NI: Company and its directors fined over £40,000 for unlawful deposit of waste

The Crown Court for Northern Ireland has fined a company and two of its directors £40,000 and £1,000 each respectively for the unlawful deposit of waste.

The offences related to land owned by Thomas and Gary Bates, directors of Ace Bates Skip Hire Limited, on which they had received permission to carry out in-filling, on the basis that the land would be reclaimed for agricultural purposes.

In May 2007, the owner of the adjoining land, Mr Douglas Carson, hired a private investigator due to concerns he had regarding unauthorised activities and encroachment.

It emerged that materials had been deposited on Mr Carson’s land. Save for the exemption which was obtained for in-filling on the defendant’s land, the site was not licensed to receive waste.

The Court noted that the defendant company was issued with a waste management licence by the Northern Ireland Environment Agency on 20 November 2008 for a waste transfer station and materials recovery facility.

It seemed clear that this was the base for the defendant company’s business.

As part and parcel of the waste management licence, a representative of the company had to demonstrate technical competence to obtain a certificate. Thomas Bates was issued with the relevant certificate dated 10 October 2008 in relation to the management of waste management operations. The licence was thereafter transferred between other representatives of the company.

The defendants pled guilty to the unlawful deposit of waste and keeping controlled waste in a manner likely to cause pollution.

In considering the appropriate sentence, the judge noted that in relation to the depositing of waste, there were three issues to consider: the volume of waste, the location of the waste, and the composition of the waste.

It had been agreed that the quantity of waste deposited on the lands belonging to Douglas Carson during the indictment period was 1985.5 metres cubed or 1985.5 tonnes, and between 13,246 and 27,159 metres cubed/tonnes had been deposited on the defendant’s own land.

In terms of the location, it was found that land had been deposited within the exemption area, but also outside of it, and on Mr Carson’s land.

In terms of the composition, it was found that 94% of the material was unlikely to cause pollution. The charge in relation to pollution related to the company only, and followed observations of witnesses of fires burning on the site and on Mr Carson’s land.

The Court then considered the circumstances of the defendants. It was noted that the company continued to trade and remained a small company in profit.

It was also noted that the company had one previous conviction for keeping controlled waste, dating from 2005 and relating to the same site.

In relation to sentencing principles, the case was distinguished from the recent case of The Queen v John Paul Braniff 2016 NICA 9, which found that the custody threshold was crossed where there was deliberate conduct causing significant adverse effects or damage to air, water quality, amenity value or property, significant adverse effects or damage to health and quality of life, animal health or flora or a risk of more serious harm.

In the present case, the prosecution accepted that the actions were not deliberate and that therefore the custody threshold was not crossed.

Applying the principles of the Sentencing Council Guidelines for England and Wales, all counsel suggested that the case came within either the reckless or negligence category in terms of culpability.

The Court decided to consider first the order for confiscation, second the costs under the order for confiscation, and third the appropriate sentences.

In relation to the confiscation order, the parties had agreed a joint benefit figure of £200,000 and a joint recoverable amount of £200,000. This was approved by the Court, and it was noted that there had also been agreement that the defendants should pay the costs.

It was noted that in an agreement in relation to the confiscation order that the defendants Thomas Bates and Gary Bates undertook not to act as directors of the defendant company or any other company involved in the management of waste for a period of three years from the date hereof.

Furthermore, the defendants Thomas Bates and Gary Bates agreed not to undertake or attempt to undertake the role of a technically competent person in relation to any waste management licence for a period of three years from the date hereof.

The judge then turned to sentencing.

It was found that Ace Bates Skip Hire Ltd. had acted recklessly, and had committed serious environmental offences. However, it had also cleared the site and made it safe, and had cooperated with the investigation and pled guilty.

The company was sentenced to a monetary penalty of £40,000, taking into account a third discount for the guilty plea.

In relation to Thomas and Gary Bates, the judge noted that it was a family company and that the defendants had already been punished by the significant financial penalties levelled against their company.

The judge accepted that the defendants were committed to avoiding a repeat of the offences, and therefore fined each £1,000.

It was noted that both defendants had agreed not to be directors for a period of time and that they had signed a memorandum of understanding which set out their appreciation of environmental waste issues and their on-going commitment to compliance.

  • by Rachel Killean for Irish Legal News
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