OPINION: Readers of letsrecycle.com may have read an article in January regarding convictions to do with a farm in Lincolnshire.
As the defence lawyers for one of the parties involved, we thought that readers may be interested to read about the case from our perspective and that of our client. The main headlines you read here are “nearly £100,000 goes to environmental charities” and in another publication: “Success for Agency in illegal waste site”.
The case highlights important procedural issues concerning how Enforcement Undertakings (EU) work. It also shows the need to scrutinise carefully the different levels of responsibility in a multi-party case.
Although the Environment Agency (the Agency) repeatedly rejected our EU offer, our client had the courage to stand its ground, including threatening judicial review. Thankfully this resulted in reconsideration by a senior Agency lawyer who agreed with us that an EU was the right result. The decision shows a common-sense approach which avoids the delays and costs of lengthy court proceedings.
Background
Our client, Earthborn Transport, is a family-owned business. It has provided haulage services in the East Midlands for the last 11 years. It was engaged in 2020 by a landowner to haul waste to his farm for the construction of a motocross track. The waste was excavated soils and concrete from a former airfield site not far away.
Our client did its due diligence in that it checked on the public register that the landowner’s site had an exemption in place for the project. It also checked that the exemption covered the waste types and codes which the landowner had requested and which it was collecting from the producer. Its waste carriers’ licence permitted it to carry the waste types. It was instructed by the landowner to bring the waste to the site and directed where to deposit it at the site entrance. That was the full extent of our client’s role.
The exemption allowed 5,000 tonnes of concrete waste, code 17 01 01, to be lawfully imported to the site plus 1,000 tonnes of clay soil, code 17 05 04 (i.e. 6000 tonnes in total). Our client delivered 1,400 of material to the site. Although this was well within the 6,000 tonnes limit, it transpired that the clay soil within the shipments exceeded the soils limit. Our client admitted this inadvertent breach, but that, of it itself, it was not a matter of any real environmental consequence. Four years later, our client was charged with illegally depositing waste at the site. Unbeknown to our client, other parties had been depositing waste in an entirely separate part of the landowner’s site (which is a large farm). However, the exemption applied to the entire farm and the deposits elsewhere meant that the 6,000 tonnes limit had been far exceeded, thereby invalidating the exemption completely.
Our client’s activity was a breach of the regulations, but (of itself) a relatively minor one. Its culpability was low and the environmental harm (if any) was negligible. It was not asked to remove the material by the Agency. Our client had no previous convictions and strong mitigation. Our view was that a prosecution was not warranted. However, the Agency’s starting point was to treat everything which had taken place at the farm over a number of years as a single case. The landowner and all of the different contractors he had used to bring waste to the land were all prosecuted together.
We offered the Agency an EU as an alternative to prosecution. We argued that it was essential for the Agency to draw a distinction between the different levels of culpability of the different operators, and also to look at the consequences of their individual acts.
What are Enforcement Undertakings?
EUs are a civil sanction which is an alternative to a criminal prosecution. They are designed for low level, low harm offences. The offeror must make amends, which involves either undertaking environmental remediation works or making a payment in lieu to a chosen environmental charity. The offeror also needs to show it has taken steps taken to prevent a recurrence, such as by making operational changes. There will also be an agreement to pay the Agency’s costs. This means that minor offences are kept out of overloaded criminal Courts and disposed of much more quickly. The financial benefit is targeted on a relevant environmental charity, whereas a Court fine just disappears into general government funds. In our view, very sensible, and akin to “restorative justice” which is being increasingly used for other criminal matters whereby offenders have to do something to benefit society or their victim, instead of just locking them up.
Sir James Bevan, ex-CEO of the Agency, also took this view when he commented to an EFRA committee in 2021: “One thing we are getting better at, and doing more of, is accepting EUs.”
He also described EUs to the committee as “a good outcome for the country and the environment”. This case seemed exactly the type of cases for which EUs were designed.
How do they work?
Well, this was how we thought they worked:
The offer is set out in writing in the EU Offer Form and submitted to an independent EU panel. We have been told in the past by the Agency that the panel convenes every month to consider the offers made and decide on acceptance or not.
This is the reality:
It turns out that the decision-making is not entirely independent of the investigation.
As a result of our legal challenge to the Agency’s decision, what we now know is that, under internal Agency guidance, an EU offer is assessed by the investigating officer and/or the lawyer instructed in the case. They are responsible for considering whether or not the offer should be accepted by the Agency. They complete a document called an “EU Assessment Criteria Form”, which sets out their recommendation, and they also draw up a decision letter which reflects their decision.
