Cork County Council v O Regan & Anor, [2005] IEHC 208 (2005)

Docket Number:2003 37MCA
Judge:Clarke J.

2003 No 37 MCA THE HIGH COURTIN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 57 OF THE WASTE MANAGEMENT ACT 1996BETWEENCORK COUNTY COUNCILAPPLICANTANDLOUIS O'REGAN AND AGGREGATE SUPPLIES AND TRANSPORT LIMITEDRESPONDENTSJUDGMENT of Mr. Justice Clarke delivered 17th June, 2005.The proceedingsThese 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".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.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.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.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 ChargesOn 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 noted that the first named respondent owns all of the relevant lands while it would appear that the second named respondent operated the landfill business on the lands. I should, therefore, set out the charges to which the pleas of guilty related. They are as follows:-"That you the above named Aggregate Supplies and Transport Limited the accused is charged as follows:-1. That you did on 17th day of December, 2003 at Weir Island, Barryscourt, Carrigtoohil in the County of Cork in the Court Area and District Aforesaid dispose of or undertake the recovery of waste at a facility for which there was no licence in force in relation to the carrying on of the activity concerned at that facility contrary to the provisions of s. 39(1) of the Waste Management Acts 1996 to 2003.2. That you did on 17th day of December, 2003 at Weir Island, Barryscourt, Carrigtoohil in the County of Cork in the Court Area and District Aforesaid hold, transport, recover or dispose of waste in a manner that causes or is likely to cause environmental pollution contrary to the provisions of s. 32(1) of the Waste Management Acts 1996 to 2003."The Relief now ClaimedBefore passing from the history of these proceedings I should also add that between the adjourned date in March and the matter coming on for hearing again before me, the Applicant refined it's position in respect of this application by indicating that, at this stage, the only relief which was being sought was for an order to the effect that:-"The respondents forthwith commission and pay Fehilly Timiney to perform a site investigation and report, in accordance with the recommendations of Fehilly Timiney and of Dr. Jervis Good, to include a mitigation plan".Fehilly Timiney were retained by the environment department of the applicant to investigate the cost implications involved with an investigation into possible environmental pollution caused or which may be caused by unauthorised land filling of waste material at Weir Island.An initial report from Fehilly Timiney was proved in evidence. It noted that no previous site investigations had been conducted and, crucially, that the quantity and quality of materials deposited remains unclear.The initial report recommends a comprehensive site investigation and specifies, in some detain, the parameters of the recommended investigation.It should finally be noted that the initial report gives what are necessarily tentative costings for certain possible alternative strategies for the removal or remediation of the waste concerned.The circumstances which give rise to the application now made and to the suggestion that further consideration of making...

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