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'Shameful' DoE slammed by judge over incinerator advice

The Lord Chief Justice has slammed the Department of Environment for giving misleading advice to a drugs company.

Northern Ireland's most senior judge said the DoE's conduct over guidance issued on a waste incineration directive was "shameful".

Lord Chief Justice, Sir Declan Morgan's, withering criticism came as he dismissed a challenge by a pharmaceutical company convicted of operating incinerators without a permit.

The Court of Appeal upheld a decision not to halt the prosecution against Newry-based Norbrook Laboratories, which claimed it was an abuse of process.

The firm had installed incinerators on three sites in 2004 for non-toxic waste such as polythene, wood and cardboard.

Ruling on the appeal, Sir Declan set out how the managing director of the company, which supplied the machines, had sought guidance on the implications of a Waste Incineration Directive (WID) on permit requirements.

Guidance issued by the DoE in 2003 stated that small waste burners, small space heaters or other waste oil burners were not considered within the directive.

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It also pointed out that precise legal requirement could only be determined by the national or European courts.

After seeking confirmation from the supplier, Norbrook was satisfied that the incinerators were exempt from licensing requirements, the court heard.

However, the company was later informed that UK environment authorities ruled the incinerators it installed were subject to WID requirements.

The department stated its view was that they could not be compared to small oil burners.

Sir Declan, who heard the appeal along with Lord Justice Coghlin and Sir John Sheil, noted it was now conceded that small waste oil burners (SWOBs) are in fact subject to licensing requirements.

He said the concession was made in 2005 amid threatened infraction proceedings by the European Commission for breach of the WID.

The court was told the decision to issue guidance in England, Wales and Northern Ireland which appeared to exclude SWOBs from operation of the licensing system was made due to likely problems with enforcement of the WID.

"We accept that the guidance was deliberately misleading in light of the submissions by the respondent (the DoE) to that effect, in that the guidance did not disclose the true reasons for the suggestion that SWOBs were outside the remit of the WID," Sir Declan said.

Dismissing the appeal by Norbrook, he held there was no reason to interfere with the trial judge's decision that the prosecution should not be stayed as an abuse of process.

Commenting on the conduct of the DoE, Sir Declan added: "It would be wrong to leave this case without deploring the conduct of the Department of the Environment for Northern Ireland in issuing a guidance document to the people of this jurisdiction which we have been told it knew misrepresented the requirements of the WID in relation to incineration.

"In a society governed by the rule of law the department is obliged to promote compliance with the law.

"Its conduct in this instance was shameful."

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