Brownfield Restoration Ireland Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 30 September 2021
• Neutral Citation: [2021] IEHC 599
• Docket Number: [2008 No. 56 SP]
• Court: High Court

Between

Brownfield Restoration Ireland Limited

Plaintiff

and

Wicklow County Council

Defendant

and

The Environmental Protection Agency

Notice Party

[2021] IEHC 599

[2008 No. 56 SP]

THE HIGH COURT

(NO. 6)

JUDGMENT of Humphreys J. delivered on Thursday the 30th day of September, 2021

1 Illegal dumping on a site in Whitestown Co. Wicklow began in 1979, commencing a 42-year long and counting saga that awaits final resolution. In 2005, Wicklow County Council commenced proceedings to seek remediation of that site. In Wicklow County Council v. O'Reilly (No. 1) [2006] IEHC 265, [2006] 2 JIC 0803 (Unreported, High Court, Clarke J., 8th February, 2006), in those proceedings, the court made orders as to the appropriate defendants.

2 In Wicklow County Council v. O'Reilly (No. 2) [2006] IEHC 273, [2006] 3 I.R. 623, the court declined to stay the proceedings pending criminal proceedings arising from the illegal dumping.

3 In Wicklow County Council v. O'Reilly (No. 3) [2007] IEHC 71, [2007] 3 JIC 0203 (Unreported, High Court, Clarke J., 2nd March, 2007), the court directed the trial of a preliminary issue regarding the liability of a director. In 2008, Brownfield Restoration Ltd., the current owners, commenced the present counter-proceedings against the council.

4 In Wicklow County Council v. O'Reilly (No. 4) [2010] IEHC 464, [2010] 12 JIC 0705 (Unreported, High Court, O'Keeffe J., 7th December, 2010) the court refused a mistrial application and determined that the council had not made proper discovery.

5 In Wicklow County Council v. O'Reilly (No. 5) ( Ex tempore, Not circulated, O'Keeffe J., 20th December, 2011), after 23 days of hearing, the court decided to adjourn the council's remediation proceedings pending proposed remediation actions by the council. Those proceedings never got back on the rails, but were superseded in effect by the 2008 enforcement proceedings brought by the Brownfield, which in effect developed to also encompass a complaint against the council's efforts at remediation.

6 In Brownfield Restoration Ireland Limited v. Wicklow County Council (No. 1) [2017] IEHC 310, ( [2017] 4 JIC 2604 Unreported, High Court, 26th April, 2017), I granted the council's application for the modular trial of these proceedings.

7 In Brownfield Restoration Ireland Limited v. Wicklow County Council (No. 2) [2017] IEHC 397, ( [2017] 6 JIC 1201 Unreported, High Court, 12th May, 2017), I decided a number the EU law issues including that appropriate assessment (AA) is not required where the court directs remediation. That has become a significant issue now for reasons that will be explained shortly.

8 In Brownfield Restoration Ireland Limited v. Wicklow County Council (No. 3) [2017] IEHC 456, ( [2017] 7 JIC 0706 Unreported, High Court, 7th July, 2017), I decided in principle to order remediation.

9 In Brownfield Restoration Ireland Limited v. Wicklow County Council (No. 4) [2017] IEHC 486, ( [2017] 7 JIC 1907 Unreported, High Court, 19th July, 2017), I directed remediation and set out indicative timelines of 15 steps with a definite final date for full remediation and handover. Allowing for the various steps specified, that final date is 19th January, 2024. That remains as a binding deadline for the council, enforceable in the same way as any other order of the court, all things being equal (which they may or may not be). I did, however, allow the council to engage in a process along the lines of AA, in a context where the earlier No. 2 ruling indicated that AA was not strictly required.

10 In Brownfield Restoration Ireland Limited v. Wicklow County Council (No. 5) [2017] IEHC 487, ( [2017] 7 JIC 1908 Unreported, High Court, 19th July, 2017), I decided on costs (the costs order was later varied by the Court of Appeal).

11 On 29th July, 2021 I gave further directions as set out below and now take the opportunity to give reasons for doing so. This is now the 11th High Court judgment in this matter.

Implementation of the existing orders

12 In May 2020, the council brought a motion to approve a methodology of removal under the Environmental Protection Agency ( EPA) code of practice.

13 Brownfield's response was essentially that the council was ignoring the previous judgments and orders and that instead of working on the methodology of implementing the removal directed by the court, the council was rewinding the clock and asking whether and to what extent removal of waste was required, or asking what further studies should be carried out, despite the fact that all of this had already been the subject of a definitive order after lengthy and hotly contested proceedings on oral evidence.

14 The council then indicated that in view of Brownfield's position it would not proceed with the motion and would move straight on to the remediation plan, although clearly much time had passed in the meanwhile....