Brownfield Restoration Ireland Ltd v Wicklow County Council

JudgeMr. Justice Richard Humphreys
Judgment Date12 June 2017
Neutral Citation[2017] IEHC 397
Date12 June 2017
CourtHigh Court
Docket Number[2008 No. 56SP] [2005 No. 89SP]





(No. 2)

[2017] IEHC 397

Humphreys J.

[2008 No. 56SP]

[2005 No. 89SP]


Environment, Construction & Planning – Dumping of waste – Waste Management Act 1996 – Waste Directive 2008/98/EC – Modular trial of issues – Liability of local county council for historic waste dumping

Facts: Two sets of proceedings were filed by the parties against each other. The key issue that was left for the Court's determination was the liability of the local county council for dumping hazardous and inert waste at the subject site and its non-compliance with the EU directives for waste management. The two sets of proceedings concerned injunctive relief, which were claimed by the parties against each other.

Mr. Justice Richard Humphreys held that the local county council itself had violated s. 39 of the Waste Management Act 1996 and it made itself liable for an order under s.58 of the 1996 Act. The Court noted that the said council had also violated several directives for waste management, and thus, it was not in compliance with the EU law. The Court left certain issues for being decided in the other modular trial. The Court observed that despite the fact that the plaintiff was the owner of the subject site; the council need not have required any license to do any remediation work on that site. The Court also granted certain other ancillary reliefs to the parties.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of May, 2017

When the Oireachtas provided that an application for an injunction to deal with unauthorised waste could be made ‘ in a summary manner’ (s. 58(2)(a) of the Waste Management Act 1996), it was probably not envisaged that such an application could be ongoing for a period of 12 years and occupy over 50 hearing days of court time. The matter has already generated six previous judgments of the High Court ( Wicklow County Council v. O'Reilly and Ors. (No 1) [2006] IEHC 265, Clarke J., (8th February, 2006), (No. 2) [2006] IEHC 273, Clarke J. (8th September, 2006) reported at [2006] 3 I.R. 623, (No. 3) [2007] IEHC 71, Clarke J. (2nd March, 2007), (No. 4) [2010] IEHC 464, O'Keeffe J. (7th December, 2010) and (No. 5) ( Ex tempore, not circulated, O'Keeffe J. (20th December, 2011)), as well as Brownfield v. Wicklow County Council (No. 1) (Unreported, High Court, 26th April, 2017) regarding modularisation.


A full account of this saga would be of book-length, but in the spirit of the summary procedure envisaged by the legislation I propose to endeavour to deal with the issues now arising with as much brevity as circumstances permit, and will set out the key factual and legal matters rather than an exhaustive chronology of every twist in the tale. I have heard from Mr. Peter Bland S.C. and Mr. Michael O'Donnell B.L. and from Ms. Deirdre Courtney (who also addressed the court when counsel were unavailable) for Brownfield Restoration, the plaintiffs in the 2008 proceedings. The same lawyers also appear for Rockbury Ventures Ltd. I have also heard from Mr. James Connolly S.C. and Mr. Damien Keaney B.L. for the council. Dean Waste did not pursue the 2008 proceedings as plaintiff. The only live defendants in the 2005 proceedings are the first defendant Mr. O' Reilly, the second defendant Brownfield, the fifth defendant Swalcliffe Ltd. and the eighth defendant Dean Waste (in receivership), not counting the proposed thirteenth defendant Rockbury. I also heard from Mr. Eoin Kidd B.L. for Swalcliffe. Dean Waste did not appear. The remaining defendants had previously been struck out over the course of the prior 12 year history of the 2005 case in the High Court.

Findings of fact

A large illegal dump operated at a quarry site at Whitestown in West Wicklow from around 1979 onwards. Mr. Bland describes it as the largest illegal dump in the history of the State. The council itself under the directions of middle management dumped a significant quantity of material on the site during the period 1979 to 2001, including non-inert and hazardous waste. Complaints were made to the council about the dump going back to 1989 but no effective action was taken; the council states that it did not find evidence during site visits. In November, 2001, the senior management of the council say they discovered the dump and the council took steps to close it. On the very day it was being closed, two lorry-loads of waste were in the course of being dumped on behalf of the council on the same site.


The council then made the fateful decision to engage Mr. Donal Ó Laoire as a consultant and later appointed him as an authorised officer. Mr. Ó Laoire developed a proposal, which he himself correctly described in evidence as corrupt, whereby he and his associates (variously described as a syndicate or consortium) would make a profit from a commercial venture designed to remediate the site, using statutory powers and court proceedings, both civil and criminal. One of his collaborators was Mr. Roger McGreal, an agent of Dean Waste, and the originator, in his Garda interview, of the term ‘ syndicate’ (a term with telling overtones of organised illegality: see Walsh v. Walsh [2017] IEHC 181 para. 17). The syndicate approached Mr. John O'Reilly, the original owner, to seek to acquire the site. Simultaneously Mr. Ó Laoire was the star witness in civil and criminal proceedings against Dean Waste and Mr. O'Reilly. Clearly he was engaged in a massive conflict of interest that was actual rather than merely potential. In an email of 2nd March, 2002, he said that the ‘real agenda’ was to ‘capitalise on the aftershock I am generating’, that is to make money from the ‘ Whitestown opportunity’ (draft document of 3rd August, 2002). As it was put in that document, ‘[t]hrough his work Donal has identified an opportunity for a new player in the waste business’.


