O'Connor v The County Council of the County of Offaly

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Murray
• Judgment Date: 20 March 2020
• Neutral Citation: [2020] IECA 72
• Date: 20 March 2020
• Docket Number: [C.A. No. 615 of 2017],COURT OF APPEAL RECORD NO. 2017 615

BETWEEN/

FERGUS O'CONNOR

RESPONDENT/APPLICANT

- AND -

THE COUNTY COUNCIL OF THE COUNTY OF OFFALY

APPELLANT/RESPONDENT

- AND -

TAG-A-BIN LIMITED

FIRST NAMED NOTICE PARTY

- AND -

THE COUNTY COUNCIL OF THE COUNTY OF MEATH

SECOND NAMED NOTICE PARTY

[2020] IECA 72

Whelan J.

Noonan J.

Murray J.

COURT OF APPEAL RECORD NO. 2017 615

HIGH COURT RECORD NO. 2016/JR

THE COURT OF APPEAL

CIVIL

Environment (Miscellaneous Provisions) Act 2011 – Permit – Renewal – Appellant seeking to appeal from High Court order – Whether special costs provisions applied to the proceedings

Facts: The respondent, Mr O’Connor, challenged a decision of the appellant, the County Council of the County of Offaly, of 31 March 2016 to grant to the first notice party, Tag-A-Bin Ltd, a renewal of a national waste collection permit. The decision was made pursuant to the provisions of the Waste Management (Permit Collection) Regulations 2007-2016 (the 2007 Regulations). Leave to seek relief by way of judicial review was granted on 27 June 2016 by Humphreys J. Section 3 of the Environment (Miscellaneous Provisions) Act 2011 provides that the normal principle governing the award of costs in proceedings – that they follow the ‘event’ – does not apply to certain categories of legal action. Section 7 of the Act enables a party to proceedings at any time before or during the course of those proceedings to seek a determination from the Court that s. 3 applies to that action. By order of the High Court (Baker J) of 14 November, the Court declared pursuant to the former provision that the special costs provisions of the latter section applied to these proceedings. That order followed from a reserved judgment delivered on 13 October, 2017 ([2017] IEHC 606) and was the subject of an appeal to the Court of Appeal. The appellant’s submissions reduced themselves to six issues arising from the proper interpretation of ss. 3 and 4 of the Act.

Held by Murray J that: (i) there is no basis for the suggestion that s. 3 does not apply to proceedings seeking relief by way of judicial review; (ii) s. 4(1)(a) is engaged where proceedings can be properly characterised as being for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement; (iii) the scope of proceedings referred to s.4(1)(a) is limited to cases in which, looking to the action as a whole, the applicant seeks to ensure compliance with or enforce into the future, an identified statutory requirement; (iv) the applicant’s object was, when he issued the proceedings, to preclude the continuation of an activity which he said was unlawful, therefore Baker J was correct in concluding that the proceedings thus understood fell within the terms of s. 4(1)(a); (v) he could see no basis for superimposing on that statutory scheme a generally applicable requirement that an applicant for an order under s. 7 establish that his case meets anything more than the basic threshold of stateability; (vi) the respondent’s case insofar as based on Articles 28 and 29 of the 2007 Regulations met that threshold of stateability; and (vii) given that the Court had heard no argument in respect of the specific issue of whether a claim can or should be split for the purposes of analysis under s. 3, and noting that the decision in Heather Hill Management Company CLG v An Bord Pleanála [2019] IEHC 186 was under appeal, it would not be appropriate to address that issue in this decision.

Murray J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Murray delivered on the 20th day of March 2020

1 Section 3 of the Environment (Miscellaneous Provisions) Act 2011 (‘the Act’) provides that the normal principle governing the award of costs in proceedings - that they follow the ‘event’ - does not apply to certain categories of legal action. Section 7 of the Act enables a party to proceedings at any time before or during the course of those proceedings to seek a determination from the Court that s.3 applies to that action. By Order of the High Court (Baker J.) of 14 November, the Court declared pursuant to the former provision, that the special costs provisions of the latter section apply to the present proceedings. That Order, which is the subject of this appeal, followed from a reserved judgment delivered on 13 October, 2017 ( [2017] IEHC 606).

