Doonin Plant Limited+gary Doonin V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Justice Clerk,Lord Bracadale |
| Judgment Date | 25 February 2014 |
| Neutral Citation | [2014] HCJAC 26 |
| Court | High Court of Justiciary |
| Date | 25 February 2014 |
| Docket Number | XC38/13 |
| Published date | 08 April 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2014] HCJAC 26 | |
| Lord Justice Clerk Lord Bracadale Lord Wheatley | Appeal No: XC38/13 and XC736/12 OPINION OF THE COURT delivered by LORD BRACADALE in APPEAL by DOONIN PLANT LIMITED and GARY DOONIN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Jackson QC, Mackintosh; John Pryde & Co, Edinburgh
Respondent: Niven-Smith AD; the Crown Agent
25 February 2014
Introduction
[1] On 25 February 2014 we refused the appeals against conviction by each of the appellants and the appeal against sentence by the first appellant. We indicated that we would give written reasons which we now do. It is convenient in this opinion to refer to the first appellant as "the company" and the second appellant, who was a director of the company, as "Mr Doonin".
[2] The company and Mr Doonin were indicted for trial at the Sheriff Court at Livingston on charges under section 33(1) of the Environmental Protection Act 1990. The indictment contained eight charges: a set of four charges against the company; and a similar set of four charges against Mr Doonin. On 12 September 2012 after trial the company was found guilty of charge 2, namely, keeping controlled waste in a manner likely to cause pollution of the environment or harm to human health, and charge 4, namely, keeping controlled waste without a waste management licence. Mr Doonin was found guilty of charges 6 and 8. The charges of which the company was convicted were in the following terms:
"(02) On various occasions between 17 January 2010 and 11 February 2010, both dates inclusive, at the former Woodend Colliery, Mill Road, Armadale, West Lothian, you Doonin Plant Limited did keep controlled waste, namely, a car tyre, cardboard, carpet, carpet underlay, chipboard, clothing, electrical wiring, electrical components, electrical circuit breakers, food packaging (plastic), insulation material, laminated paperwork, metal mechanism, metal wire, newspaper, plasterboard, plastic bottles, plastic buckets, plastic ducting, plastic hosing, plastic sheeting, plastic bags, plastic telephone handset, plastic video tapes, postal mail, paperwork, scissors, sofa cushions and wooden planks with hinges in a manner likely to cause pollution of the environment or harm to human health, namely that you did keep said wastes on land or in land that was not lined with an impermeable liner or supplied with an appropriate leachate collection system or landfill gas extraction system, resulting in the likelihood of leachate high in levels of Biochemical Oxygen Demand and dissolved metals making its way to groundwater and/or to local water courses, and to the likelihood of landfill gas being produced and venting freely to air, causing offensive odour and resulting in the release to atmosphere of methane and carbon dioxide, thereby impacting on both local and global air quality;
CONTRARY to the Environmental Protection Act 1990, Section 33(1)(c);
(04) On various occasions between 17 January 2010 and 11 February 2010, both dates inclusive, at the former Woodend Colliery, Mill Road, Armadale, West Lothian, you Doonin Plant Limited did keep controlled waste, namely, a car tyre, cardboard, carpet, carpet underlay, chipboard, clothing, electrical wiring, electrical components, electrical circuit breakers, food packaging (plastic), insulation material, laminated paperwork, , metal mechanism, metal wire, newspaper, plasterboard, plastic bottles, plastic buckets, plastic ducting, plastic hosing, plastic sheeting, plastic bags, plastic telephone handset, plastic video tapes, postal mail, paperwork, scissors, sofa cushions and wooden planks with hinges, on or in said land otherwise than in accordance with a waste management licence in that you did keep the aforesaid controlled waste on or in said land;
CONTRARY to the Environmental Protection Act 1990, Section 33(1)(b)(i);"
Charge 6 against Mr Doonin was in similar terms to charge 2 and charge 8 was in similar terms to charge 4.
[3] On 13 December 2012 the company was fined £200,000 in cumulo on both charges and sentence on Mr Doonin was deferred in order for him to be of good behaviour and for his behaviour as a director of any other companies to be monitored.
The evidence
[4] The circumstances as they emerged in the evidence are summarised by the sheriff in his report. The company owned Woodend Colliery, a former colliery in West Lothian extending to approximately 55 acres upon which stands a bing. Neighbouring residents had complained to West Lothian Council about operations taking place at the colliery. They had seen large lorries loaded with waste material going to the colliery. One of these people, Mr Edward Grant, gave evidence that on 17 January 2010 he saw Doonin lorries dumping rubbish at the colliery and complained to the Council about the site. Another witness, Mr John Erskine, said that he saw Doonin lorries sitting at the entrance to the site over a period of days. On 22 January 2010 environmental officers from the Scottish Environment Protection Agency (SEPA) who were acting on information passed to them by West Lothian Council visited the colliery and discovered that a large amount of waste had been deposited and covered over with soil. After carrying out various investigations, they returned to the site on the 11 February 2010 when they marked out an area at the top of the bing which was not to be disturbed. On 16 March 2010 environmental officers from SEPA went to the site and dug a number of trenches using a mechanical excavator, which exposed a very large quantity of waste material.
[5] In April 2010 SEPA scientists collected samples of a liquid which had been produced at the site as a result of the effect of the water draining through the waste. This is known as "leachate". Evidence was given by scientists from SEPA as to the composition of the leachate which had been produced and as to the likelihood of gas similar to landfill gas being produced at the site. A landfill engineering specialist gave evidence as to the likelihood of waste products from the site being produced and contaminating surrounding land. A hydro-geologist from SEPA gave similar evidence.
[6] While the company accepted that it did not have a waste management licence, its position was that it did not require one because its activities were covered by an exemption to the requirement to have a licence (a "paragraph 13" exemption), and that this allowed it to manufacture a form of aggregate used in the construction industry called "6F2". In his evidence Mr Doonin said that the company was not storing any waste at the site, but was turning it very quickly into the 6F2 aggregate, and that under the relevant exemption it was legally permissible to use a certain amount of controlled waste as one of the components of the 6F2. In addition, the company claimed that none of its activities was likely to cause pollution.
Grounds of appeal
[7] After sifting and a hearing on an application under section 107 (8) of the Criminal Procedure (Scotland) Act 1995 leave to appeal was granted on grounds 7, 8 10 for the company and grounds 7, 8 and 9 for Mr Doonin. In addition, the company was granted leave to appeal against sentence.
Statutory provisions
Environmental Protection Act 1990
[8] Section 33 of the Environmental Protection Act 1990 (the 1990 Act), as it was in force at the relevant time in 2010, and so far as relevant for present purposes, provided:
"(1) Subject to subsection (2), (2B) and (3) below and, in relation to Scotland, to section 54 below, a person shall not-
...
(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of-
(i) in or on any land, or
...
except under and in accordance with a waste management licence;
(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.
...
(3) Subsection (1)(a), (b) or (c) above do not apply in cases prescribed in regulations made by the Secretary of State and the regulations may make different exceptions for different areas."
The Act provided a number of definitions. Section 75(2) defined "waste" as "any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard". Section 75(4) defined "controlled waste" as "household, industrial and commercial waste or any such waste". Section 29(3) defined "pollution of the environment" as:
"pollution of the environment due to the release or escape (into any environmental medium) from
(a) the land on which controlled waste is treated,
(b) the land on which controlled waste is kept,
(c) the land in or on which controlled waste is deposited,
(d) fixed plant by means of which controlled waste is treated, kept or disposed of,
of substances or articles constituting or resulting from the waste and capable (by reason of the quantity or concentrations involved) of causing harm to man or any other living organisms supported by the environment".
Section 29(5) defined "harm" for the purposes of section 29(3) as "harm to the health of living organisms or other interference with the ecological systems of which they form part". Section 29(6) defined the "disposal" of waste as including "its disposal by way of deposit in or on land".
Waste Management Licencing Regulations 1994
[9] Regulation 17 of the Waste Management Licencing Regulations 1994, as it was in force at the relevant time in 2010, and so far as relevant for present purposes, provided:
"(1) Subject to the following provisions of this regulation and to any conditions or limitations in Schedule 3, section 33(1)(a) and (b) of the 1990 Act shall not apply in relation to the carrying on of any exempt activity set out in that Schedule.
(5) In the case of an exempt activity involving the carrying out by an establishment or undertaking of the...
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