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.