Environment case Walker 1
Walker v Chelmsford City Council
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Keywords: investigation of offences – directors’ liability – written requests for information
Statute reference: Environmental Protection Act 1990; Environment Act 1995
The Facts
W was the director of three companies with similar names. These were JG Walker Ltd, JG Walker Groundworks Ltd and JG Walker Haulage Ltd. In December 2016 officers from Chelmsford City Council entered, without a warrant, Ashtree Farm Industrial Estate where the companies operated in Chelmsford.
One of the officers saw two workers using a mechanical digger to feed material into an incinerator. He suspected that an offence under section 33 of the Environmental Protection Act 1990 was being committed in that waste was being disposed of either without a waste management licence or in a manner likely to cause pollution of the environment or harm to human health. W was interviewed under caution but did not give clear answers as to which company was responsible for burning the waste.
In August 2017 the officer sent three written requests for information to W, under section 108(4) (j) of the Environment Act 1995. The requests asked whether W’s company had been responsible for the incineration. They were sent in identical terms to W as director of the three companies, except for the names of the companies. W failed to provide an answer. W was prosecuted by Chelmsford City Council and convicted in March 2019 at Colchester magistrates’ court of three offences under section 110 if the 1995 Act for failing without reasonable excuse to respond to a request for information. On behalf of W it was argued that the power to request information under section 108 could only be used in pursuance of powers of entry under that section. This argument was rejected at first instance. W appealed by way of case stated to the High Court which allowed the appeal, quashed the convictions and made the following points:
· The power to request information under section 108 was not exercisable independently from the power to enter premises. It only applied to a face-to-face request for information.
· Section 108 gave power to an authorised officer to require a person to answer questions with a limited number of other individuals being present and then to sign a declaration of truth.
· It unduly strained the terms of section 108 to suggest that it covered posing written questions that were to be answered in writing.
· The requirement of a declaration of truth reflected what would be necessary following an oral exchange, namely a record compiled by an authorised officer with confirmation of what had been said evidenced by a signature.
· The local authority was a relevant enforcing authority because it was a waste collection authority exercising its pollution control function. The investigation in the current case was into suspected incineration of controlled waste.
· The written requests were permissible. They were a straightforward request for factual information and were not an invitation to confess to unlawful conduct. A proper answer to the request would have identified which company was being investigated. It would not have established whether the incineration involved the disposal of waste in a manner which resulted in a criminal offence. The requests were not calculated to undermine the right of the relevant company to defend itself.
Comment
This case illustrates the complexity of environmental law and can be seen as an example of the technicalities of statutes resulting in successful appeals.
Section 108(4) of the Environment Act 1995 states a number of powers which can be exercised by investigators of environmental offences. Subsection 4 of that section provides, in summary, as follows:
… power to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation … to answer … such questions as the authorised person thinks fit to ask and to sign a declaration of truth of his answers.
The High Court judge is reported to have commented that he accepted that the court’s interpretation of this subsection might be considered as a partial impediment to the work of enforcing authorities by imposing a barrier to the investigation of environmental issues by a relevant local authority. It might, for instance, leave an authorised person with no choice but to enter a range of premises to perform his or her duties regarding pollution and flood risk, if this was believed to be necessary in order to exercise the power of requiring an individual to answer questions.
It has been commented that the decision of the High Court to allow the appeal reflected partly from a possible inconsistency between section 108 of the Environment Act 1995 and section 71 of the Environmental Protection Act 1990.
Under section 71 enforcement agencies have the power to enable questions to be put in writing. In relation to local authorities, section 71 applies only to the potential seizure of vehicles and is not generally applicable.
It seems that local authorities have no power to require written answers to their questions other than in vehicle seizure cases or when there is a power to enter premises.
A spokesperson for Chelmsford City Council is reported to have made the following comments:
· The ruling in the Walker case had significant ramifications for the ability of the Environment Agency and local authorities to combat waste crime, particularly when face to face visits to sites by regulators are carried out less frequently because of Covid 19 social distancing requirements.
· The council was lobbying the secretary of state for the environment to make new regulations to confer new powers on local authorities.