O'Connor v County council of the County of Offaly

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 13 October 2017
• Neutral Citation: [2017] IEHC 606
• Docket Number: [2016 No. 468 JR]
• Court: High Court
• Date: 13 October 2017

BETWEEN

FERGUS O'CONNOR

APPLICANT

AND

COUNTY COUNCIL OF THE COUNTY OF OFFALY

RESPONDENT

AND

TAG-A-BIN LIMITED

FIRST NAMED NOTICE PARTY

AND

COUNTY COUNCIL OF THE COUNTY OF MEATH

SECOND NAMED NOTICE PARTY

[2017] IEHC 606

Baker J.

[2016 No. 468 JR]

THE HIGH COURT

JUDICIAL REVIEW

Environment, Construction and Planning – S. 3 of the Environment (Miscellaneous Provisions) Act 2011 – Waste Management Act 1996 – Waste Management (Collection Permit) Regulations 2007.

Facts: The applicant challenged the decision of the respondent for granting a renewal of the national waste collection permit to the first notice party. The applicant sought a declaration to that effect that the respondent had failed to apply art. 29 of the Waste Management (Collection Permit) Regulations 2007. The applicant argued that s. 3 of the Environment (Miscellaneous Provisions) Act 2011 applied to the present proceedings. The respondent alleged that the threshold requirement laid down under s. 4(1)(a) of the 2011 Act had not been met in the present case as no compliance or enforcement of the statutory requirement was in issue while the permit was granted.

Ms. Justice Baker made a declaration pursuant to s. 7 of the 2011 Act that the special costs provisions of s.3 of that Act applied to the present proceedings. The Court held that the scope of s. 4(1) of that Act was broad enough to include the proceedings, which seek to ensure compliance with a statutory requirement even where there was no permit issued under a statute, the conditions of which were claimed to have been breached. The Court found that the test laid down under s. 4(1)(a) of the 2011 Act had been met and the present case was for the purpose of ensuring compliance with a statutory requirement within that subsection. The Court observed that there would be damage to the environment by dumping of the waste in the relevant premises as evidenced by the documentary evidence in the case. The Court took into account the financial hardship of the applicant before making a declaration under s. 7 of the 2011 Act.

JUDGMENT of Ms. Justice Baker delivered on the 13th day of October, 2017.

1 This judgment concerns the scope of the special costs provisions of s. 3 of the Environment (Miscellaneous Provisions) Act 2011 (‘the Act’).

2 The applicant has commenced proceedings for judicial review of a decision of Offaly County Council (‘Offaly’) made on 31st March, 2016, by which it granted Tag-A-Bin Limited, the first notice party, a renewal of a national waste collection permit.

3 Offaly is the body nominated under s. 34(1)(a)(aa) of the Waste Management Act 1996 and is thereby charged with responsibility for renewing national waste collection permits in respect of different functional areas in the State. The applicant is the owner of land adjoining the waste facility operated by Tag-A-Bin, and until the matters complained of in these proceedings, operated the business of a riding school and equestrian centre.

4 The grounds on which relief in the form of certiorari and declaratory relief is sought are, inter alia, that the respondent had failed to properly apply, and/or had acted contrary to, Article(s) 28 and/or 29 of the Waste Management (Collection Permit) Regulations 2007 ( S.I. No. 820/2007) (‘the Regulations of 2007’), as amended, and s. 34A of the Waste Management Act 1996. It is also pleaded that the Habitats Directive (Council Directive 92/43/EEC of 21 May 1992) and the European Communities (Birds and Natural Habitats) Regulations 2011 ( S.I No. 477/2011) have not been complied with by the respondent in its decision to grant the licence or decline to revoke the licence. Relief is also sought for a declaration that Offaly is acting ultra vires and without jurisdiction in purporting to act as a national waste permit collection office.

5 By notice of motion dated 23rd January, 2017, the applicant seeks a declaration pursuant to s. 7 of the Act that the special costs provisions of s. 3 apply to the proceedings. The application is opposed by Offaly.

