Under the Environmental Permitting Regulations, environmental permits are, depending on the nature of activity or installation, issued by the Environment Agency or the relevant local authority. In broad terms, activities with higher environmental risks and more complex processes will tend to be regulated by the Environment Agency.
In the case of R v Recycled Materials Supplies Limited the court considered whether activities requiring an environmental permit could be subject to simultaneous regulation by both the Environment Agency and the relevant local authority. The Court of Appeal held that, on these facts:
- there was no scope for joint regulation of the activities requiring an environmental permit
- the local authority had no jurisdiction to issue an environmental permit or to impose the permit conditions
- the local authority’s subsequent prosecution for breach of conditions was therefore invalid.
While the court could not rule out the possibility of circumstances where an operation could be authorised under two environmental permits (one issued by the Environment Agency and the other issued by the relevant local authority), the court strongly implied that such circumstances would be rare and should not be encouraged.
This decision will be relevant to holders of environmental permits and those contemplating a permit application.
We set out the facts of the case in more detail and examine the key messages for permit holders and applicants.
The case – in more detail
Recycled Materials Supplies engaged in the crushing and recovery of construction and demolition waste at its East London site to produce aggregates, which it then sold back to the construction industry. To this end, it operated three items of plant at the site: two crushers and one screener (collectively the "Plant"). The Plant had the capacity to be mobile and be moved between sites, but in practice the Plant did not leave the East London site.
Waste received at the site included bricks, tiles and concrete and also a range of other materials.
Recycled Materials Supplies had authorisation under the Environmental Permitting Regulations for these activities from both the Environment Agency and the local authority (the London Borough of Newham):
- The "Authority Permit" authorised Recycled Materials Supplies to operate the Plant, specifically permitting it to carry out, the crushing, grinding etc of "bricks, tiles or concrete".
- The "Agency Permit" was broader, authorising Recycled Materials Supplies to carry out waste operations at the site. The types of waste that Recycled Materials Supplies were authorised to accept at the site under the Agency Permit were also broader than the materials provided for under the Authority Permit ( i.e. "bricks, tiles or concrete").
The local authority successfully prosecuted Recycled Materials Supplies in the Crown Court for breaches of conditions attached to the Authority Permit.
Recycled Materials Supplies appealed the Crown Court judgment on a number of grounds:
- There cannot be joint regulation of the same activity by the Environment Agency and the local authority.
- The site was really a waste management site that should be regulated by the Environment Agency, involving more than just processing tiles, bricks and concrete, and the local authority therefore had no jurisdiction to issue the Authority Permit or to seek to impose conditions on those activities.
- The specific condition that was purportedly breached (leading to prosecution) did not reasonably relate to the purpose for which the Authority Permit was granted.
- If the Plant was "mobile plant" (which was itself disputed by Recycled Materials Supplies) it was "waste mobile plant" (and therefore subject to regulation by the Environment Agency) and not "Part B mobile plant" which might have brought it under the jurisdiction of the local authority.
The court allowed the appeal on grounds 1, 2 and 4. Ground 3 was not addressed as it was held as only relevant where activities had been found to be governed by the Authority Permit.
Judgment turned on a careful consideration of where the activities in question fell in respect of the various installations and activities governed by the Environmental Permitting Regulations. The court commented in the judgment that the various provisions were "tortuous" and that related review was a "nightmare".
To summarise part of this review, Environmental Permitting Regulations separate certain activities and installations (including some narrowly defined waste operations) into categories referred to as Part A(1), Part A(2) and Part B. As a general principle, Part B installations and activities represent lower risk / lower harm / less intensive activities. The crushing, grinding etc of "bricks, tiles or concrete" is specifically designated as a Part B activity.
Generally speaking, broad waste operations are not subject to this separation into categories but are all regulated by the Environment Agency (unless otherwise exempted from the Environmental Permitting Regulations – a consideration not relevant here).
In this case, for the local authority to be the appropriate regulator under the Environmental Permitting Regulations, rather than the Environment Agency, it was necessary to establish both:
- that the Plant was "Part B mobile plant"
- that the waste operation that the Plant was engaged in was a Part B activity.
The court held that material being processed by the Plant was not limited to "bricks, tiles or concrete" but included many other substances. It held that, on the facts of this operation, the crushing etc. of bricks, tiles and concrete was not a separate or discrete operation.
Therefore, under the Environmental Permitting Regulations, this was not a Part B activity, which might have legitimately fallen under the local authority's jurisdiction (if carried out by Part B mobile plant), but a broader waste operation which came under the jurisdiction of the Environment Agency. The appeal was therefore successful on grounds 1 and 2.
The court did not entirely rule out the possibility of circumstances where an operation could be subject to joint regulation by Environment Agency and relevant local authority, however, the strong implication of the judgment is that such circumstances would be rare and should not be encouraged.
Ground 4 of the appeal was also accepted. If the Plant was indeed mobile plant, it was not "Part B mobile plant" as such plant was defined (in part) as being used to carry on a Part B activity and the activity in question was not a Part B activity.
Key messages for permit holders and applicants
It is important that applicants for environmental permits are aware of this case and prepare applications accordingly.
We are aware of cases for our own clients where an incremental expansion of the business has resulted in both local authority and Environment Agency control, and also cases where clients have both permits and registered exemptions. Quite understandably, this can lead to confusion when it comes to compliance.
Existing permit holders currently subject to joint regulation should reassess activities under their permits and consider whether consolidation under one regime is a viable proposition.