Waste4Fuel or waste for fools?

Professor Robert Lee | 4 years ago

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Contempt proceedings

The Environment Agency has failed in its attempt for a committal for contempt against a Kent waste company, Waste4Fuel, and its directors following a hearing in the High Court in London and a judgment handed down on 21 July 2014: see The Environment Agency v Hughes and Others [2014] EWHC 2484 (QB). The charge of contempt followed the issue of an injunction and the firm’s failure to comply with an order to install fire breaks and separate areas for new waste at a site located at Cornwall Drive in Orpington.

In the local press, a resident in Cornwall Drive said:

I absolutely cannot believe it. I don’t know how this has happened – it doesn’t make sense. The law doesn’t seem to protect people like us. Why doesn’t the judge come down here and see what it’s like for himself.

It was said that the fumes caused by repeated fires at the site caused significant stress among local residents for over two years: “Some claim they haven’t opened a window in that time, while others say the continuous stench has made them physically sick.” The Daily Mail has posted photographs and a video clip showing the waste towering above houses immediately alongside.

Breach of permit

Waste4Fuel collects and sorts a large variety of waste including tyres, plastics, cardboard, metals and paper. The material is supposed to go for processing into refuse derived fuel (RDF). However thousands of tonnes have accumulated on the site and the environmental permit for the site had been suspended in April, 2013 because of the quantity of the waste and the conditions of its storage. The company had been given a date by the environment Agency of 1 May 2014 to remove all combustible waste from the site. But this date was not met and as recently as June 2014, the fire service were called to quench a fire on the site.

The Environment Agency does seek committals for contempt for breach of an injunction, usually as a last resort when all other attempts have failed: see for example Environment Agency v MacNaughton. Here the company had recently changed hands being run by Shelley Hurst, who was brought in as sole Director, by Jonathan Beckson, a site manager, employed by a separate company, Recoverable Energy Solutions Ltd, to replace the first defendant, Bryan Hughes, who resigned in February 2014. Shelley Hurst has no previous experience in the waste industry. The Environment Agency made a committal application against all of these parties and the company itself.

In court, the company said that the only way in which it could comply with the order to remove the waste was by raising funds through more waste collection which would be brought to the site. It applied to increase the throughput at the site from 75 to 200 tonnes a week. The Environment Agency unsurprisingly opposed this application before the High Court and equally unsurprisingly it was successful in opposing this increase.

Application refused

It may seem surprising, however, that, in these circumstances the applications of the Environment Agency were refused.  In addition to the clearance of all combustible waste, restrictions on waste acceptance, provisions for inspection and site security, the injunction contained the following provision at [15]:

All waste accepted onto Site is to be stored in a separate area, clearly identifiable and segregated from other wastes, specifically created for the storage of wastes accepted onto Site for treatment in accordance with the terms of this Order.

This provision appears to have been fatal to the Environment Agency’s case since Sir David Eady, a retired High Court Judge, sitting again in that capacity, stated that if an injunction “is to be enforceable by process of contempt, then an order of the court must be clear and unambiguous.” The Judge singles out this provision of the injunction, pointing to ambiguities in relation to the duration of the injunction and the precise application of its final condition in terms of practical questions such as the wastes to which it applied, the timing of storage and the areas to be segregated out. On the first issue of duration, the injunction was to last until a further order was issued, but this was said to be as uncertain as the other conditions by the Judge, who held at [26] that:

There is too much uncertainty, as to when and how the requirement in paragraph 1(viii) was to be complied with, for it to be enforced by process of contempt. Moreover, the alleged breach set out in the application notice is too imprecise to be capable of proof beyond reasonable doubt. The nature of the breach alleged is simply too vague.”

It might be thought that when the injunction was granted, the court had thought that its provisions were sufficiently certain to be enforced, but the decision in this case suggests that any ambiguity  in the drafting of provisions of an injunction may negate the later enforcement opportunity allowed by contempt proceedings for its breach. In a case as egregious as this, in terms of breaches of environmental protection laws, this is unfortunate. The assurances of Sir David Eady that the outcome of the case in no way “vindicates the conduct of any of the Defendants” must have sounded somewhat hollow to the residents of Orpington.

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.