Brownfield Restoration Ireland Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 07 July 2017
• Neutral Citation: [2017] IEHC 456
• Date: 07 July 2017
• Court: High Court
• Docket Number: [2008 No. 56SP]

BETWEEN

BROWNFIELD RESTORATION IRELAND LTD.

PLAINTIFF

AND

WICKLOW COUNTY COUNCIL

DEFENDANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

NOTICE PARTY

AND

BETWEEN

WICKLOW COUNTY COUNCIL

PLAINITFF

AND

JOHN O'REILLY, BROWNFIELD RESOTRATION IRELAND LIMITED, RAYMOND STOKES, ANNE STOKES, SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE, LOUIS MORIARTY, EILEEN MORIARTY, DEAN WASTE CO. LIMITED (IN RECEIVERSHIP), WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN, SAMUEL J. STEARS

AND

ROCKBURY LIMITED

DEFENDANTS

AND

THE ENVIRONMENTAL PROTECTION AGENCY

NOTICE PARTY

(No. 3)

[2017] IEHC 456

Humphreys J.

[2008 No. 56SP]

[2005 No. 89SP]

THE HIGH COURT

Environment, Transport and Planning – Council Directive 75/442/EEC – S. 58 of the Waste Management Act 1996 – Illegal dumping of hazardous wastes – Lack of license – Non-compliance with EU regulations – Prolonged litigation – Breach of EPA Code of Practice – Treaty on the Functioning of the European Union ('TFEU') – Waste Management (Licensing) Regulations 1997 – Intergenerational solidarity – Polluter pay principal – Precautionary principal – Environment Impact Assessment

Facts: The present proceedings were a part of multitude of proceedings instituted in relation to the nature of remediation work carried out by the local county council in the largest illegal landfill in the State. It was observed that the county council was dumping hazardous waste at the subject site without license, and even after remediating the site, 93% of the waste was still remaining. The key issue arose as to whether the council had complied with the relevant rules and regulations while doing the remedial work and breaches if any, made by the council along with the necessity of making an appropriate order by the Court in lieu of the presence of inert and hazardous waste on the site.

Mr. Justice Richard Humphreys held that the council would remove the hazardous waste material including the contaminated soil from the subject site to a licensed waste disposal facility and fill that site with the inert materials before handing over the possession of the subject site to the licensor of the site. The Court held that it would further hear the parties in relation to the issues already framed for Module III. The Court directed the parties to prepare the initial draft timetables to implement the required works, which would include the details of the EIA process; the EPA licensing of removal activity and the necessity of engagements of consultants. The Court rejected various options put forward by the council and noted that vigilant and effective protection of environment was an implied constitutional obligation and in conformity with the principal of intergenerational solidarity. The Court held that the council had breached s. 29 of the Waste Management Act 1996 as it held the waste in a long-term capacity without license. The Court criticised the flawed nature of the council's methodology that led to reduction rather than total elimination of dump on the subject site. The Court observed that the EPA, too, was lax in its approach in not implementing the effective enforcement mechanism to ensure the statutory compliance with the licensing requirements. The Court noted that the council had contravened the precautionary principal and the polluter pay principal.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 7th day of July, 2017

1 Wicklow County Council was one of a number of polluters engaging in significant illegal dumping at a huge illegal dump in Whitestown, Co. Wicklow, apparently the largest illegal landfill in the State. Following closure of the site in 2001, when the council envisaged that other dumpers would be paying for remediation, it proposed a scheme of full remediation, processing and removing all non-inert waste at a cost of anything up to €35m depending on the methodology availed of. But when the remediation was actually carried out at public expense, the council spent the much reduced figure of €3.868m, in a process that left at least 93% of the waste on site. The primary question now arising is whether this ' bonsai' attempt to rectify the site has succeeded in removing environmental risk and if not, what order is required to do so. A further question is whether removal of waste is required to avoid breach of statutory licensing requirements.

