A recycling firm owned by prominent waste hauler Anderson Fat Child Cherry has been found guilty of violating zoning laws by using his quarry near the island’s main water table as a dump.
Cherry’s company, Project Recycling Limited, changed the use of his land at the Lower Estate Quarry, St George – originally zoned for mining – for solid waste disposal without the required planning permission, a District “A” Magistrates’ Court found.
The offence was committed between November 10 and December 15, 2015.
Magistrate Douglas Frederick handed down the ruling today after prosecutor Crown Counsel Oliver Thomas and defence lawyer Derrick Oderson made final submissions in the case brought by then Chief Town Planner Mark Cummins against the recycling company
Oderson argued that while there was no dispute that the land was approved for quarrying and mining, his client was not guilty of the charge owing to wording of the development order.
The defence lawyer told the court: “Based on this the development order, because quarrying, mining and scrap yard fall within the same use class which is special industry, the change of use within that same class does not require planning permission. So on this basis, any purported change from mining to scrap yard becomes permitted development, changes within the same class do not require permission. It is permitted development.
“This is a case about a hole in the ground. It is also a case of a big hole in the prosecution’s case. The charges that the accused changed the use from mining to landfill they have never produced any evidence…. Was the use changed by the accused? We submit no, and even if they had changed that use, did it constitute development? We say no. So the evidence is that the accused found a quarry as a dump.”
But the Crown submitted that it had proven its case since the quarry has a designated use, which is for the purposes of mining.
Crown prosecutor Thomas said: “Scrap yard is not the same thing as what we are dealing with in this matter…. When you think of scrap yard you think of heavy metal… certainly not a dump.
“We are satisfied that there was a change of use of this land … and there is a grave breach of planning control in this matter. It is not relevant as to what the accused found when they started to occupy the premises but that they continued the practice… under occupation…. The Crown has proven its case.”
He further argued that the company had also breached sections 36(1) and 40B (5) of the Town and Country Planning Act for failing to adhere to previously issued enforcement and stop notices.
Magistrate Frederick agreed, describing the protracted legal issue as “a storm in a tea cup”.
In handing down his decision, he reasoned that when Cherry took responsibilty for the property he had doubts and sought advice from different people. But he made it clear there was no dispute that the situation constituted a difference in use.
In his ruling, the magistrate ruled: “I think that recycling is now seen as a wholesome activity. It is something good for the environment but you still need that permission and maybe the law has to be updated to deal with that… but there still needs to be regulation of it… because there are various areas that you might not be able to do it in because things could bleach into the aquifers.
“But a stop notice means stop… so he really didn’t stop and that’s an aggravating factor. A mitigating factor is that he applied subsequently for permission even though he applied out of time for retention of what he was doing…. The only conflict is this is something that you needed permission for if you were changing the use… so he changed the use of the land and… so he is found guilty.”
Project Recycling Limited’s general manager Leslie Weekes also addressed the magistrate saying that the company was currently removing some of the metal piled up at the St George quarry.
“It is a fair volume of metal and we do need some time…. I would think about six months,” Weekes said.
Appearing for the Town and Country Developing Planning Office, Chief Planning Assistant Jerome Walcott told the court that at last visit to the quarry, water was being dumped in its northeastern section to quell ongoing fires.
Walcott said the town planning office’s opinion was that “the material should be moved and dumped at Vaucluse”, which has been zoned for waste in the centre of the island.
The case was then adjourned until May 17 when final settlement on the way forward is to be determined.
fernellawedderburn@barbadostoday.bb
