Neutral Citation Number - [2011] UKUT 282 (AAC)
Appeal No.  T/2011/24
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Joan Aitken Traffic Commissioner for
Scotland Dated 4 March 2011

Before:			Hugh Carlisle QC  	Judge of the Upper Tribunal
				Patricia Steel	Member of the Upper Tribunal
				Stuart James 	Member of the Upper Tribunal

Appellant:
DOONIN PLANT LIMITED

 
Attendances:
For the Appellant: Neil Kelly, solicitor, 

Heard at:	The Eagle Building, 215 Bothwell Street, Glasgow.  G2 7EZ
Date of hearing:	29 June 2011
Date of decision:	8 July 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED.

SUBJECT MATTER:  Loss of repute; convictions

CASES REFERRED TO:  None

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for Scotland on 4 March 2011 when she curtailed the number of vehicles authorised by the Appellant’s licence to five, for a period of four months.

2.	The factual background appears from the documents and the transcript of the public inquiry and is as follows:
(i)	The Doonin family have been engaged in the haulage business since 1961; more recently they have specialised in the disposal of controlled waste.  The Appellant Company was incorporated in 1991 and on 4 August 1992 it was granted a standard national goods vehicle operator’s licence, which now has an authorisation for 20 vehicles and 2 trailers, with 9 vehicles being specified.  The managing director of the company is Mr Gary Doonin, who has a degree in biochemistry.  
(ii)	The Company has been convicted on four occasions: 
•	On 3 April 2007 at the Lanark Sheriff Court of an offence contrary to s.30(F)(3) of the Control of Pollution Act 1974, occurring on 10 January 2006; fined £1800;
•	On 6 June 2007 at the Linlithgow Sheriff Court of an offence contrary to s.33(1)(a) of the Environmental Protection Act 1990 of an offence occurring on 11 February 2005; fined £3000;
•	On 22 August 2007 at the Lanark Sheriff Court of offences contrary to  ss.20(1) and 20(3)(A) of the Water Environment and Water Services (Scotland) Act 2003, occurring on 27-28 May 2006 and on 22 September 2006; fined £3000 and £5000;
•	On 21 October 2009 at the Glasgow Sheriff Court of an offence contrary to s.33(1)(C) & (6) of the Environmental Protection Act 1990, occurring between 16 January 2007 and 30 March 2007; a fine of £8000 was originally imposed but the Crown appealed and on 3 August 2010 the fine was increased to £90,000 by the Appeal Court, High Court of Justiciary.
(iii)	In its Opinion (2010 HCJAC 80) the Appeal Court referred to the agreed statement of facts and to surveillance carried out by inspectors of the Scottish Environmental Protection Agency (SEPA):- 		
	“On those days the officers captured, on tape, activities carried on at the site which involved the repeated dumping of controlled waste by large skip vehicles which, after dumping their skip’s contents, would leave the site.  Bulldozers were seen to flatten and move the waste and to cover it with soil.  During the periods of time in question vehicles bearing the respondents’ livery were seen to dump waste but, in addition, vehicles apparently belonging to various other parties were seen to make regular deposits of waste.  Over the six days of surveillance 81 separate deposits of waste were made. It was the view of the SEPA experts that the methods used for depositing the waste, involving the tipping of mixed waste types, without any prior sorting and their subsequent compaction and covering over with soil, were all indicative of permanent deposit.  The activities which were observed amounted, in the officers’ opinion, to disposal activities as would be seen on a landfill site.”
	The Crown produced an accountant’s report which showed that the Company was in a “strong financial position”: impecuniosity was not in issue.
(iv)	The Appeal Court concluded:-		
	“There is a legitimate public concern about the impact of such offences on the environment.  In particular, it is a matter of considerable public concern that companies may fail to comply with their environmental responsibilities if it costs them less to pay the penalty for breaking the law than it would to install proper safeguards, or to desist from the conduct in question.  Conduct of the sort revealed in the circumstances of this case, in our judgment, has to be regarded as serious having regard to the potential of serious harm that arises therefrom.  A fine in a case such as the present, in our judgment, requires to be large enough to bring the message home to those who manage and are shareholders in companies like the present that the statutory provisions designed to protect our environment must be taken seriously by them.  The fine imposed by the sheriff in this case, having regard to the financial position of the respondents was, in our judgment, unlikely to meet these objectives.  The conduct in question took place over a period of time and involved a blatant and complacent disregard by the respondents of their responsibilities.  That the site in question was in nearby proximity to a residential area compounded the seriousness of the situation.  The offence with which we are dealing, has also to be set against the number of analogous previous offences, three of them recent, where fines were imposed on the respondents, which clearly did not have the deterrent effect that is required.  In all the foregoing circumstances, we consider that a fine of £100,000 was the appropriate fine to be imposed in a case of this sort.”
	The Court then made a limited discount of 10% to reflect the lateness of the plea and a fine of £90,000 was imposed.  It is noteworthy that the Court commented that “it is, perhaps, surprising that while accepting the plea of guilty from the respondents, the Crown was unable to impute responsibility to any individual”.
(v)	On 6 May 2010 SEPA refused the Company’s application for renewal of registration as a carrier of controlled waste.  An appeal to a Reporter appointed by the Scottish Ministers was dismissed on 12 October 2010.