6 Prior to the issue of the motion, the applicant through his solicitor by letter of 18th October, 2016 requested that the respondent agree that s. 3 of the Act applies to the proceedings. Following detailed correspondence between the parties, the respondent by letter of 17th November, 2016 refused the request, in reliance on an argument that the threshold requirement in s. 4(1)(a) of the Act had not been met as the proceedings were not for the purpose of ensuring compliance with, or enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent. That argument formed the basis of the opposition at the hearing of the motion.

Statutory provisions

7 The relevant statutory provisions are found in Part 2 of the Act and the long title recites that one of the objects of the Act is ‘to give effect to certain articles’ of the Aarhus Convention and that judicial notice be taken of that Convention.

8 Section 3 envisages that the starting point in regard to costs in proceedings to which Part 2 of the Act applies is that each party bear its own costs, and to that extent s. 3(1) displaces the normal rule that costs ‘follow the event’.

9 As Noonan J. said in Diamrem Limited v. Cliffs of Moher Centre Limited & Anor. [2017] IEHC 191, section 3 ‘establishes a very significant exception to the rule that costs follow the event’ (para. 27).

10 Section 4 of the Act sets out the types of proceedings to which s. 3 applies and s. 4(1) provides as follows:

‘(1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person—

(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4), or

(b) in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent,

and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.’

11 It is clear from the judgment of Hogan J. in McCoy & Anor. v. Shillelagh Quarries Limited & Ors. [2015] IECA 28, [2015] 1 I.R. 627 that the reference to ‘statutory requirement’ in s. 4(1)(a) of the Act is ‘a free standing one which is distinct and separate from proceedings designed to ensure the compliance with or enforcement of a condition or other requirement of a licence permit or other form of development consent’ (para. 28). The threshold tests are alternative.

12 A party who seeks to rely on s. 3 of the Act must also establish that the failure to comply with the statutory requirements, or the conditions of a licence or permit, is causing or is likely to cause damage to the environment.

13 ‘Damage to the environment’ is defined in s. 4(2) as including damage, inter alia to air, water, soil, land, landscape, biological diversity, health and safety of persons and conditions of human life. While the respondent denies that the applicant has established a causative link between the alleged failures, the subject matter of the proceedings, and damage or likely damage to the environment, and argues that no credible allegation has been made, or evidence adduced, that environmental damage has occurred or is likely to occur, there is no argument made that the proceedings do not concern the environment as broadly defined in section 4(2).

14 ‘Damage’ is defined in s. 4(5) of the Act in broad terms as including ‘any adverse effect on any matter’.

15 Section 4(4) is also of relevance and identifies the type of licence or permit to which s. 4(1)(b) applies. The relevant provision is s. 4(4)(e):

‘(4) For the purposes of subsection (1), this section applies to—

…

(e) a waste collection permit granted pursuant to section 34, or a waste licence granted pursuant to section 40, of the Act of 1996,’

16 Section 4(6) applies to a licence, permit or any ‘renewal or revision of such licence’. Section 4(6) provides:

‘(6) In this section a reference to a licence, revised licence, permit, permission, approval, lease or consent is a reference to such licence, permit, lease or consent and any conditions or other requirements attached to it and to any renewal or revision of such licence, permit, permission, approval, lease or consent.’

17 The Act expressly identifies proceedings for judicial review as coming within the relevant provisions, and s. 6(a) provides as follows:

‘6. — Section 3 applies to —

(a) proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, of proceedings referred to in section 4 or 5, …’

18 Accordingly, the present proceedings are civil proceedings in the form of judicial review to which s. 3 may apply.

The test in s. 4(1)

19 In McCoy & Anor. v. Shillelagh Quarries Limited & Ors., the Court of Appeal upheld the order of the High Court which made a determination that s. 3 applied to the proceedings. Those proceedings were taken under s. 160 of the Planning and Development Act 2000 (‘PDA’), and the respondent had argued that s. 4(1) did not apply to the proceedings, but only to proceedings which involved the enforcement of an existing planning permission or planning condition or other similar requirement, i.e. the enforcement of a positive decision by the planning authority or other similar body. The defence to the substantive proceedings in that case, inter alia, was that the respondent claimed to be continuing a pre-1964 user of a quarry in respect of which no planning...