Brownfield Restoration Ireland Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 18 December 2023
• Neutral Citation: [2023] IEHC 712
• Court: High Court
• Docket Number: [H.SP.2008.0000056]

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 712

[H.SP.2008.0000056]

THE HIGH COURT

PLANNING & ENVIRONMENT

Appointment of expert – Modality of instruction – Costs – Defendant seeking the appointment of an independent expert – Whether the expert’s brief should be wide

Facts: The defendant, Wicklow County Council (the council), sought an order pursuant to the No. 8 judgment of the High Court ([2023] IEHC 137) directing the appointment of an independent expert to ensure and guarantee independently the volume of waste and soil removed from the quarry site at Whitestown in West Wicklow and in that regard to carry out the following: (i) to review and assess the suitability of the approach, methodology, site investigation and environmental monitoring data, risk assessment(s) and all other relevant information used in the preparation of the remediation plan to determine that the soils remaining in situ in Zones D, E, F and G do not pose an environmental threat; (ii) to review and assess the approach and methodology proposed in the remediation plan to determine all waste and potentially contaminated soil is removed from Zones A, B and C; and (iii) to review and assess all scientific evidence to include but not limited to environmental data and risk assessments to confirm that all waste and potentially contaminated soil is removed from the site.

Held by Humphreys J that the expert be directed to report at such times and in such manner as may be directed by the court from time to time on such matters as arise in the proceedings as the parties disagree on and as the court considers could be assisted by the expert, including what is required to ensure and guarantee that the remediation plan or any variation thereof shall achieve the objectives of the court’s orders for the full remediation of the site, in line with the judgments and orders of the court. Humphreys J held that the expert be instructed via the council’s law agent passing on instructions to the expert in accordance with either such matters as are agreed or in default of agreement as the court directs, and passing on to the court and the applicant such queries or reports as the expert wishes to communicate, on the basis that all correspondence be copied to the applicant and that in the event of disagreement the court be so advised, and on the basis that the instructions be provided in a way that gives effect to directions of the court and thus not in terms that are likely to be contentious, without informing the applicant first and seeking directions. Humphreys J held that the council be responsible for the mechanics of preparing and filing any affidavits by the expert including affidavits exhibiting reports. Humphreys J held that the issues before the court be sequenced as set out in the judgment.

Humphreys J held that there be liberty to apply generally, without prejudice to the more specific liberty to apply in relation to costs referred to below. Humphreys J held that the matter be listed for mention in respect of the question of who the expert should be, at the end of the list on Monday 15th January, 2024, for the appropriate directions to enable that question to be heard. Humphreys J held that the expert be paid by the council within 2 months of the expert issuing a request for payment from time to time, and any disagreement as to amount or timing be dealt with by the court. Humphreys J held that the applicant’s reasonable costs of complying with any request to it by the expert be paid by the council. Humphreys J held that the applicant had liberty to apply for any other costs of the applicant in engaging with the expert from time to time. Humphreys J held that the applicant had liberty to apply from time to time for payment on account in respect of any costs already awarded as of the date of such application. Humphreys J held that costs of the application be adjourned to be dealt with when the applicant’s costs motion is heard, on the basis that the parties would prepare an overall table of all of the various applications and time periods that have given rise to costs not already disposed of, and setting out their respective positions on the appropriate orders.

Relief granted.

(No. 10)

JUDGMENT of Humphreys J. delivered on Monday the 18th day of December, 2023

Judgment history

1 . In the 44 years since a huge illegal dump, possibly the largest in the history of the State, began operating at a quarry site at Whitestown in West Wicklow in around 1979 onwards, the situation has led to at least 5 sets of proceedings, 22 years of litigation and numerous judgments and decisions of which this is the eighteenth. It might perhaps be worth having a quick recap of the history of the matter, seeing as we are on the cusp of the expiry, in January, 2024, of the six and a half years fixed by the court for remediation, with a grand total of zero tonnes of waste out of the minimum of a quarter of a million tonnes on site having been removed since the court's order requiring that to be done.

2 . A pessimist could rather be forgiven for hoping that, all being well, we may see remediation before hitting the official Jarndyce v. Jarndyce threshold of 54 years in 2033 (see Lehane v. Wymes [2021] IEHC 427, [2021] 7 JIC 0206, para. 1).

3 . The proceedings generated by this situation are as follows:

• (i) enforcement proceedings [Case C-494/01] against Ireland by the European Commission initiated on 20th December, 2001 and finalised by the CJEU in 2005;

• (ii) waste enforcement proceedings brought by Wicklow County Council against various alleged polluters [2005 No. 89 SP] and now adjourned generally;

• (iii) a defamation action by the council's authorised officer Donal O Laoire against Brownfield [2005 No. 1472P], in respect of which there seems to have been no recorded activity since 2020;

• (iv) the present waste enforcement proceedings brought by the current landowner, Brownfield, against the council [2008 No. 56 SP]; and

• (v) an action for damages and constitutional and other reliefs brought by Brownfield against the council [2020 No. 5730P], currently adjourned to 22nd January, 2024.

4 . The previous decisions are as follows:

• (i) in Commission v Ireland, judgment of 26 April 2005, Commission v Ireland, C-494/01, ECLI:EU:C:2005:250, [2005] ECR-I 3331, the CJEU ruled that there had been a failure to ensure a correct implementation of the provisions of Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste, by reference to nearly 100 sites of which the Whitestown dump was one;

• (ii) 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;

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

• (iv) 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;

• (v) 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;

• (vi) 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 remediation proceedings on the council's application, pending proposed remediation actions by the council;

• (vii) 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;

• (viii) 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;

• (ix) 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;

• (x) 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 19th January, 2024;

• (xi) 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;

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

• (xiii) in Brownfield Restoration Ireland Ltd. v. Wicklow County Council [2021] IESCDET 71 (Supreme Court Determination, Not yet circulated, 21st June, 2021, O'Donnell, MacMenamin and Woulfe JJ.),...