In May, 2002, the council entered the site, took possession of it and used a mechanical excavator to cap the main waste dumps with material. It is agreed that the waste on site when the council entered on the lands included inert, non-inert and hazardous waste.


On 16th October, 2002, Commissioner Margot Wallström of the European Commission issued a letter pursuant to art. 226 of the EC Treaty regarding implementation of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended. The letter complains at para. 3 that the council was notified in 1998 that dumping was taking place but took no enforcement action. The Commission was concerned that it was indicated that the intention was to seal the site rather than remediate.


On 26th September, 2003, a subsidiary of Brownfield, Rockbury Ventures Ltd. (incorporated in the British Virgin Islands), acquired the site. Mr. Stokes of Brownfield has repeatedly (and apparently inaccurately) asserted that Brownfield are the owners and has specifically averred to Brownfield being the owner and occupier. Brownfield later (in September 2006) obtained a waste licence from the Environmental Protection Agency ( EPA) to remediate the site.


Brownfield assert that in 2003 the council locked the gate of the site (this is to some extent accepted by the council) and at a later stage, on request, gave a key to Brownfield. Brownfield were thus able to access the site, at least for investigations. The precise legal basis for the council asserting an entitlement to enter onto the land from 2001 onwards and to lock the gate between 2003 and 2011 is contended to have been s. 14 of the Act (regarding powers of authorised persons) although this has not been spelled out on affidavit quite as explicitly as one might ideally like. Mr. Keaney who also addressed me on this point submitted that the extent of Brownfield's access to the site amounted to dominion. Mr. Bland submits that animus possidendi is established by putting a lock on the gate.


Ms. Sonia Dean averred at para. 5 of her affidavit of 20th July, 2005, that having examined the land she said she ‘informed Mr. O'Reilly that I would have to close the site and investigate the risk created by the fact that waste had been illegally dumped on the lands’. The suggestion is that Mr. O'Reilly acquiesced in the proposal to close the site and that the council's acts thereafter were by consent and that no enforcement action (whether in the District Court or under s. 58) was required.


The contention that the council did not close the site on a long-term basis is supported by an affidavit of Mr. O'Reilly of 8th December, 2006, which avers at para. 10 that the site was closed for four weeks.


On 15th August, 2006, Mr. Stokes swore an affidavit averring at para. 3 that Brownfield was the owner ‘and occupier’ of the lands.


It seems to me as a matter of fact having regard to the foregoing that the council cannot be regarded as having been in exclusive possession prior to 2012. The extent of the council's interventions on the property prior to then appear to relate to steps under s. 14 and acts with the acquiescence of the owners. Particularly where occupation is positively admitted by Brownfield, and their possession of a key is also admitted, I must conclude that Brownfield/Rockbury had control or possession of the site for the purposes of the 1996 Act between 2003 and 2012.


In 2005 the council brought injunctive proceedings under s. 58 of the 1996 Act against Brownfield and various other defendants. Importantly, in those proceedings the council sought full...

To continue reading

Request your trial
7 cases
  • Brownfield Restoration Ireland Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 7 July 2017
    ...Council (No. 1) [2017] IEHC 310 (Unreported, High Court, 26th April, 2017); and (vii) Brownfield v. Wicklow County Council (No. 2) [2017] IEHC 397 (Unreported, High Court, 12th May, 2017). 3 The site (Folio 2100 County Wicklow) is adjacent to the Carrigower River and part of the site is w......
  • Brownfield Restoration Ireland Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 16 May 2023
    ...application for the modular trial of the proceedings. (vii) In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 2) [2017] IEHC 397, ( [2017] 6 JIC 1201 Unreported, High Court, 12th May, 2017), I decided a number of preliminary issues including the rejection of certain alleg......
  • Wiclow County Council v O'Reilly NO.4
    • Ireland
    • High Court
    • 19 July 2017
    ...required while Brownfield and the EPA consider not. 6 I held in Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 2) [2017] IEHC 397 (Unreported, High Court, 12th May, 2017) that assessment and licensing requirements were not necessary where removal works were directed by ......
  • Brownfield Restoration [Ireland] Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 21 March 2023
    ...application for the modular trial of the proceedings. (vii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 2) [2017] IEHC 397, ( [2017] 6 JIC 1201 Unreported, High Court, 12th May, 2017), I decided a number of preliminary issues including the rejection of certain alle......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT