Cork County Council v O'Regan

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date17 June 2005
Neutral Citation[2005] IEHC 208
Docket Number[2003 No. 37 MCA]
Date17 June 2005

[2005] IEHC 208

THE HIGH COURT

No 37 MCA/2003
CORK CO COUNCIL v O'REGAN & AGGREGATE SUPPLIES & TRANSPORT LTD
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 57 OF THE WASTE MANAGEMENT ACT 1996

BETWEEN

CORK COUNTY COUNCIL
APPLICANT

AND

LOUIS O'REGAN AND AGGREGATE SUPPLIES AND TRANSPORT LIMITED
RESPONDENTS

WASTE MANAGEMENT ACT 1996 S31(1)

WASTE MANAGEMENT ACT 1996 S39(1)

WASTE MANAGEMENT ACT 1996 S32(1)

WASTE MANAGEMENT ACT 1996 S57

WASTE MANAGEMENT ACT 1996 S57(1)

WASTE MANAGEMENT ACT 1996 S34

PROTECTION OF THE ENVIRONMENT ACT 2003 S48

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46

WASTE MANAGEMENT ACT 1996 S5

EEC DEC 2000/532/EC

WASTE MANAGEMENT ACT 1996 S4

EUROPEAN COMMUNITIES (AMDT OF WASTE MANAGEMENT ACT 1996) REGULATIONS 1998

WICKLOW CO COUNCIL v FENTON & SWACLIFFE LTD T/A DUBLIN WASTE & MORIARTY 2002 4 IR 44

EEC DIR 92/43

EEC DIR 79/409

WILDLIFE ACT 1976

WILDLIFE ACT 2000

LOCAL GOVT ACT 2001 S227(2)

MORRIS v GARVEY 1982 ILRM 177

DUBLIN CORPORATION v BORD TELECOM EIREANN PLC (ORSE EIRCOM PLC) & ORS 2002 3 IR 327

COMMISSION v IRELAND C-494/01 ECJ

WASTE MANAGEMENT ACT 1996 S55

WASTE MANAGEMENT ACT 1996 S56

PLANNING AND ENVIRONMENTAL LAW:

Waste management

Estoppel - Retention planning permission -Exempted development - Whether earlier application for planning permission estops applicant from asserting development is exempted - Dublin County Council v Tallaght Block Co Ltd [1982] ILRM 534 and Dublin County Council v Tallaght Block Co Ltd(Unrep, SC, 17/5/1983) overruled - Local Fenton (No 2) [2002] 4 IR 44 and Morris v Garvey [1983] IR 319 followed - Director of Public Prosecutions (Ivers) v Murphy [1999]1 IR 98 considered - Waste Management Act 1996 (No 10), s 57 - Relief granted (2003/37MCA - Clarke - 17/6/2005) [2005] IEHC 208

CORK CO COUNCIL v O'REGAN & AGGREGATE SUPPLIES & TRANSPORT LTD

Facts: section 57 of the Waste Management Act 1996 provides that, where on application by any person to the High Court, the court is satisfied that waste is being held, recovered or deposited in a manner that causes or is likely to cause environmental pollution, it has a wide discretion to make various orders against the polluter, including those as to costs as it considers appropriate. The applicant sought an order under section 57 of the Act of 1996 requiring, initially, the respondents to pay for a consultant's report which would make proposals as to the best method for remedying the effects of illegal dumping on a site owned and managed by them and any consequent orders that may be necessary thereafter as identified in such report. The respondents resisted the application on the basis, inter alia, that any dumping or other activities which would justify the making of an order had ceased as of the date of the hearing. The respondents also contended that, if the factors necessary to establish the court's jurisdiction to make an order under section 57 were present, the court should exercise its discretion against the applicant as section 57 was a disproportionate response when the remedies under sections 55 and 56 were available to the applicant.

Held by Clarke J in making the order sought that to place a construction on section 57 of the Act of 1996 which, as a condition to the exercise of the court's discretion, required that the circumstances which would justify making an order continue in existence up to the date of the hearing would be absurd. Accordingly, that in order to establish the conditions necessary for the making of an order under section 57, it was necessary for an applicant to establish that those conditions were present at any time from the commencement of the proceedings to the date of the hearing. The applicant had established that there was waste being held and disposed of at the site at the relevant time which posed a risk to the environment.

That once unauthorised activity was established, the respondent bore the onus of showing that any discretion should be exercised in his favour. There was nothing in the Act of 1996 which suggested that section 57 should only be used as a last resort when no other remedy was effective but that the response of the court should be proportional to the ends involved.

Reporter: P.C.

1

JUDGMENT of Mr. Justice Clarke delivered17th June, 2005 .

The proceedings
2

These proceedings were first commenced by Cork County Council ("The Applicant") by originating notice of motion dated 3rd June, 2003. In that motion the Applicant sought orders which required the cessation of the dumping of waste materials by means of land filling or otherwise at Weir Island, Barryscourt, Carrigtoohil in County Cork. Ancillary orders relating to permitting or accepting such waste were also sought and, of particular relevance to the issues which have now to be decided, at para. 4 an order was sought which if granted would direct the respondents to remove the relevant waste material and to dispose of same in accordance with the provisions of the Waste Management Act 1996 "and in a manner designed to prevent environmental pollution" or as might be directed by the court. Affidavits were exchanged and the matter came before the court (Quirke J.) on 17th November, 2003 on foot of an application for an interlocutory injunction. The order made on that date notes an undertaking on behalf of the respondents "not to hold recover or dispose of waste on Weir Island, Barryscourt, Carrigtoohil in the County of Cork including the candidate special area of conservation in a manner that causes or is likely to cause environmental pollution pending the hearing of these proceedings". The order also notes an undertaking given on behalf of the applicant to consider and process with expedition "any application for a Waste Permit submitted by the respondents or each of them in relation to Weir Island notwithstanding the existence of these proceedings".