2 The proceedings comprise a challenge to a decision of the appellant of 31 March 2016 to grant to the first notice party a renewal of a national waste collection permit. The decision was made pursuant to the provisions of the Waste Management (Permit Collection) Regulations 2007-2016 (‘the 2007 Regulations’). The authority of the appellant to grant the permit arose from its nomination as National Waste Collection Permit Office (‘NWCPO’) pursuant to s.34(1)(aa) of the Waste Management Act 1996 as amended. The permit authorised the first notice party to collect 75 categories of waste, including hazardous waste, in every area of the State.

3 The challenge was brought in a context where the respondent had operated a riding school and equestrian centre on property owned by him and adjacent to the premises of the first named notice party. That premises is in Dunmoe, County Meath. It was the respondent's contention that the first notice party was bringing waste onto its property, storing it there, and washing down trucks and skips used in the course of the collection activity. This was all said to be occurring in circumstances where the premises was not an authorised waste facility. The respondent contended inter alia that this represented a breach of the conditions of the permit. Those conditions provided that the first notice party should not cause environmental pollution during the course of the waste collection activity to which the permit related. Further, the lands at Dunmoe were not listed in the collection permit as an authorised facility to which the waste might be taken. The respondent had complained to both Meath County Council and the appellant of these matters and says that when reviewing the waste permit issued to the first notice party, the appellant ought - having regard to the respondent's complaints - to have either refused to review, or to have revoked, the permit. He says that had the permit been revoked, the first notice party would not have been in a position to collect waste and thus there would be no waste to be stored on or disposed of from the property. He contends that as a consequence of noise, odours and concerns for the health and safety of persons arising from the alleged activities of the first named notice party, he was forced to close the horse-riding school he had operated from his property.

4 Leave to seek relief by way of Judicial Review was granted on 27 June 2016 by Humphreys J. The application was made ex parte. The essential grounds relied upon by the respondent in support of the relief claimed in the proceedings are as follows:

(i) In granting the permit and/or in failing to revoke it, it was claimed that the appellant failed to properly investigate and/or consider the respondent's claim that the first notice party was acting in breach of conditions of the waste permit and/or failed to consider that its activities were causing or at risk of causing environmental pollution and/or failed to take proper account of the planning status of the lands on which the activity was being conducted. In consequence - it was claimed - the appellant acted in breach of inter alia Articles 28 and/or 29 of the 2007 Regulations.

(ii) It was contended that the appellant failed to carry out any screening for appropriate assessment when granting the permit. This, it was said, amounted to a failure to comply with Article 42 of the Habitats Directive and Regulations implementing same.

(iii) It was alleged that the appellant had acted ultra vires and without jurisdiction in purporting to act as the NWCPO when it had not lawfully been nominated to that position.

(iv) It was claimed there had been an ineffective delegation of power by the manager of the appellant to the appellant's director of services, the latter being the person who made the decision to grant renewal of the permit.

5 The central issue presented by this appeal depends on the relationship between these grounds and the provisions of s.3 of the Act. As I have noted, s.3(1) provides that subject to certain exceptions that are not relevant to this appeal, ‘in proceedings to which this section applies, each party (including any notice party) shall bear its own costs’. Subject to an exclusion that is not relevant here, the scope of s.3 is defined in s.4(1) of the Act, as follows:

“Section 3 applies to civil proceedings &hellips; 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.”

6 The licences or permits listed in ss. 4 and referred to in s.4(1)(a), include (ss (4)(e)):

“a waste collection permit granted pursuant to section 34, or a waste licence granted pursuant to section 40, of the Act of 1996.”

7 The phrase damage to the environment as it appears in s.4(1) is elaborated upon in two further sub sections of s.4. ‘Damage’ as defined in s.4(5) includes ‘any adverse effect on any matter specified in paragraphs (a) to (i) of subsection (2)’. ‘Damage to the environment’ includes damage to inter...