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.

Start your day with The Independent, sign up for daily news emails
Arts and Entertainment
The Doctor and Clara have their first real heart to heart since he regenerated in 'Deep Breath'
TV
Life and Style
Apple showed no sign of losing its talent for product launches with the new, slightly larger iPhone 6 making headlines
techSecurity breaches and overhyped start-ups dominated a year in which very little changed (save the size of your phone)
Arts and Entertainment
Jamie Oliver
filmTV chef Jamie Oliver turned down role in The Hobbit
News
The official police photograph of Dustin Diamond taken after he was arrested in Wisconsin
peopleDownfall of the TV star charged with bar stabbing
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Arts and Entertainment
Jeremy Clarkson, left, and Richard Hammond upset the locals in South America
tvReview: Top Gear team flee Patagonia as Christmas special reaches its climax in the style of Butch and Sundance
News
people
Sport
Ashley Barnes of Burnley scores their second goal
footballMan City vs Burnley match report
Arts and Entertainment
Peter Mayhew as Chewbacca alongside Harrison Ford's Han Solo in 'Star Wars'
film
News
i100
Arts and Entertainment
Man of action: Christian Bale stars in Exodus: Gods and Kings
film
Arts and Entertainment
Tracy Emin's 1998 piece 'My Bed' on display at Christie's
artOne expert claims she did not
News
Ernesto Che Guevara and Fidel Castro, right, met at Havana Golf Club in 1962 to mock the game
newsFidel Castro ridiculed the game – but now investment in leisure resort projects is welcome
News
Hackers revealed Oscar-winning actress Lawrence was paid less than her male co-stars in American Hustle
people
Arts and Entertainment
Clueless? Locked-door mysteries are the ultimate manifestation of the cerebral detective story
booksAs a new collection of the genre’s best is published, its editor explains the rules of engagement
Sport
Robin van Persie is blocked by Hugo Lloris
footballTottenham vs Manchester United match report
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

Recruitment Genius: Business Manager

£32000 - £40000 per annum: Recruitment Genius: A Business Manager is required ...

Recruitment Genius: Operations Manager

£45000 - £55000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: Panel & Cabinet Wireman

£20000 per annum: Recruitment Genius: Panel Wireman required for small electro...

Recruitment Genius: Electronics Test Engineer

£25000 - £27000 per annum: Recruitment Genius: An SME based in East Cheshire, ...

Day In a Page

A timely reminder of the bloody anniversary we all forgot

A timely reminder of the bloody anniversary we all forgot

Who remembers that this week we enter the 150th anniversary year of the end of the American Civil War, asks Robert Fisk
Homeless Veterans appeal: Former soldiers pay their respects to a friend who also served

Homeless Veterans appeal

Former soldiers pay their respects to a friend who also served
Downfall of Dustin 'Screech' Diamond, the 'Saved By The Bell' star charged with bar stabbing

Scarred by the bell

The downfall of the TV star charged with bar stabbing
Why 2014 was a year of technological let-downs

Why 2014 was a year of technological let-downs

Security breaches and overhyped start-ups dominated a year in which very little changed (save the size of your phone)
Cuba's golf revolution: But will the revolutionary nation take 'bourgeois' game to its heart?

Will revolutionary Cuba take 'bourgeois' golf to its heart?

Fidel Castro ridiculed the game – but now investment in leisure resort projects is welcome
The Locked Room Mysteries: As a new collection of the genre’s best is published, its editor Otto Penzler explains the rules of engagement

The Locked Room Mysteries

As a new collection of the genre’s best is published, its editor explains the rules of engagement
Amy Adams on playing painter Margaret Keane in Tim Burton's Big Eyes

How I made myself Keane

Amy Adams hadn’t wanted to take the role of artist Margaret Keane, because she’d had enough of playing victims. But then she had a daughter, and saw the painter in a new light
Ed Richards: Parting view of Ofcom chief. . . we hate jokes on the disabled

Parting view of Ofcom chief... we hate jokes on the disabled

Bad language once got TV viewers irate, inciting calls to broadcasting switchboards. But now there is a worse offender, says retiring head of the media watchdog, Ed Richards
A look back at fashion in 2014: Wear in review

Wear in review

A look back at fashion in 2014
Ian Herbert: My 10 hopes for sport in 2015. Might just one of them happen?

Ian Herbert: My 10 hopes for sport in 2015

Might just one of them happen?
War with Isis: The West needs more than a White Knight

The West needs more than a White Knight

Despite billions spent on weapons, the US has not been able to counter Isis's gruesome tactics, says Patrick Cockburn
Return to Helmand: Private Davey Graham recalls the day he was shot by the Taliban

'The day I was shot by the Taliban'

Private Davey Graham was shot five times during an ambush in 2007 - it was the first, controversial photograph to show the dangers our soldiers faced in Helmand province
Revealed: the best and worst airlines for delays

Revealed: the best and worst airlines for delays

Many flyers are failing to claim compensation to which they are entitled, a new survey has found
The stories that defined 2014: From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions

The stories that defined 2014

From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions
Stoke-on-Trent becomes first British city to be classified as 'disaster resilient' by the United Nations

Disaster looming? Now you know where to head...

Which British city has become the first to be awarded special 'resilience' status by the UN?