Brownfield Restoration [Ireland] Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 21 March 2023
• Neutral Citation: [2023] IEHC 137
• Court: High Court
• Docket Number: [2008 No. 56 SP]

Brownfield Restoration Ireland Limited

Plaintiff

and

Wicklow County Council

Defendant

and

The Environmental Protection Agency and The Minister for Housing, Local Government and Heritage

Notice Parties

[2023] IEHC 137

[2008 No. 56 SP]

THE HIGH COURT

Remediation – Draft plan – Approval – Defendant seeking approval of draft remediation plan – Whether the defendant’s draft remediation plan ought to be approved

Facts: The High Court (Humphreys J) in the No. 1 judgment, granted the application of the defendant, Wicklow County Council, for the modular trial of the proceedings. In the No. 2 judgment, he decided a number of preliminary issues including the rejection of certain allegations of misconduct against the defendant. In the No. 3 judgment, he decided in principle to order remediation. In the No. 4 judgment, he made the formal order directing remediation. In the No. 5 judgment, he decided on the question of costs. In the No. 6 judgment, he directed that the defendant was to complete the biodiversity surveys required for the preparation of a Natura Impact Statement. In the No. 7 judgment, he determined the agenda for the hearing on the remediation plan approval. At issue in the No. 8 judgment was approval or otherwise of the defendant’s draft remediation plan.

Held by Humphreys J that: (i) the timeline for remediation would be amended including the overall extension of the time for subsequent steps from 50 to 52 months, the addition of sub-deadlines and the extension of the monitoring period from 6 to 12 months – the individual timelines for steps following this judgment would be binding deadlines subject to the overall envelope of the long-stop date; (ii) the draft remediation plan was approved insofar as it related to the removal of waste and contaminated or potentially contaminated soil in Zones A to C; (iii) the ecological works already carried out and proposed to be carried out by the defendant were approved, which would include any further works necessary to protect flora or fauna that may be directed by a suitably qualified ecologist in the course of the remediation process; (iv) the defendant’s proposals regarding the finished profile and future use of the lands were approved, and in particular the manner of remediation would be such that the final use of the land would be as calcareous and neutral grassland with a mosaic of scrub and wetland habitats ultimately providing lands suitable for low intensity grazing and the conservation of existing habitats and species of biodiversity value in accordance with the submission from the National Parks and Wildlife Service and in a manner which would not affect the integrity of the Slaney River SAC.

Humphreys J held that: (v) not later than the completion of the implementation of the plan as so approved, the defendant must do one or other of the following – (a) obtain the agreement of the plaintiff, Brownfield Restoration Ireland Ltd, that the orders had been complied with in such zones, (b) obviate the need for transfer of the land to the plaintiff by acquiring the land, or (c) involve an independent person with expertise in the area, to be agreed by the parties, so that the question of compliance could be reviewed in the light of such person’s report (in default of such agreement the person would be appointed by the court) and the cost of the independent expert should be borne by the defendant; (vi) not later than the completion of the implementation of the plan as so approved, the defendant must revert to the court with proposals for the completion of remediation and the carrying out of an Environmental Impact Assessment process regarding any works other than removal of waste and contaminated or potentially contaminated soil; (vii) if the defendant intended at that point not to remove any material from areas D to G it must do one or other of the following – (a) obtain the agreement of the plaintiff to such an approach, (b) obviate the need for transfer of the land to the plaintiff by acquiring the land, or (c) involve an independent person with expertise in the area, to be agreed by the parties, so that the question could be reviewed in the light of such person’s report (in default of such agreement the person would be appointed by the court) and the cost of the independent expert should be borne by the defendant; (viii) pending the foregoing, the proposals regarding non-removal of material from Zones D to G and regarding post-removal works such as in-filling were adjourned pending further application by the defendant in due course; (ix) in the event that any further proposed change in either the plan or ecological conditions created the possibility of an effect on a European site, the defendant would be required to revert to the court for further directions in relation to Appropriate Assessment.

Plan approved in part.

