PUBLIC HEALTH — Pollution, control of — Waste — Environment Agency granting defendant pollution prevention and control permit — Condition of permit prohibiting emission of odours from landfill facility at levels likely to cause pollution “as perceived by an authorised officer of the Agency” — Whether condition usurping fact-finding role of court — Whether condition invalid or ultra vires

Environment Agency v Biffa Waste Services Ltd

QBD: Pill LJ and Tugendhat J: 12 December 2006

A condition of a pollution prevention and control permit issued by the Environment Agency which prohibited the emission of odours from a waste management facility at levels which were likely to cause pollution “as perceived by an authorised officer of the Agency” was neither invalid nor ultra vires.

The Divisional Court so held when allowing the Environment Agency’s appeal by way of case stated against the decision of District Judge Crabtree of 4 April 2004 sitting in the North and East Hertfordshire Magistrates’ Court dismissing charges brought by the Agency against the defendant, Biffa Waste Services Ltd for breaches of a condition of their pollution prevention and control permit.

In order to operate its waste landfill facility the defendant had a pollution prevention and control permit granted by the Agency. Condition 2.6.12 of the permit prohibited the emission of odours from the facility at levels which were likely to cause pollution “as perceived by an authorised officer of the Agency”. The district judge dismissed charges brought by the Agency alleging that the defendant failed to comply with condition 2.6.12 contrary to reg 32(1)(b) of Pt 6 of the Pollution Prevention and Control Regulations (England and Wales) 2000 and s 2 of the Pollution Prevention and Control Act 1999.

PILL LJ said that the question for the opinion of the High Court was whether the district judge had been correct to rule that by the inclusion of the phrase “as perceived by an authorised officer of the Agency” condition 2.6.12 was invalid or ultra vires on any or all of the following grounds: (i) it offended the principles of certainty required for the elements of an offence by domestic law and/or art 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms; (ii) it had the effect of usurping the fact-finding and adjudicative roles of the court by bestowing on an authorised officer the functions of establishing the relevant facts (according to that officer’s subjective judgement) and obliging the court to convict whenever it was satisfied that the officer honestly perceived those facts; (iii) it resulted in a condition which extended beyond the object of the power provided for at reg 8 of the Landfill (England and Wales) Regulations 2002. His Lordship did not accept the submission that condition 2.6.12 was ultra vires or that it required the court to convict upon the evidence of an officer of the Agency. The condition did not offend against the principles of clarity required by the criminal law. The fact-finding exercise was one which the court was entitled and required to make on the basis of the evidence presented. The officer of the Agency’s evidence was a starting point but the power and the duty of the court to perform the usual function of forming a judgment on the basis of all the evidence before it was not affected. The condition was neither invalid nor ultra vires.

TUGENDHAT J agreed.

Appearances: Mark Harris (Solicitor, Environment Agency) for the Agency; Ian Croxford QC and Tom de la Mare (Fairweather Whillis and Toghill) for the defendant.

Reported by: Elanor Dymott, solicitor