DPP v Cavan County Council

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 24 June 2015
• Neutral Citation: [2015] IECA 130
• Date: 24 June 2015
• Docket Number: 330/2012 332/2012

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Cavan County Council

And

Oxigen Environmental Limited

Appellants

[2015] IECA 130

330/2012

332/2012

THE COURT OF APPEAL

Sentencing – Waste disposal – Fines – Appellants seeking to appeal against the severity of fines – Whether fines imposed were excessive and disproportionate

Facts: The appellants, Cavan County Council and Oxigen Environmental Ltd, each pleaded guilty in November 2012 at Cavan Circuit Criminal Court, to one count of having disposed of waste other than in accordance with a term of the waste license that had been granted by the Environmental Protection Agency, contrary to s. 39(1) and 39(9) of the Waste Management Act 1996. The offences related to the disposal of waste at a landfill in Corranure and Lismagratty Townlands, Cootehill Road, Cavan, between February and September 2007, in respect of the first appellant, and between October 2007 and February 2009, in respect of the second appellant. During both periods, Cavan County Council was the licensee of the landfill site. It was itself in occupation and control of same up to, but not including, between October 2007 and February 2009, during which time Oxigen Environmental Ltd was contracted to manage and operate the site. At sentencing, Cavan County Council received a fine of €260,000. Oxigen Environmental Ltd received a fine of €780,000. The appellants appealed to the Court of Appeal against the severity of those fines on grounds that the sentencing judge: 1) failed to locate the offences appropriately on the scale of gravity 2) erred in principle in calculating the fines by reference to the cost of ongoing environmental maintenance, thereby punishing the first named appellant for its continuing commitment to the maintenance of high environmental standards at the facility; 3) erred in law in failing to distinguish between the appellants in calculating the fine for the second appellant on the basis of money being spent by the first appellant towards ongoing maintenance of the site 4) erred in law in failing to consider that, in providing for a determinate albeit substantial fine, the Oireachtas had sought to limit the maximum fine that could be levied in a given case 5) erred in principle in calculating the fines on the basis that it did not matter what level of fine was imposed and that he erred in law in calculating the fine in an arbitrary fashion. The appellants also claimed that the sentence imposed would only have been appropriate had there been evidence that the appellants had profited from the offence. The respondent, the DPP, referring to The People (DPP) v Roseberry Construction Ltd [2003] 4 IR 338, contended that there were aggravating features to the case which rendered it a serious one, that the appellants had had knowledge of a continuing nuisance but only acted with respect to it when the Environmental Protection Agency had become involved; moreover, the Corranure facility had been operating at the relevant time and was generating a substantial income in waste disposal fees, while the first appellant had previous convictions for environmental offences.

Held by Edwards J that the sentencing judge erred in over-estimating the seriousness of the case. The Court agreed with the appellants that the judge ostensibly attributed too much weight to the available penalties in assessing the seriousness of the offending conduct. Edwards J held that the seriousness of the offence was properly to be rated as falling in the low to medium range on the scale of seriousness, in circumstances where no damage to the environment has been caused by the breach but by the same token a substantial number of persons were affected by the nuisance created. The Court did not consider that, in the circumstances of the case, it was a fair characterisation of the matter to suggest that the appellants profited from the breach. The Court held that the sentencing judge also fell into error in imposing a far greater fine on the second appellant merely on the basis that the second appellant was in charge of day to day operations on the site for a greater proportion of the relevant time; there was no legitimate basis for such discrimination having regard to the agency relationship between the parties.

Edwards J held that the fines imposed were excessive and disproportionate, and quashed both sentences. The Court considered that the first appellant”s greater culpability was cancelled out by the extra mitigation to which it was entitled, and it therefore proposed to treat both of the appellants in the same way and to impose the same penalty of €50,000 on each of them.

Appeals allowed.