(vi)	The Company was called-up to a public inquiry which took place before the Traffic Commissioner on 4 February 2011.  Mr Kelly appeared for the Company and Mr Doonin was the only witness.  Mr Doonin referred to the history of the business and to the convictions, in particular that which had been the subject of appeal.  It had been his “own decision” to deposit the waste at the site in question and he did not accept the Appeal Court’s Opinion.  Despite the plea of guilty he asserted that he considered that the Company had been compliant at the time: he did not think that he had been “doing anything wrong”.  He attempted to go behind the agreed statement of facts in that he disputed that any of the Company’s vehicles had been used to dump waste.  The Traffic Commissioner pointed out the passage in the Opinion quoted above (see para.2(iii)) with its express reference to “vehicles bearing the respondent’s livery”.
(vii)	In support of the Company Mr Kelly submitted a letter from Mr Martin McBride and various management system audit reports from Moody International: each document indicated that the Company was compliant.  In addition SEPA had made favourable assessments of the Company’s environmental performance in 2009.  
(viii)	The Traffic Commissioner gave a written decision dated 4 March 2011.  She set out the history and quoted extensively from the Appeal Court’s Opinion.  She concluded that the Company’s repute had not been lost but that regulatory action was necessary.  She curtailed the number of vehicles authorised by the licence from 20 to 5, for a period of four months.  During the period of curtailment the four suspended vehicles were not to be used “on this or any other operator’s licence”.  The Company was to choose which vehicles were to be suspended, provided that the registered numbers were notified within 14 days; failing this the Traffic Commissioner would decide.

3.	On the hearing of the appeal Mr Kelly again appeared for the Company.  He had previously provided a skeleton argument for which we are grateful.  His submissions were under two heads: first, that none of the Appellant Company’s vehicles had at any time been used to deposit controlled waste; and, second, that the Traffic Commissioner’s order was disproportionate and excessive.

4.	We have already referred to the reference in the agreed statement of facts that “vehicles bearing the respondent’s own livery were seen to deposit waste” and we found ourselves becoming increasingly aware of the Company’s refusal to accept the consequences of its plea of guilty.  It seems that even now, on the hearing of the appeal, Mr Doonin does not accept that he had done anything wrong.  We have to say that the terms of the agreed statement of facts are unequivocal and we reject the submission to the contrary.  In any event, if only contractors’ vehicles had been used, this was done under the Company’s direction and the convictions are hardly less serious.

5.	Nor do we think that the Traffic Commissioner’s conclusion was disproportionate or excessive.  We think that the Traffic Commissioner was plainly right in deciding that regulatory action was necessary, with the order made being within her discretion.  Our only concern in this case has been whether Mr Doonin’s continuing stance is such that we should exercise our own regulatory powers in order to bring home to him the need for compliance by, for example, removing the time limit on the curtailment, so as to require the Company to apply for an increase, with its then attitude to compliance being in issue.

6.	We take into account that all the offences took place over four years ago; that there is no evidence of subsequent lack of compliance; and that the Company has produced written evidence of taking advice and of audit control of systems.  In the result we have decided to do no more than to dismiss the appeal.  The order for curtailment will take place on 1 August 2011, on the same terms as directed by the Traffic Commissioner.  

Hugh Carlisle QC
Judge of the Upper Tribunal
8 July 2011