SEEKING COUNSEL


Philip Jones, New Bailey Chambers, Liverpool EA site inspections, CAR reports, and OPRA scoring can prove surprising


Most readers will by now be aware I have daily exposure to the rules and legislation governing the running of waste sites. Even so, the complexities of the rules and regulations in the industry, particularly concerning management, seem to be endless. One regular complaint I receive


from waste operators is they are forced to jump through hoops to meet compliance, both with permitting conditions and planning regulations. Certainly from my point of view, this is good news. Let’s face it – if


the regulations were straight- forward I would be out of a job! However, I recently came across


a circumstance which caused even me some surprise. This involved EA site inspections, CAR reports, and OPRA scoring. One particular site visit by the


Environment Agency and a subsequent adverse CAR report resulted in a low OPRA score. This obviously had an impact on the operator band scoring, and the consequential cost of a permit. The approach taken by the Environment Agency revolved


Philip W. Jones is a member of New Bailey Chambers in Liverpool, and has been a practicing Counsel for many years. He was previously employed by the Environment Agency as a lawyer, and now heads a practice on regulatory, environmental and planning issue matters. He regularly represents waste operators, in particular smaller scale operations, before civil and criminal courts plus planning inquiries.


around the poor CAR report. They asserted there had been non- compliance by the operator when dealing with adverse comments within the CAR report. This lead to low OPRA scoring, and the EA increased the frequency of their visits. Whilst this sounds all well and


good, the difficulty for the operator was once the level or frequency of visits (via the CAR report) had been increased, this would lead to increasingly low OPRA scoring. Any fault was not due to


non-compliance by the operator, but because the OPRA score had become “stacked” against him. There was not sufficient time between each visit, and further CAR reports/OPRA scoring, for the operator to actually remedy the original complaints raised, or put his site within compliance Once the negative CAR report/


OPRA scoring on the same issues had been produced, the negative effect this had – irrespective of


whether the operator had by that time put it right or not – continued to effect the band in which his site or permit would be placed. The solution was to raise the


issue with the EA, so the methodology of how they went about completing the CAR report or OPRA scoring was put under review. Consideration was then given to suspending any further scoring on the same issue, until such time as the operator had time to put it right. It cannot be emphasised the


importance of keeping a clean sheet when positioning CAR reports and obtaining a good OPRA score. Otherwise, these may impact on permits and site running costs, especially when there could be a prosecution. Remember readers, a low OPRA


scoring normally results in a lower level of culpability – and hence a lower fine potentially.


Dominic McNabb, MJP Solicitors


Waste-related court appearances are resulting in harsher penalties


One of the noticeable changes to sentencing has been the application of the Sentencing Guidance, now a settled feature in respect of how all persons guilty of an offence are dealt with. The relevant provisions in respect of companies and individuals finding themselves charged with waste offences have been in force since 1st July 2014. These are dealt with in two very different ways (for both the treatment of an


individual and the company or organisation), and can lead to some expensive and in some instances, entirely un-appealable financial penalties. There has been some evidence sentencing has resulted in an increased


level of fines from statistics available from The Sentencing Council, which promotes greater consistency in sentencing and reviewed the effect of the guidance in November this year. To back up my point about harsher sentencing, their review examined the maximum fines imposed in the Crown Court, which rose from £6,000


– £100,000 between 2005 and 2012, and from £200,000 in 2013, to £500,000 in 2014 and £250,000 in 2015. Other figures provided via a Sentencing Council report show some


companies have received particularly high fines, resulting in a sharp increase in the mean penalties imposed. I have had some recent experience of this myself, when I represented a


company director as an individual, and also the company itself. I was able to persuade the Prosecution to review the case, and proceed against the


Dominic McNabb is a solicitor in private practice with MJP solicitors, and has over 20 years’ experience defending individuals and companies, in respect of criminal and regulatory matters. Contact him on 0773 3264226 Email: skiphireanswers@peak-associates.com


46 SHM December 2016 Issue 132


individual director alone – which resulted in a substantial cost saving and a less punitive financial penalty. However, if I had been involved from the outset, especially during the


interview stages, it would probably have been more cost effective for both parties, and less stressful for the people involved.


THE LAW BIT The following table is taken from pages 10 and 11 of the Sentencing Guidance and gives an indication of what fines are appropriate for small companies in


England and Wales. Small: Turnover or equivalent, between £2 million and £10 million Small


Starting Point


Deliberate Category 1 Category 2 Category 3 Category 4


Reckless Category 1 Category 2 Category 3 Category 4


Negligent Category 1 Category 2 Category 3 Category 4


Low / No culpability Category 1 Category 2 Category 3 Category 4


£100,000 £45,000 £17,000 £10,000


£55,000 £24,000 £10,000 £5,000


£30,000 £13,000 £6,000 £3,000


£5,000 £2,500 £1,000 £700


Range


£45,000 – £400,000 £17,000 – £170,000 £10,000 – £70,000 £5,000 – £40,000


£24,000 – £220,000 £10,000 – £100,000 £5,000 – £40,000 £3,000 – £24,000


£13,000 – £120,000 £6,000 – £55,000 £3,000 – £23,000 £1,500 – £14,000


£2,500 – £20,000 £1,000 – £10,000 £700 – £5,000 £400 – £3,500


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