3

On 11th February, 2004 the Applicant issued a second substantive originating notice of motion seeking the same relief as had been sought in the first substantive originating motion. That motion was returnable for 23rd February, 2004. The purpose behind the issuing of a second substantive motion seeking the same relief was that there had, in the intervening period since the issuing of the first originating notice of motion, been amendments to the relevant legislation which I will consider in more detail later in this judgment. The purpose of the second motion was, therefore, to seek, to the extent that it might be necessary, to obtain the benefit of the amended legislation.

4

In any event both substantive motions initially came on for hearing before me on 3rd March, 2005 . Having substantially opened the relevant law and affidavits counsel for the applicant sought to submit an additional affidavit which was designed to establish the course of criminal proceedings as against the respondents for breaches of ss. 31(1) and 39(1) of the Waste Management Act, 1996 (as amended) arising out of events occurring on 17th December, 2003 at Weir Island. The learned District Judge sitting at Midleton District Court formed the view that the relevant charges were sufficiently serious to warrant prosecution on indictment. On that basis the case came before Cork Circuit Criminal Court on 21st February, 2005, on indictment, where the first named respondent, in his capacity as secretary of the second named respondent, pleaded guilty on behalf of the second named respondent to the relevant charges. As a result His Honour Judge Patrick Moran imposed a fine on the second named respondent of €100,000 in respect of one charge with the second charge taken into consideration.

5

Counsel for the respondents objected to the late admission of that affidavit. Given that the respondents were parties to the criminal proceedings sought to be introduced in evidence I enquired of counsel for the respondents as to the manner in which it was contended the respondents would be prejudiced by the introduction of such evidence given that each of the respondents would have been well aware of the events in the courts concerned. The argument put forward by counsel for the respondents was to the effect that had the respondents been aware of the fact that the Applicant intended to rely upon the convictions further evidence might have been tendered in reply. As a result of the debate concerning that issue of prejudice and as a result of certain comments which I made in the course of that debate, counsel for the respondents was afforded a brief opportunity to take instructions after which I was informed that substantial works had been done at Weir Island since 2003. On that basis it seemed to me that there was arguably a prejudice as against the respondents in that if substantial works had been done since the date by reference to which the criminal convictions were recorded that might arguably be a matter material to the exercise of the courts powers in an application such as this. With some reluctance I was, therefore, persuaded to grant the adjournment concerned.

6

In that context I should, therefore, note that in the intervening period only one short affidavit was filed on behalf of the respondents (to which I will return in due course) and no mention is made in it of any works having been carried out since the relevant date for the pleas of guilty.

The Criminal Charges
7

On the basis, therefore, that there has been a plea of guilty to the relevant charges, that there has been a conviction recorded against the second named respondent on that basis, and that there is no evidence before the court to suggest that matters have changed since the date to which the charges relate, it seems to me that it is not open to the respondents, in these proceedings, to dispute the substance of the charges. It should be...

To continue reading

Request your trial
7 cases
  • Hanrahan v Greyhound Recycling and Recovery
    • Ireland
    • High Court
    • 26 Mayo 2017
    ...concerned is misconceived. It is based on the following dicta in the judgment of Clarke J in Cork County Council v O'Regan [2009] 3 IR 39 (at 46): "I am of the clear view that, in order to establish the conditions necessary for the making of an order under s. 57, it is necessary for an app......
  • Environmental Protection Agency v Neiphin Trading Ltd & Others
    • Ireland
    • High Court
    • 3 Marzo 2011
    ...& ORS (NO 2) 2002 4 IR 44 2002/28/7382 WASTE MANAGEMENT ACT 1996 S58 CORK CO COUNCIL v O'REGAN & AGGREGATE SUPPLIES & TRANSPORT LTD 2009 3 IR 39 2005/12/2461 2005 IEHC 208 LAOIS CO COUNCIL v SCULLY & ORS 2006 2 IR 292 2006/33/7051 2006 IEHC 2 WICKLOW CO COUNCIL v O'REILLY & ORS UNREP CLA......
  • The Waste Management Acts 1996 to 2003, Wicklow County Council v John O'Reilly and Others
    • Ireland
    • High Court
    • 8 Septiembre 2006
    ...[2005] 2IR 472; Laois Co Co v Scully [2006] IEHC 2, [2006] 2 IR 292; Wicklow Co Co v Fenton(No 2) [2002] 4 IR 44; Cork Co Co v O'Regan [2005] IEHC 208 (Unrep, Clarke J,17/6/2005) and Jefferson Limited v Bhetcha [1979] 1 WLR 898 considered - In Re National Irish Bank [1999] 3 IR 145 distin......
  • Brownfield Restoration Ireland Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 7 Julio 2017
    ...are capable of spreading to that latter site. (See for example the remarks of Clarke J. in Cork County Council v. O'Regan [2009] 3 I.R. 39, at p. 49 para. 26). 242 Thus in my view the site comes within each of the headings requiring mandatory remediation. Does the presumption of removal ap......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT