Breach of s33 Environmental Protection Act 1990

Section 33 is one of the most prosecuted offences under the of the Environmental Protection Act 1990, it covers all manner of depositing of waste from small scale ‘fly tipping’ to industrial scale waste disposal.

The Environmental Protection Act was enacted to comply with the European Union’s Waste Framework Directives, and amidst accusations that Britain was the ‘dirty man of Europe’. The Act regulates how waste is controlled and managed, and a failure to follow parts of the Act will amount to a criminal offence.

In this article I will be looking at section 33(1)(a) of the Act. This sub-section creates three separate offences, namely

• Depositing controlled or extractive waste;
• Knowingly causing controlled or extractive waste to be deposited;
• Knowingly permitting controlled or extractive waste to be deposited;

in or on any land, unless an environmental permit authorising the deposit is in force and the deposit is in accordance with the permit.
The Divisional Court held in Thames Water Utilities v Bromley Magistrates’ Court that in relation to the first case, ‘depositing’ also encompasses an unintentional escape of waste. In R v Metropolitan Stipendiary Magistrate, ex parte London Waste Regulation Authority, the Court stated that ‘deposit’ applies to temporary deposits as well as to permanent ones.
S33(1)(a) creates a strict liability offence for the actual deposit of the waste, the latter two parts of the section require knowledge. This must be proven by the prosecution and relates to either causing the waste to be deposited (for example by asking someone to deposit it) or permitting the waste to be deposited (for example by letting someone put the waste on your land).

Possible sentences for breach of s33 Environmental Protection Act

The possible sentence for a breach of s33(1)(a) depends on whether your matter is dealt with by the Magistrates’ Court or the Crown Court.
If your case is dealt with by the Magistrates’ Court, you may be liable to a sentence ranging from a fine (up to an unlimited value) to imprisonment for 12 months.
If the Crown Court deals with your case, the possible sentences range from a fine (up to an unlimited value), to imprisonment for 5 years.
When the Court is considering what sentence to pass for this offence, they will consider whether you deliberately, recklessly, or negligently breached the law. They will also consider what material was deposited, its effect on the environment and others, the costs of clean-up or restoration.

Proceeds of Crime

In addition to a fine or prison sentence, a confiscation order may be made upon conviction. An order requires you to pay back any ‘benefit’ that has accrued from the commission of the crime. Benefit has a wide legal definition and does not merely relate to profit but to any pecuniary turnover or advantage for example by way of evaded permit fees or turnover generated from the disposal of the controlled waste. 

In serious cases, the ‘criminal lifestyle’ provisions may apply. In this situation you may need to account for any property which passed through your hands in the six years prior to the date you are charged. The burden will be on you to prove that you used legitimate earnings to obtain the property, and if you fail to do so it may be subject to a confiscation order.
Quentin has advised clients in many areas on the Proceeds of Crime Act, including in a recent matter before the Lord Chief Justice in the Court of Appeal. He would be happy to answer any questions you may have about potential confiscation orders.

What is ‘waste’?

Section 33 of the Environmental Protection Act applies only to deposits of ‘controlled waste’. The definition of ‘waste’ is found in Article 3(1) of Directive 2008/98/EC of the European Parliament and of the Council on Waste. It encompasses ‘any substance or object which the holder discards or intends or is required to discard’. 

It is the element of ‘discarding’ which the European Court of Justice has consistently adopted as the touchstone of the definition of waste. Whether the substance or object has been discarded is depends on the application of what the Courts have called ‘an opaque and extremely difficult area of law’, and unhelpfully, the European Court of Justice has not developed a practical definition of ‘waste’. However certain defining points can be drawn from the authorities.

To begin with, material does not cease to be waste merely because it has come into the hands of someone who may intend to put it to a new use. This issue has often arisen where material from one construction job has been left at a site to be used in another project. In R v W, C and C the Court of Appeal stated that the question of reuse – even immediate reuse – could not be determinative of the status of the material. Rather, having become waste it remains waste unless something happens to alter that.

Equally, it is irrelevant that a holder of waste does not believe that it is ‘waste’. In essence the position of the European Court of Justice as stated in Palin Grant Oy, is that the holder’s subjective intention is overridden by objective factors – primarily the aims of the Waste Framework Directive.
These objective factors were elaborated upon in guidance given by Carnwath LJ (as he then was) in OSS Group Ltd v Environment Agency, where the purposive interpretation of ‘discard’ was followed. He stated that

The term ‘discard’ must be interpreted in the light of the aims of the [Waste Framework Directive], and of Art. 174(2) of the [Treaty Establishing the European Community], respectively:

(a) The protection of human health and the environment against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste: and

(b) Community policy on the environment, which aims at a high level of protection and is based on the precautionary principle and principle that preventive action should be taken…

Drawing on this purposive interpretation, in R v Jagger several objective factors were accepted as being relevant to a jury or tribunal’s consideration of whether material was ‘waste’. They were

• Whether the deposit of the material created unacceptable risks to the environment or of harm to health. If so, it was likely to be waste;
• Its suitability for use without further treatment;
• Whether the holder of the material can demonstrate that the material will actually be used and that the use is not just a probability but a certainty;
• The quantity of material. Particularly, the material should only be used in the quantities necessary for that use and no more. Use of an excessive amount of material will indicate that it is being disposed of and is waste. 

Pulling all of the above together, we can see that the Courts do not define ‘waste’ restrictively and their purposive approach may leave the holders of waste liable despite and settled intention on their part to reuse, or a genuine belief that the material was not ‘waste’. Quentin is well used to dealing with environmental matters involving complicated and fact-specific areas of law, and would be happy to advise you on the specific facts of your case.

What is controlled waste?

Section 33 of the Environmental Protection Act applies only to ‘controlled’ waste, which means household, industrial and commercial waste. Schedule 2 of the Environmental Permitting Regulations 2016 sets out waste to which s33(1)(a) does not apply if various conditions are met. Specified materials in certain quantities that are used for the likes of construction, manufacturing, fertilisation, fuel, cleaning, and scrappage fall within this exception. For example, up to 1,000 tonnes of soil and stone waste may be deposited for use in construction, and 5 tonnes of lion faeces and 30 tonnes of waste rubber may be deposited for use in manufacturing finished goods.
To benefit for an exemption under Schedule 3 certain other conditions may also need to be met, including a requirement of secure storage for the waste, and restrictions on the length of time that the waste may be stored. If you are unsure as to which category a certain type of waste falls you should seek legal advice.

What does s33 of the Environmental Protection Act mean by ‘knowingly’?

The word ‘knowingly’ relates to knowledge of the deposit, and not to knowledge as to the existence and scope of a licence. In essence, it is no defence to a charge under section 33 to say that you were not aware that the licence did not permit the deposit of certain waste. 

The Courts do not require direct evidence that you knew, and may infer your knowledge of a deposit. For example in Shanks & McEwan (Teeside) Ltd v. Environment Agency, a company operated a site for the reception and deposit of controlled waste. The terms of their licence prohibited the offloading of the controlled waste until a note indicating the location of the deposit tank was issued. Controlled waste was offloaded without such a note. Whilst the company had no knowledge of that particular deposit, the Divisional Court held that their general knowledge of deposits taking place on the land sufficed for them to infer the company’s knowledge of this particular deposit.
In Kent County Council v Beaney, the respondent was held to have knowingly permitted the deposit of controlled waste on his land. The Court drew on the proximity of the deposits to his house, the frequency of the deposits, and the fact the deposits were made by lorry-mounted skips, and held that these facts gave rise to an inference that the respondent knew what was occurring and that he was permitting it to occur.

Statutory Defences to breach of s33 Environmental Protection Act

The prosecution must prove that the terms of s33 are made out, but even if they do there are two statutory defences to s33 breaches, both of which are set out in s33(7). 

It is a defence for you to show that you took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. This is a fairly narrow defence, and in the industrial sector normally rests upon whether you had in place specific methods of working, or made detailed enquires as to the nature of each deposit of waste to be made on the land.

This is a determination that is highly fact specific, and which may rest on multiple factors such as the size of the land, the nature of a company’s business, the presence of the holder, or the procedures and workflows put in place by an organisation.

It is also a defence to show that the deposits were made in an emergency to avoid danger to human health in a case where

• you took all steps as were reasonably practicable in the circumstances for minimising pollution of the environment and harm to human health; and
• you furnish the appropriate waste regulation authority with details of the acts as soon as reasonably practicable.

In Waste Incineration Services Ltd v Dudley Borough Council, the Divisional Court stated that whether a situation was an ‘emergency’, is something to be decided objectively, and not from the point of view of the offender.

The wording of both statutory defences means that they entail a reverse burden of proof. In most criminal cases the burden of proof rests on the prosecution to prove the offence as well as to disprove defences put forward. This must be done to the standard of beyond reasonable doubt or so that the jury are sure. Some specific statutory defences state that it is a defence for the defendant ‘to show’ something. This moves the legal and evidential burden on to the defendant to demonstrate, on the balance of probabilities that the defence is made out. In these circumstances it is essential that defence evidence is properly gathered and preserved as without it the defence can be difficult to make out.

In addition to advising on breaches of section 33 before the Courts, Quentin finds that prevention is often better than cure, and would be happy to advise you or your organisation on ways to reduce any risk of potential breaches of section 33.

A conviction of an offence under section 33 Environmental Protection Act could lead to serious consequences. If you are charged with this offence, you should seek specialist legal advice as soon as possible. If you find yourself in such a position you may contact barrister Quentin for an expert view.