Judgment of the Court delivered on the 24th day of June, 2015 by Mr. Justice Edwards

Introduction

1 This is a case in which the appellants, Cavan County Council and Oxigen Environmental Limited, each pleaded guilty on 30 November 2012 at Cavan Circuit Criminal Court, to one count of having disposed of waste other than in accordance with a term of the waste license that had been granted by the Environmental Protection Agency, contrary to section 39 (1) and 39 (9) of the Waste Management Act 1996.

2 The offences related to the disposal of waste at a landfill in Corranure and Lismagratty Townlands, Cootehill Road, Cavan, between the 14th of February 2007 and the 30th of September 2007, in respect of the first named appellant, and between 1st of October 2007 and 14th of February 2009, in respect of the second named appellant. During both periods, Cavan County Council was the licensee of the landfill site. It was itself in occupation and control of same up to, but not including, between 1st of October 2007 and 14 February 2009, during which time Oxigen Environmental Limited was contracted to manage and operate the site.

3 At sentencing, Cavan County Council received a fine of €260,000. Oxigen Environmental Limited received a fine of €780,000.

4 The appellants now appeal against the severity of these fines.

Background and relevant evidence

5 The Corranure facility was originally a traditional style dump, in use since the 1960s. In 2001, the first named appellant, Cavan County Council, began investing in the site in order to develop a modern, technologically advanced, landfill facility and has expended approximately €19,000,000 to that end in the intervening period.

6 The first named appellant was issued a waste license by the Environmental Protection Agency. Condition 7.1 thereof imposed a duty on the Council to ensure that odours emanating from the landfill did not give rise to a nuisance at the facility or in its immediate vicinity.

7 However, inspections of the site undertaken by the Environmental Protection Agency on 30th of May 2007, 11th of July 2007, 4th of November 2008 and 11th of November 2008, detected the presence of noxious odours which were being emitted primarily as a result of waste deposited into engineered cells but also as a result of malodorous landfill gases which this waste generated. Notices of non-compliance were issued to the appellant following these inspections.

8 The odours, which were described as moderate, strong and persistent, caused significant interference with the amenities of landowners and residents beyond the boundaries of the licensed facility, up to and including 2km from the site. The landfill is located within a 1.6km radius of approximately 100 residences. There are also two secondary schools, housing developments and a residential nursing home within a short distance. According to the Environmental Protection Agency, Ballyhaise village and the northern part of Cavan town were also adversely affected by the emissions. Consequently, between 2007 and 2010, the Environmental Protection Agency received over 1,400 complaints relating to the problem.

9 The level of dissatisfaction within the local community with odours emanating from the facility was reflected by the fact that when Oxigen Environmental Limited applied for planning permission to expand the landfill site, and applied for a waste licence in its own name, these were objected to by local residents who had been extremely discommoded by the nuisance at issue. A number of residents formed an organisation to oppose the applications as part of a campaign entitled ‘Cavan Better Waste Management Group’. The existence of this group, the fact of their objections, and press reportage unfavourable to the appellants in ‘The Anglo Celt’ and other newspapers, formed the basis of an application to Cavan Circuit Criminal Court by the appellants to have their trials transferred to the Dublin Circuit Criminal Court. That application was unsuccessful. However, the judge's ruling in that regard does not form the basis of any ground of appeal.

10 Mr Kealan Reynolds, inspector at the Environmental Protection Agency (E.P.A.), accepted that waste management was more difficult in recent years due to a higher proportion of biodegradable content in waste going to landfill, owing to increased recycling, which produces more odours, and that this has precipitated regulatory reform in the waste industry.

11 Secondly, it was accepted by Mr Reynolds that the first named appellant had made a substantial investment in the Corranure site and that, notwithstanding the breach at issue, the site was now being operated in full compliance with the waste licence, and the E.P.A. had no ongoing concerns with respect to either appellant in relation to how the Corranure site was being operated. In addition, while condition 7.1 of the waste licence had undoubtedly been breached during the period at issue, the breach related to the creation of a nuisance for those in the vicinity in breach of a requirement that that should not occur, and therefore involved...