County Council for County of Laois v Noel Hanrahan and Others

JurisdictionIreland
JudgeMr. Justice William M. McKechnie.,Mr. Justice Fennelly
Judgment Date14 March 2014
Neutral Citation[2014] IESC 36
CourtSupreme Court
Docket Number[S.C. No. 411 of 2013].
Date14 March 2014
Laois Co Council v Hanrahan

BETWEEN:

THE COUNTY COUNCIL FOR THE COUNTY OF LAOIS
Applicant/Respondent on the Appeal

- and -

NOEL HANRAHAN, GERALDINE HANRAHAN AND COLM HANRAHAN
Respondents/Third Named Respondent as Appellant on the Appeal
The County Council for the County of Laois
Applicant/Respondent

And

Noel Hanrahan, Geraldine Hanrahan and Colm Hanrahan
Respondents/Appellant (Third Named)

[2014] IESC 36

Fennelly J.

McKechnie J.

Laffoy J.

Record No. 411/No. 2013
[S.C. No. 411/of 2013

THE SUPREME COURT

Environmental - Contempt of court - Appeal against High court judgment - Committed to prison –Illegal disposal of waste material - Failing to remove large volumes of polluting waste from parents" family farm in county Laois - Section58 Waste Management Act, 1996 - Imprisoned for six month definite period unless complies with order - Court retains the power to impose further periods of imprisonment - Not a permissible type of order - Whether impossible for him to comply with order - Burden on him to show he is financially unable

Facts: The appellant, Mr Colm Hanrahan, appeals against a judgment of the High court committing him to prison for failing to comply with a court order. The court order required him to remove a sizeable amount of polluting waste from his parents" family farm in county Laois, pursuant to s.58 Waste Management Act 1996. Laois County Council received numerous complaints as to the illegal disposing of waste on said land. The size and scale of the polluting waste was substantial and was consequently categorised as a moderate risk by expert environmental consultants. By Notice of Motion the council applied to the High court for orders against the respondents requiring them to discontinue the holding, recovery or disposal of waste, to mitigate the effects of what had already taken place and to excavate and remove all waste held on the lands and dispose of it at a suitably licensed facility. It estimated the cost of the required remedial works to be €312,000. The appellant alleged his failure to take remedial action was owing to his personal and family difficulties which frustrated his ability to deal with or have access to the lands. He purported to identify the party which he believed to have been responsible for the dumping of waste, namely Greyhound Waste Group, yet provided no evidence to this effect. Moreover, the appellant professed it was impossible for him to comply with the order owing to his modest financial affairs. Counsel for the appellant submitted that a high threshold was required to activate the Court"s jurisdiction to impose a punitive, fixed term sentence on a contemnor. Although his conduct admittedly amounted to contempt of court, his contempt could not be said to be outrageous, flagrant or giving rise to a level of serious misconduct. Counsel invoked the principle that the court should not make an order committing a person to court for contempt of an order when it was demonstrable that it was impossible for that person to comply with said order.

Held: Applying Keegan v de Burca [1971] IR 223 the judge explained the distinction between criminal and civil contempt. The judge recounted the terms of the High court order, namely that the appellant was to be committed to prison for six months, unless he complied with the order of the court whilst the court retained the power to impose further periods of imprisonment if deemed necessary. Reflecting upon the relevant authorities the judge declared this was not a permissible type of order. He concluded such an order unacceptably blurred the line between civil and criminal contempt. Subsequently, he ordered the High court order to be discharged and set aside and for the issue to be remitted to the High court for further consideration.

-High court order discharged and set aside. Matter to be remitted for further consideration.

WASTE MANAGEMENT ACT 1996 S58

SHELL E & P LTD v MCGRATH & ORS 2007 1 IR 671 2006/52/11082 2006 IEHC 108

ARANBEL LIMITED v DARCY & ORS 2010 3 IR 769 2010/3/527 2010 IEHC 272

DUBLIN CITY COUNCIL v MCFEELY & ORS 2013?Çë1 ILRM ?Çë40 2012 IESC 45

KEEGAN v DE BURCA 1973 IR 223

DAVIES, IN RE 1888 21 QBD 236 37 WR 57 4 TLR 580

COMMINS, STATE v MCRANN 1977 IR 78

ROSS CO LTD v SWAN 1981 ILRM 416

DANCHEVSKY v DANCHEVSKY 1974 3 AER 934 1974 3 WLR 709 1975 FAM 17

PROHIBITION OF FORCIBLE ENTRY AND OCCUPATION ACT 1971

IRISH BANK RESOLUTION CORP & ORS v QUINN & ORS UNREP SUPREME 24.10.2012 2012/18/5192 2012 IESC 51

LAOIS CO COUNCIL v SCULLY & ORS 2009 4 IR 488 2007/34/6940 2007 IEHC 212

HOWITT TRANSPORT LTD v TRANSPORT AND GENERAL WORKERS UNION 1972 IRLR 93

WASTE MANAGEMENT ACT 1996 S11

WASTE MANAGEMENT ACT 1996 S58(4)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2011 SI 434/2011