The recommendation of the investigating officer and/or lawyer is then reviewed by the independent panel whose role is simply to decide whether to “endorse” the local decision. The panel considers multiple applications at each meeting, and reviews only a short summary of each case.
What happened in this case
Our client’s first EU offer was rejected by the Agency, but our client wished to challenge the decision. By then, the case was already before the Magistrates’ Court. We explained the benefits of an EU to the District Judge and were granted a generously long adjournment to allow us time to seek a review of the decision.
The offer was repeatedly rejected. Our client escalated its challenge, through informal review, Stage 1 review and then a Stage 2 appeal (using the procedure established following the decision in Suez v Environment Agency). At every stage, the challenge was rejected.
We could not understand why the Agency was so set against the offer of an EU. For such a minor offence like this, it saves officers and lawyer’s time when we are told the Agency is short of resources, it saves Court time, and the Agency is guaranteed an agreed recovery of costs within 28 days, instead of running the risk of a Court giving a reduced sum (e.g. 70%). We particularly could not understand the decision as the Agency had accepted an EU offer from Severn Trent Water of £327,500 for polluting 1.7 km of a Gloucestershire river with raw sewage and killing fish – which may be viewed as causing slightly more harm to the environment than putting 400 tonnes of excess soil in a field.
We wrote to the Agency indicating that our client was prepared to pursue the matter by way of Judicial Review in the High Court. We offered, however, an alternative solution, namely that they reconsider the matter and allow us to submit a fresh offer. This was agreed with assurances that it would be a completely fresh panel.
We duly submitted a revised offer, (with a modest uplift in the charitable donation, in case the financial suggestion was not adequate) and were then greatly surprised that this offer was also rejected. Part of the reason we were given was that was part of “wider offending” – i.e. the other parties which the landowner was allowing onto the site. And of which our client had no knowledge. This is a bit like a burglar being prosecuted for stealing a phone and then being given a higher sentence because unbeknown to him another burglar broke into the same house four days later and stole three laptops and an iPad.
Environmental Information Regulations request and what this showed
At this stage we submitted an Environmental Information Regulations (EIR), requesting the minutes of the panel meeting, details of who was on the panel, and what information the panel was given. This showed:
- The panel meeting lasted just 20 minutes, which included our offer and several others.
- The panel was given a summary of our offer, which was drafted by the prosecuting lawyer and the OIC, and a recommendation by the prosecuting lawyer to reject the offer.
- One of the panel members had been on the previous panel, contrary to the earlier promise.
Reader – imagine our surprise when we saw all this.
Outcome
We felt that the results of the EIR did not show the Agency’s decision-making in a flattering light. After several months of repeated rejections, the Agency agreed that a further reconsideration was necessary. The case was referred to an independent, senior lawyer with the Agency who was able to give a “fresh eyes” reconsideration to the offer. The reviewer concluded that the offer should in fact have been accepted.
The local environmental charity has now been paid, the Agency has had it costs paid, and our client is not a convicted criminal. Even the Agency itself has hailed the outcome as a success, as the earlier article showed.
Since this case, the Agency has revised its Appeals guidance to say that it will no longer accept appeals against decisions to reject an EU offer. Whether that policy change is open to legal challenge will be a matter for another case, but it is perhaps a regrettable approach when (as this case shows) a proper “fresh eyes” review can result in an outcome which satisfies both sides and meet the public interest.
Lessons Learned
- For the operator, checking that an exemption had been registered did not prove to be enough to protect them from regulatory action. If the landowner is not complying with the terms of their exemption, it no longer has any legal effect and ignorance is no defence. A prudent step might be to ask the landowner to provide a simple written confirmation (perhaps in an email) that to the best of their knowledge and belief they are complying with the terms of the exemption.
- In a case involving multiple parties, it is essential to scrutinise each party’s responsibility separately. There is a fundamental difference in law between individual offences and cases of “joint enterprise”. Where offences are committed by multiple parties acting together for a common purpose, they are jointly responsible for all of the harm which results. However, where (as in this case) the parties have acted independently and in ignorance of each other’s actions, their legal responsibility is limited to their own acts.
- EUs are an effective way of resolving low culpability, low harm cases. At senior levels within the Agency, there is a clear recognition of their benefit. It is understandable that individual officers and reviewing lawyers may wish to see their hard work resulting in a case coming before the courts, but the bigger picture is that EUs allow a swift and effective way of resolving cases which may otherwise sit at the back of a long queue to be heard in our overburdened criminal courts.
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