TC09644 ****** - [2025] UKFTT 01121 (TC)

We begin by making the following initial findings of fact to give context to other parts of the decision.

PO was a farmer, who has struggled for many years with severe mental health difficulties. In 1986 ownership of the farm was transferred to his wife – at about this time he was hospitalised in Purdysburn Hospital for mental health issues.

In 2008 PO’s wife passed away. This triggered a deterioration in his mental health.

On 29 May 2013 PO purchased a smaller farm adjoining the existing family farm. This was done to give his children the opportunity of living nearby. The purchase was subject to a charge by Northern Bank Limited.

On 1 December 2013 PO entered into a conacre agreement with John Ward. Conacre agreements are common in Northern Ireland. A conacre agreement is a form of licence agreement – not a lease – and so PD retained full rights of access to the land at all times. PO attended his family solicitors, M&M, to execute the agreement with another of his daughters (not CD). The agreement was provided to HMRC by M&M. The agreement is a genuine document. In the agreement Mr Ward is said to reside in Monaghan (a town in the Republic of Ireland). While HMRC have made enquiries with the local Garda Síochána they have not been able to trace Mr Ward. CD never met Mr Ward or had any dealings with him.

On 16 January 2014 PO purchased a JCB telehandler. This was bought to help move silage into the central feeding compartment for cattle on the farm. The purchase came from the farm account and was in the name of PO. However, the actual purchase was undertaken by CD.

On 25 February 2014 Officer Blair first inspected the property. He identified waste disposed at a number of locations:

On that occasion, Officer Blair did not meet with PO. He spoke to PO’s daughter who said that she did not know where he was. Officer Blair observed that the JCB telehandler, which was located in adjacent farm buildings, had round the wheels, bodywork and shovel small deposits of glass and plastic similar in nature to that found in the waste deposit.

Officer Moore has exhibited a form “SAF 1”, signed in the appellant’s name on 8 May 2014, for single farm payment. CD testified that she signed her father’s name and the form was filled in by a neighbour, Charlie, who worked at the Department of Agriculture, Environment and Rural Affairs (“DAERA”) and helped his neighbours with such forms. We accept this to be the case.

On 3 September 2014 Officer Blair re-visited the site. He found that the waste had been removed from the silage bay and the barn. He also noted the presence of the JCB telehandler and three other vehicles registered to PO. He also observed a pathway to the south of the site, made of crushed glass. The average depth of the waste is 0.5 metres with a 161m² surface area. The volume of disposed waste is therefore approximately 80.5m³.

On 7 November 2014 Officer Blair re-visited the site. He noted that approximately an additional 800m³ of shredded glass had been deposited in the gully. He also observed a pathway of crushed glass to the north of the site that leads to a wind turbine: this is shown in Figure 3 in the Appendix to this Decision. The average depth of the waste is 0.5 metres with a 895m² surface area. The volume of controlled waste is therefore approximately 447.5m³.

Mr McNamee suggested that it was logical that the pathway and the glass must have been placed there by those who built the wind turbine, which he said was Aircore. He put this to Mr Young and CD, neither of whom was able to say who was responsible for building the wind turbine. In any event, it would be a commercial bargain who was responsible for building an access route, presumably as part of the negotiation for building the wind turbine. We heard no evidence on this, although presumably there would have been commercial documentation that could have been made available. There was no suggestion that Aircore were given ownership of the land on which the path was built, so it would have remained owned by PO. Accordingly, we do not consider the fact that the path leads to the wind turbine necessarily means that PO did not makes the disposal of glass on the path, or knowingly cause or knowingly permit the disposal to be made

Officer Moore has exhibited a further form “SAF 1”, signed in the appellant’s name on 11 May 2015, for single farm payment. CD again testified that she signed her father’s name and the form was filled in by a neighbour, Charlie. We accept this to be the case.

Officer Moore also exhibited herd details she obtained from DAERA. These show PO and CD to be joint registered keepers of cattle found inside the sheds during the inspection on 7 November 2014.

On 23 October 2015 PO was arrested for environmental offences associated with the waste and interviewed under caution. He made no comment in interview. We find that due to his mental health he was unable to volunteer information.

In summer 2016 PO was seen privately by Dr Bindal, a consultant psychiatrist.

In November 2016 PO was examined by Dr Brasil, a consultant psychiatrist. We do not have a copy of this report.

On 6 December 2016 Dr Bunn examined the appellant for the first time.

On 19 January 2017 Dr Kelly examined the appellant.

In March 2017 PO was found unfit to plead by the Crown Court. The relevant test (as in England & Wales) is Pritchard. A person is not fit to plead if they cannot understand what they are accused of, understand the meaning of guilty or not guilty, follow what is happening in court or instruct counsel. The threshold is low: as long as the defendant can participate in a meaningful way, they are fit to plead.

On 19 October 2017 Dr Bunn re-examined PO for the purpose of his addendum report.

In March 2019 HMRC received the file from the NIEA.

On 2 August 2019 Officer Blair carried out a follow-up inspection and found the waste to remain on-site. The inspection was a visual inspection. The path to the wind turbine had been covered with white quarried stone. However at the edges of the path the crushed glass was still visible. This led Officer Blair to believe that the crushed glass was still beneath the quarried stone. We consider that a reasonable inference given the presence of the crushed glass to the side. That is at odds with the evidence of Mr Young, who does not mention the presence of any crushed glass at the side. We find Mr Young’s evidence unreliable for the reasons we have given. Accordingly, we find that the crushed glass was not removed and was below the quarried stone.

While CD’s witness statement says that “Much of the material referred to within this statement was removed by Mr John Ward and his associates from the premises prior to my father’s trial” it does not specify which material: it could easily refer to the material in the barn or silage bay. Nor do we know how she knew this, given that she never met Mr Ward.

On 22 July 2020, as HMRC were unable to speak to PO, HMRC issued a best judgement assessment against PO, under section 50A of the Finance Act 1996. There had, however, been significant correspondence between HMRC and M&M alluding to PO’s capacity and mental health.

On 7 June 2024 CD was appointed controller of PO, by order of the High Court of Northern Ireland, due to his mental incapacity. The reason for this was to allow HMRC to communicate with CD for these proceedings.