(No. 8)

JUDGMENT of Humphreys J. delivered on the 21 ^st day of March, 2023

1 . As noted in previous judgments, the controversy with which we are now concerned began forty-four years ago as a result of illegal dumping on a site in Whitestown, County Wicklow. This is the fifteenth decision in the matter, the previous ones being as follows:

• (i). In Wicklow County Council v. O'Reilly (No. 1) [2006] IEHC 265, [2006] 2 JIC 0803 (Unreported, High Court, Clarke J., 8th February, 2006), the court made orders as to the appropriate defendants in waste enforcement proceedings brought by the council.

• (ii). In Wicklow County Council v. O'Reilly (No. 2) [2006] IEHC 273, [2006] 9 JIC 0801 [2006] 3 I.R. 623, the court declined to stay the proceedings pending prosecutions arising from the illegal dumping.

• (iii). 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.

• (iv). 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 although it decided that the council had not made proper discovery.

• (v). In Wicklow County Council v. O'Reilly (No. 5) ( Ex tempore, Not circulated, O'Keeffe J., 20 ^th December, 2011), after 23 days of hearing, the court decided to adjourn the remediation proceedings on the council's application, pending proposed remediation actions by the council. The proceedings so derailed never effectively restarted but were instead replaced by the present proceedings, which were waste enforcement proceedings brought by the landowner against the council, partly on the basis that the remediation actions carried out were inadequate or inappropriate.

• (vi). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 1) [2017] IEHC 310, ( [2017] 4 JIC 2604 Unreported, High Court, 26th April, 2017) (noted Joseph Richardson BL (2017) 24(2) I.P.E.L.J. 56), I granted the council's 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 allegations of misconduct against the council.

• (viii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 3) [2017] IEHC 456, ( [2017] 7 JIC 0706 Unreported, High Court, 7th July, 2017) (noted Estelle Feldman (2017) A. Rev. Ir. Law 95), I decided in principle to order remediation.

• (ix). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 4) [2017] IEHC 486, ( [2017] 7 JIC 1907 Unreported, High Court, 19th July, 2017), I made the formal order directing remediation and set out indicative timelines for fifteen steps with a definite final date for completion of full remediation and handover to the landowner. That long-stop date was in effect 19 ^th January, 2024.

• (x). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 5) [2017] IEHC 487, ( [2017] 7 JIC 1908 Unreported, High Court, 19th July, 2017), I decided on the question of costs.

• (xi). In Wicklow County Council v. O'Reilly [2019] IECA 257, [2019] 10 JIC 1607 (Unreported, Court of Appeal, Costello J., 16 ^th October, 2019), the Court of Appeal dismissed an appeal regarding the timeline allowed for remediation. It partly allowed an appeal regarding costs.

• (xii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council [2021] IESCDET 71, (Supreme Court Determination, Not yet circulated, 21 ^st June, 2021, O'Donnell, McMenamin and Woulfe JJ.), the Supreme Court refused leave to appeal in relation to the timeline issue.

• (xiii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 6) [2021] IEHC 599, ( [2021] 9 JIC 3007 Unreported, High Court, 30th September, 2021), I directed that (without prejudice to the long-stop date) the council was to complete the biodiversity surveys required for the preparation of a Natura Impact Statement by 17 ^th December, 2021; and that the matter be listed for mention to deal with the subsequent steps.

• (xiv). In Brownfield Restoration Ireland Ltd v Wicklow County Council (No. 7) [2022] IEHC 662, ( [2022] 12 JIC 0201 Unreported, High Court, 2nd December, 2022), I determined the agenda for the hearing on the remediation plan approval, and directed that any approval would be without prejudice to the previous orders.

2 . The formal order for remediation of the site was made in the No. 4 judgment, and indicative timetables were set out for fifteen steps in that regard, with a final long-stop date which was, as noted above, in effect 19 January, 2024. The current step is step 9 which is as follows: “[p]resentation of agreed final draft of remediation plan to court or in the event of no agreement, presentation of council's final draft plan...