Background and general findings of fact

2 This is the eighth judgment of the High Court in this matter, the others being:

(i) Wicklow County Council v. O'Reilly (No. 1) [2006] IEHC 265, Clarke J. (8th February, 2006);

(ii) Wicklow County Council v. O'Reilly (No. 2) [2006] IEHC 273, Clarke J. (8th September, 2006) reported at [2006] 3 I.R. 623;

(iii) Wicklow County Council v. O'Reilly (No. 3) [2007] IEHC 71, Clarke J. (2nd March, 2007);

(iv) Wicklow County Council v. O'Reilly (No. 4) [2010] IEHC 464, O'Keeffe J. (7th December, 2010);

(v) Wicklow County Council v. O'Reilly (No. 5) (ex tempore, not circulated), O'Keeffe J. (20th December, 2011);

(vi) Brownfield v. Wicklow County 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 within the candidate Special Area of Conservation (cSAC) related to that river. The geology of the site is such that the council's consultants state that ' groundwater in the bedrock is in hydraulic continuity with groundwater in the overburden. The waste sources therefore have the potential to contaminate groundwater beneath the site in the sands and gravels in the underlying bedrock. It is likely that groundwater in the region discharges to the Carriggower (sic) River and therefore any contamination of groundwater at the site has the potential to impact on the Carriggower River via natural groundwater flow' (White Young Green (WYG) Tier 2 & 3 report, p. 16 (reference to tiers is reference to the different stages in the risk assessment process)).

Illegal dumping 1979-2001

4 Illegal dumping occurred on the site by the council, Swalcliffe Ltd. and other entities between 1979 and 2001. The site was at that time owned by Mr. John O'Reilly. Dumping by the council was facilitated by middle management rather than senior management. The council's senior management say they found out about the illegal dump in 2001 and took steps to close it at that point.

5 The waste on the site consists of three primary waste Zones; A, B and C (also variously described in the papers as landfills nos. 1, 2 and 4). (Incidentally, while the council appeared to dispute the term ' landfill' as applied to an illegal dump, the EPA code of practice uses the term ' illegal landfill' in precisely this context.) For reference purposes the rest of the site, on which some waste has also been deposited, can be regarded as Zone D (that is, the entire site minus A, B and C).

6 The council accepts that before remediation, there was non-inert and hazardous waste on site.

7 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 by the indication that the intention was to seal the site rather than remediate. The letter of complaint appears to constitute an ' opening of the case' by the Commission, and the Department have been trying to close the case ever since. Their main contribution to this end was a detailed response document on 26th June, 2015, following on from their encouragement of the council to engage in direct remediation. However, so far I have not been informed whether the Commission has or has not formally closed the complaint as yet. As noted in the No. 2 judgment, the 2015 response was to some extent inaccurate and contradictory, and presumably the Commission has now been informed of this. Further inaccuracy has now arisen, discussed further below, which also needs to be brought to the Commission's attention. I am informed that the 2015 response document has been removed from the Department's website.

The 2005 proceedings

8 The council initially sought to have the other polluters rectify the site and commenced proceedings in 2005 seeking an order under s. 58 of the Waste Management Act 1996 ("the 1996 Act") in that regard against Brownfield Restoration Ireland Ltd. and various other parties, peaking at 13 defendants at its height.

9 The site was registered to the ownership of Rockbury Ventures Ltd. on 28th July, 2006.

10 Brownfield (the effective parent company of Rockbury) obtained a licence from the Environmental Protection Agency ( EPA) on 21st September, 2006, which required that '[a]ll ... non-inert wastes shall be removed off-site to an approved disposal/recovery facility' (condition 1.3). The application was accompanied by an Environmental Impact Statement (EIS). The extent of the environmental impact assessment is not set out expressly in the decision but is to be inferred therefrom to the extent that the EPA clearly envisaged that removal of all waste would not cause an inappropriate adverse impact on the environment. As the site significantly affects a European site, indeed is part of it, an appropriate assessment (AA) appears to have been required; but this did not happen. The parties were here agreed that the EPA licence format (which Mr. Bland says is still being used) appears to fall short of what is required by the jurisprudence on EIA/AA. This is something the EPA might wish to attend to going forward.

11 The permission envisaged that only inert waste recovered...