Ramesh Dewan Against The Fife Council
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2019] CSOH 5 |
| Date | 22 January 2019 |
| Docket Number | CA102/18 |
| Court | Court of Session |
| Published date | 22 January 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 5
CA102/18
OPINION OF LADY WOLFFE
in the cause
RAMESH DEWAN
Pursuer
against
THE FIFE COUNCIL
Defenders
Pursuer: A Sutherland; MacRoberts LLP
Defender: R Dunlop QC, MacGregor; Clyde & Co (Scotland) LLP
22 January 2019
Introduction
[1] The pursuer is the heritable proprietor of certain property in Dunfermline (“the
Site)”. The pursuer avers that in February 2010 he leased the Site to two individuals who
were directors (“the Directors”) of a waste management company, First Option Services Ltd
(“the Company”), which operated on the Site. The Company’s activities on the Site were
subject to environmental statutory control in the form of an exemption (as after-mentioned)
under the Environmental Protection Act 1990 (“the Act”) and The Waste Management
Licensing (Scotland) Regulations 2011 (“the 2011 Regulations”).
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[2] The pursuer avers that by “26 April 2012 at the latest” waste stored on the Site by the
Company was in breach of the Exemption granted to the Company under the Act and the
2011 Regulations. The Directors subsequently pled guilty to a charge of keeping controlled
waste (comprised of 3,500 tonnes each of waste carpets and waste plasterboard) in a manner
likely to cause pollution of the environment and harm to human health between
28 September 2012 and 21 February 2013, contrary to section 33(1)(c) and (6) of the Act.
[3] The pursuer estimates that it will cost about £1,000,000 to remove and dispose of the
waste and to restore the Site (“the restoration costs”). The pursuer does not seek to recover
that sum from the Company or the Directors. In this action, the pursuer seeks the sum of
£1,000,000 from the defenders as damages as a consequence of their alleged breach of
section 33(1)(a) of the Act.
Background
The activities carried on by the Company on the Site
[4] The Company operated a waste management facility on the Site. This included
storage of waste as well as the processing of it by shredding. In terms of the 2011
Regulations, the Company required to register an exemption with the Scottish
Environmental Protection Agency (“SEPA”) to store waste at the Site. The Company
registered an exemption for that purpose on 7 March 2011 (“the Exemption”). In terms of
the Exemption, the total quantity of waste the Company was permitted to store at the Site at
any time could not exceed certain quantities (“the quantity restriction”) and, further, no
waste could be stored at the Site for longer than 12 months (“the time-limit restriction”). It
was also a requirement of the 2011 Regulations that the waste was stored and managed
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without endangering human health and without using processes or methods that could
harm the environment.
Outline of basis on which the pursuer seeks to impute liability on the defenders
[5] The defenders were neither the occupiers nor the operators of waste reception or
processing activities on the Site. However, the defenders were one of about 38 third-party
users of the services of the Company. In particular, the pursuer avers that in about March
2011 the defenders entered into an arrangement with the Company for disposal of the
defenders’ waste, which subsisted until the defenders ceased to deliver waste to the Site in
about June 2012. During that period, the defenders were said to have deposited
approximately 1,267 tonnes of carpet and 685 tonnes of plasterboard (the defenders say they
“delivered” (not “deposited”) these quantities). The total amount of waste averred to
remain on the Site is 7,000 tonnes. In submissions it was explained that this was mixed
waste comprised of the shreddings of different kinds of waste that had been provided to the
Company.
[6] The basis upon which the pursuer seeks to impose liability on the defenders (and to
do so for the totality of the restoration costs) is that the defenders breached the prohibition
in section 33(1)(a) of the Act of (reading short) “knowingly” permitting controlled waste to
be deposited on the Site when those deposits were not in accordance with the Exemption.
The defenders’ debate
[7] At debate the defenders challenged the relevancy of the pursuer’s case on three
principal grounds, as follows:
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