Court of Appeal dismisses legal challenge over confiscation orders and costs of removing contaminated waste

The Court of Appeal has rejected a case in which two men argued that a Crown Court judge miscalculated confiscation orders made following a prosecution by the Environment Agency.

Dean Ryder and Andrew Green had been convicted by magistrates of environmental offences, including under Regulation 12 (1) (a) and Regulation 38 (1) (a) of the Environmental Permitting (England and Wales) Regulations 2010 and related provisions.

They argued that when a Crown Court made the resulting confiscation orders, the recorder should not have included as a pecuniary advantage their avoidance of paying to remove contaminated waste stored on a site they owned.

Mr Ryder and Mr Green said this benefit did not result from the particular conduct with which they had been charged.

They also argued that the confiscation orders were disproportionate. These were £138,002 for Mr Ryder and £121,422.72 for Mr Green.

The latter raised an additional point that the recorder erred in law by including in the calculation his half-share in a jointly owned property despite there being a charge in favour of a Mrs Greenwood-Slater as security for a loan of £125,000 allegedly made by her.

In The Environment Agency, R (On the Application Of) v Ryder & Anor [2020] EWCA Crim 1110 Lord Justice Davis said the two men were owners of a site at Goodwin's Yard, near Barnsley of which their company, Grantscope, was the tenant.

The Environment Agency in April 2012 revoked Grantscope’s environmental permit after it failed to comply with an earlier notice, and required it to return the site to a satisfactory state and to remove all waste by 10 July 2012. It also failed to do this.

An appeal against the revocation notice was dismissed in November 2012 but work continued at the site and the waste was not removed.

Both appellants argued that the waste had in the first instance been lawfully deposited.

The Environment Agency said the appellants had committed an offence as they allowed the site to be used for a waste operation without an environmental permit.

That the waste had originally been lawfully deposited was irrelevant as they had not removed it as required.

Davis LJ said: “We are of the view that the appeal on the main issue must be dismissed.

“The appellants themselves simply had no environmental permit at all at the relevant times.”

He said this meant they had no entitlement to continue to store the contaminated waste on the site.

The judge said that holding that saving the costs of removal otherwise required in an environmental context can be a pecuniary advantage was consistent with decisions in previous cases and “we also found rather puzzling [the appellants’] attempted differentiation in this context between ‘avoidance' and ‘evasion’”.

He said that the appellants had spared themselves the costs of removing the waste, and “once that was established, whether one styles it avoidance or evasion merely becomes, for these purposes, a matter of words”.

But the appeal judges found the recorder should not have made a decision on including the value of the charge in Mr Green’s assets without establishing whether or not it was genuine.

They remitted this matter to the Crown Court.

Mark Smulian