The case of Hyde and others v Simple Skips Ltd (High Court, 30 November 2017) reminds us of the regulatory pitfalls when proper attention is not paid to environmental permitting and waste legislation, and of how the tort of trespass can be used (as well as or instead of regulatory enforcement powers) in the context of removing unlawfully deposited waste.
The case centred upon a site in Ascot. Waste related activities had taken place there since about 1997.
A Mr Stephen Hyde purchased part of the site in 2008, followed by the remainder of the site in December 2010. He granted a tenancy of part of a limited, central part of the site to a company called Recycle Recycle Ltd. In June 2010, the Environment Agency (“EA”) granted an environmental permit to Recycle Recycle Ltd for the operation of the site as a household commercial and industrial waste transfer station, with treatment, for non-hazardous waste.
In 2012, Recycle Recycle Limited granted a licence to a company called Ecologique Limited to operate Recycle Recycle’s waste business at the site. Ecologique breached the conditions of the environmental permit held by Recycle Recycle with the result that the EA served an enforcement notice in March 2014. The Agency subsequently prosecuted Mr Ali, a Director of Recycle Recycle, in relation to the unlawful activity.
The waste unlawfully deposited by Ecologique Limited as it acted in breach of the permit needed clearing. To do this, Mr Ali (through another company, ITR Global Limited) entered into a fixed term licence (dated 23 May 2014) with Simple Skips of the limited central yard area of the site for waste recycling operations. The licence required Simple Skips to clear up some of the waste left by Ecologique Limited.
As Simple Skips was clearing waste, it discovered asbestos, the responsibility for which reverted to ITR Global Limited under the terms of the licence. This held the clearing process up. However, in October 2014 the EA transferred the permit for the site from Recycle Recycle Limited to Simple Skips Limited, and Simple Skips Limited started trading from the site shortly thereafter. Around this time, discussions started about whether Simple Skips could take over the remainder of the site, in particular a series of wooden bays and the “WEEE shed” (used for waste from electrical and electronic equipment).
Operational complexities quickly started to take their toll on Simple Skips. Local councillors and the EA became concerned. At the end of 2015, the EA suspended the environmental permit pending steps to be taken to bring the site back into compliance. The EA lifted the suspension in April 2016 but, very soon thereafter, discovered that approximately 40 roll-on roll-off containers of waste were deposited outside of Simple Skips’ licenced area. The Agency served a notice on Simple Skips under section 59 Environmental Protection Act 1990 requiring its removal. The notice was not complied with.
In February 2017 the EA revoked the environmental permit on the basis that Simple Skips was not a competent operator; had been in breach of the permit on numerous occasions and lacked technically competent management.
In October 2017 planning permission was granted for residential housing on the site. The cost of removing the waste from the site was estimated to be £4.4 million. ITR Global and Mr Hyde’s executors (Mr Hyde passed away in 2014) therefore initiated proceedings against Simply Skips and two individuals that were closely involved in Simply Skips’ operation in order to recover some of that cost, together with other losses that had been sustained.
- A claim for trespass by unlawful deposit of waste on part of the site that fell outside Simple Skips’ licenced area. The claim was for £605,840, representing the reinstatement costs in relation to waste deposited in that area in the final months of Simple Skips operation (but not the earlier months). This claim was allowed.
- A claim for £62,220 in unpaid licence fees arising out of an oral licence for the wooden bays which the Claimants said was entered into with the Defendants in late 2014. This claim was largely allowed. The court found on the evidence that an oral licence had been agreed during the course of the discussions in late 2014.
- A claim for £33,720 in unpaid licence fees under the written licence dated 23 May 2014. About a third of this claim was allowed.
- A claim under an indemnity in the written licence dated 23 May 2014 for the cost of clearing the licensed site (£111,200) and repairing the damaged bays (£55,000). This claim was allowed.
- A claim for misrepresentation for £19,200, arising from representations by the Defendants that asbestos had been found which then had to be laboriously hand picked by ITR Global. This claim failed.
- A claim for £105,000 in lost income from July 2016, when the Defendants left the site, to September 2016, by virtue of the site being unusable as a result of the deposited waste.
By way of observation, Simply Skips’ activities were subject to three tiers of regulation: the environmental permit, the written and oral licences; and the common law of tort. Any wrong step on its part was likely to be punished one way or another. Simply Skips fell well short of the high standards required of it and was punished, first by the EA which suspended and then revoked its environmental permit, and then by the claimants who sued under the licence(s) and in the tort of trespass.
The case is a reminder to all those operators involved in environmentally permitted sectors (and in particular the waste sector) of the need to follow permit requirements closely and, where their land is leased or licensed from another, to understand:
- what the landlord is allowing the operator to do, and where it is allowed to do it;
- the sanctions available to the landlord in contract where the operator falls outside these parameters; and
- the sanctions available to the landlord in the tort of trespass (quite independently of those available in contract) where the operator has brought unauthorised waste materials to the site.