FLOOD v LAWLOR 2002 3 IR 67

W (B) (AN INFANT), IN RE 1969 1 AER 594 1969 2 WLR 99 1969 2 CH 50

RSC O.42 r7

RSC O.42 r4

NICHOLLS v NICHOLLS 1997 1 WLR 314

INTERPRETATION ACT 1937 S14

INTERPRETATION ACT 2005 S3

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1999

1

JUDGMENT of Mr. Justice Fennelly delivered the 14th day of March, 2014.

2

Judgment delivered the 14th day of March, 2014 by Mr. Justice William M. McKechnie.

3

Judgment delivered by Fennelly J & McKechnie J

4

1. The appellant, Mr Colm Hanrahan, is appealing against a High Court order committing him to prison for contempt of court in failing to obey a High Court order requiring him to remove large volumes of polluting waste from his parents' family farm in County Laois. This judgment concerns the appeal of the appellant, against a High Court judgment committing him to prison for contempt of court.

5

2. The order (hereinafter "the contempt order") was made on 17 th September 2013 by Hedigan J. It concerned the appellant's contempt of an order (hereinafter "the original order") made by Hedigan J on 24 th May 2012 pursuant to s. 58 of the Waste Management Act, 1996. That order required all three of the above named respondents to discontinue holding, recovery or disposal of waste on lands in Folio 1905 County Laois and to remedy the effects of depositing of waste which had already taken place. All this was to be done in accordance with the schedule to the order.

6

3. The lands involved consist of a farmyard and surrounding lands, registered in Folio 1905 of the Register, County Laois. They are at Graigueadrisly, Rathdowney, Co. Laois. The registered owners of the lands were, at the date of the making of the order, the first two respondents. The appellant is their son. The first-named respondent has sadly died since the commencement of the proceedings. The appellant had a lease of the lands for a term of seven years from 1 st October 2007, though he claims that a family dispute prevented him from occupying them from 2009 up to the date of his father's death in May 2013.

7

4. On 6 th April 2011 Laois County Council (hereinafter "the Council"), the applicant and the respondent to the appeal, received an anonymous complaint to the effect that illegal disposal of waste was taking place in an old quarry on the lands. Officers of the Council discovered, on inspection, when they entered the farmyard, that there was a strong, foul smell consistent with waste disposal on an adjacent site. There were tractor tracks leading from the yard into the surrounding lands. Waste materials had been deposited on an extensive area of approximately one acre at the top of a field which was approximately 150 yards from the farmyard. The waste comprised: (a) an area of domestic, processed waste; (b) an area of mixed waste including construction and demolition waste, waste wood plastic and metal; (c) windblown litter over the site and field generally.

8

5. The appellant, when contacted by telephone by the Council, said that he had leased the site from his father, but that he had separated from his wife and was no longer residing there. He said that he had entered into an agreement with another named person for use of the site as a quarry and for the removal of sand. An attempt was made to arrange a meeting with this other person but he failed to attend.

9

6. Further examination disclosed that the deposited waste ranged up to a depth of 2 metres. A foul smell emanated from a number of trial pits. The Council commissioned a report from OCM Environmental Consultants. They excavated 21 trial pits. They collected six waste and topsoil samples for analysis. Some of the principal findings were as follows.

10

7. The site is a former sand and gravel pit covering an area of approximately 0.95 hectares. It is in an agricultural area predominantly used for animal grazing. The waste was deposited over approximately 0.4 hectares. The sub-soil is comprised predominantly of sands and gravels, which have a high permeability. Overgrown areas appeared to have been cleared in advance of the deposit of waste. The waste was not covered, was warm to touch and had a very strong odour, consistent with that of municipal solid waste. Its average depth was 1.15 m. The waste comprised predominantly shredded plastic, generally uniform size and originally bottles, food containers, toothbrushes and minor amounts of organic waste. It was consistent with being Municipal Solid Waste that had undergone processing. Following scientific testing, the report reached the conclusion that the waste was not inactive and that it had the potential to generate a polluting leachate that is stronger than that produced in a non-hazardous waste landfill. If left in place it has the potential to migrate to the groundwater system and cause significant pollution and possibly impact on down gradient receptors. The site was assigned a Moderate risk rating. The primary risk was considered to be to the underlying aquifer, assumed, according to the report, to be a regionally...

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