Environmental permits and confiscation implications

8 October 2020

In R (The Environment Agency) v Dean Andrew Ryder, Andrew Lawrence Green [2020] EWCA Crim 1110, the Court of Appeal held that it was lawful for a confiscation order to be imposed on waste management site owners following their conviction for environmental offences. Whilst the trial judge might have erred in determining the available amount, he had not done so in identifying the relevant benefit figure.


The case provides a salient lesson for those operating waste disposal businesses that an initial failure to take seriously an enforcement notice from the Environment Agency (“EA”) could have very costly consequences.

Background to the appeal

Ryder and Green were owners of a site called Goodwin’s Yard. One of the tenants of that site, Grantscope Limited, was involved in the receiving of waste from skips for storage and treatment and obtained an environmental permit as a regulated facility. Grantscope Limited was controlled by Ryder and Green.

Following an investigation into activity on the site, on 7 February 2012 the EA issued a notice to Grantscope Limited requiring it to take remedial action. When this was not done, the EA revoked the company’s environmental permit from 10 May 2012 and required it to remove all waste from the site and return it to a satisfactory state by 10 July 2012. The revocation did not in fact take effect until 20 November 2012, after an appeal against the notice was made and refused. The remedial works to remove the waste were not carried out. On 3 September 2012 Grantscope was placed into liquidation.

Prosecution and confiscation order

Ryder and Green were charged with offences under the Environmental Protection Act 1990 and Environmental Permitting (England and Wales) Regulations 2010 of operating a regulated facility and depositing controlled waste without the benefit of an environmental permit. Ryder and Green were convicted of three of the four charges. It was found that the process they used after the environmental permit was revoked – namely operating a ‘trommel’ to treat contaminated waste stored at the site – created a product known as ‘fines’. There was evidence that these ‘fines’ may still be contaminated and therefore could not be classified as soil. As such it was ‘waste’ which required a permit, which the defendants did not have. On 9 October 2018 they were sentenced to 12 months’ imprisonment, suspended for 18 months with a requirement to complete unpaid work.

Confiscation orders of £138,002 and £121,422.72 were made against Ryder and Green respectively, representing the costs the appellants had avoided by continuing to act as a facility after the environmental permit had been revoked.

A failed appeal

On appeal against the confiscation order, Ryder and Green argued that the Judge had been wrong to calculate the benefit figure in the confiscation order according to the costs avoided; at the very most any benefit figure could be limited to the proceeds of the sale of trommol fines as topsoil. It was also argued, for the purposes of s.6(5) of the Proceeds of Crime Act 2002 (“POCA”) that the confiscation order was disproportionate. The EA contested that the confiscation order was properly made; by failing to remove the waste from the site the individuals had obtained a pecuniary advantage as per s.76 POCA.

The court unanimously dismissed the appeal. Considering they had no lawful environmental permit in place after 10 May 2012, they were not entitled to continue to store the contaminated waste on the site. Consequently, by not incurring the cost of removing the waste from the site, they gained a ‘benefit’ within the context of s.76(4)-(5) POCA, ‘as a result of or in connection with’ the offence (operating a regulated facility without the benefit of an environmental permit). The court also dismissed the argument that the order was in any way disproportionate.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the author

Sophie Wood is a Senior Associate with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.

 

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