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Court of Appeal Says ‘no’ to Dual Regulation

14 March 2017

Court of Appeal Says ‘no’ to Dual Regulation Summary: Recycled Material Supplies Ltd. argued that two regulators could not, and should not, regulate the same activity simultaneously as this creates uncertainty for the operator as well as for the regulators.

Recycled Material Supplies Ltd. argued that two regulators could not, and should not, regulate the same activity simultaneously as this creates uncertainty for the operator as well as for the regulators. 

Slater and Gordon Solicitor: Anna Willetts is a senior associate solicitor in the regulatory and environmental team at Slater and Gordon Lawyers in Milton Keynes.

What Happened: Recycled Material Supplies Ltd. was charged with two offences of having an un-sheeted lorry laden with bricks, tiles and concrete leaving their recycling site.

This activity breached a ‘Part B Mobile Plant Environmental Permit’ which was issued by the London Borough of Newham. The local authority issued this permit for the crushing and screening of bricks, tiles or concrete by mobile plant as a ‘Part B activity’ under the then Environmental Permitting Regulations 2010.

The crushing and screening plant was, however, also regulated by the Environment Agency and subject to a bespoke Environment Agency Permit. The Environment Agency Permit allowed them to store and process a variety of construction, demolition and excavation wastes including bricks, tiles and concrete.

Recycled Material Supplies Ltd. argued that because the waste activities undertaken at the site comprised of a broader waste operation which was subject to regulation from the Environment Agency, that the local authority should not have issued its permit or tried to impose conditions on their recycling activities. 

How Slater and Gordon Helped: The client had previously been advised to plead guilty to 12 charges. We advised the Recycled Material Supplies Ltd. to plead ‘not guilty’ at the outset to the 12 offences it faced and elected for a Crown Court trial. 

This meant that we would have access to the Court of Appeal. We knew that the Crown Court judge would not accept our legal argument that dual regulation should not take place and that the Local Authority Permit was invalid. 

We then advised the client to plead guilty to two of the 12 offences because the local authority offered no evidence for 10 of them. With the judge having ruled against us in the legal argument, this meant that we had no defence and opened up our route to the Court of Appeal.  We knew that if (and when!) we were successful in the Court of Appeal, these convictions would be quashed and the fines repaid.

We applied for permission to appeal the decision which was refused by the single judge based on a paper ruling. At this point, we advised our client to continue to fight the matter, and go to the full court to apply for ‘leave to appeal’ or permission to appeal the decision. The hearing at the full court had three judges listening to the submissions as to why the decision should be appealed. Within the first 10 minutes of the full court hearing, our client was granted leave to appeal as the judges said the matter was “of great significance to the waste industry and should be heard.” 

We supported and advised the client and the company directors throughout the matter which lasted for almost two and a half years.

Decision: The Court of Appeal ruled in favour of Recycled Material Supplies Ltd. Ruling that the Local Authority Permit was invalid effectively said ‘no’ to dual regulation by the Environment Agency and a Local Authority. 

The convictions were quashed and the fines and costs returned to our client.

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