section 33. A conviction under section 34(1)(a) could not therefore be justified.

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
News
video
Life and Style
tech
Arts and Entertainment
While many films were released, few managed to match the success of James Bond blockbuster 'Skyfall'
film
Arts and Entertainment
Up my street: The residents of the elegant Moray Place in Edinburgh's Georgian New Town
tvBBC's The Secret History of Our Streets reveals a fascinating window into Britain's past
Extras
indybest
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Business Analyst

£300 - £350 per day: Orgtel: Job Title: Business Analyst Rate: £300 - £350 per...

C# .NET Developer

£290 - £291 per day + competitive: Progressive Recruitment: Manchester C#.NET ...

SAP FICO Consultant - Midlands - Contract

£450 - £500 per day: Progressive Recruitment: SAP FICO Consultant - Midlands -...

SAP PROJECT MANAGER

£60000 - £70000 per annum + Benefits: Progressive Recruitment: SAP PROJECT MAN...

Day In a Page

Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little
Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform