Duffy v Clare County Council and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 08 February 2012
• Neutral Citation: [2013] IEHC 51
• Docket Number: Record Number: No. 371 JR/2012
• Court: High Court
• Date: 08 February 2012

[2013] IEHC 51

THE HIGH COURT

Record Number: No. 371 JR/2012

Duffy v Clare Co Council & Ors

Between:

Michael Duffy

Applicant

And

Clare County Council, Limerick County Council, the Environmental Protection Agency and The Minister for the Environment, Community and Local Government

Respondents

DATA PROTECTION (PROCESSING OF GENETIC DATA) REGS 2007 SI 687/2007

EEC DIR 2000/60

EUROPEAN COMMUNITIES ENVIRONMENTAL OBJECTIVES (SURFACE WATERS) REGS 2009 SI 272/2009 REG 17

FORESHORE ACT 1933 S13(1)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16

WASTE WATER DISCHARGE (AUTHORISATION) REGS 2007 SI 684/2007

CONSTITUTION ART 40.3.1

EUROPEAN COMMUNITIES ENVIRONMENTAL OBJECTIVES (GROUNDWATER) REGS 2010 SI 9/2010

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Leave - Locus standi - Waste water disposal - Discharge licence - Water quality - Public authorities - Applicant seeking orders of mandamus - Whether applicant out of time - Whether arguable grounds for judicial review - Leave refused (2012/371JR - Peart J - 8/2/2013) [2013] IEHC 51

Duffy v Clare County Council

The applicant was a Chartered Civil Engineer who lived in Kilfenora, Co. Clare. Following the building of his home in the area, he sank a well for a water supply but discovered that the water was polluted. He was therefore permitted to connect to the municipal water supply as a temporary solution. This arrangement has remained in place ever since. He also discovered that a housing development in nearby Liscannor was allowed to be connected to the municipal system despite the fact the first named respondent did not have the required discharge to sewer licence. The licence was eventually acquired but it was the applicant”s view that various conditions were broken. He further discovered that the first named respondent did not possess a foreshore licence required under s. 13 (1) of the Foreshore Act 1933 for most of the discharges to coastal or tidal waters which was applicable to some areas of the administrative region. He applied for leave to seek judicial review on the basis that the first named respondent had failed to make adequate attempts to investigate and deal with the water treatment problem. It was his view that the problem was that the disposal of waste water was unsatisfactory.

The first named respondent rejected the assertion that they were not making efforts to improve the system of water treatment. They further asserted that the application was out of time, that the applicant lacked locus standi to make the application, and that he was not entitled to the reliefs sought as a matter of law.

Held by Peart J that in relation to the relief sought to disconnect the housing development in Liscannor from the municipal waste water works, the application was clearly out of time considering that it was initially authorised in August 2009. Even if that was not the case, the court was satisfied that the first named respondent wished to upgrade the sewer system in the area but lacked the public funds to do so. It had therefore used its discretion to best solve the problem within its constraints. It was also not available to the court to direct how public funds were to be spent. The relief sought to prevent the waste water to be discharged from Liscannor to Liscannor Bay was also rejected on the basis that the application was out of time with the original licence having been issued in October 2011.

In relation to the Kilfenora area, it was accepted that the first named respondent did not have a licence for the area but it was held that there was ongoing correspondence with the second named respondent, the Environmental Protection Agency, to resolve the issue. It was also clear that the first named respondent had actively sought funding to solve the water pollution in this area but had been unsuccessful up until that point. The second named respondent also had the option to compel the first named respondent to cease the discharge but had not done so suggesting there was a very good reason for allowing the operation to continue unlicensed. The application could not be allowed as it was held to be out of time anyway. In relation to the foreshore licence, the first named respondent was able to demonstrate there was one in place as of March 1972.

Reliefs sought refused.

Judgment of

Mr Justice Michael Peart

1 On this application the applicant seeks leave to seek reliefs by way of judicial review. When he first moved his application I decided that it would be helpful to the Court to have the application made on notice to the proposed respondents, and in due course that occurred. Even though the application has been made therefore on notice, the threshold of arguable grounds nevertheless is the appropriate threshold for the granting of leave. I have been assisted greatly by the parties' submissions, both written and oral. I have considered carefully the applicant's submissions which he made in a very capable and clear fashion despite having no legal representation.

2 The applicant has resided with his family in Kilfenora, County Clare since 1993 when he built a house there. He resides about 7 miles from Liscannor, and about 15 miles from the small village of Quilty. He is a Chartered Civil Engineer by profession with a specialist knowledge in relation to wastewater treatment.

3 In relation to his own domestic water supply to his house he was required to sink a well for his water supply because of over capacity in his area. However, he found the well water to be polluted almost immediately, and following tests being conducted he was instructed not to use that water supply, and was given what at the time was to be a temporary connection to the municipal water supply. In fact it has remained in situ ever since. At that time the applicant suspected that the pollution was not simply emanating from farm pollution, and so it turned out. It has transpired that there are significant problems in the general area with regard to waste water treatment, and this is not really contradicted by Clare County Council. What is contradicted is that they are not doing anything about it and/or that they are in breach of any regulations. Quite apart from the fact that the Clare County Council is submitting that in fact there are no arguable grounds at all for the reliefs which the applicant seeks in these proceedings, it submits that in any event the applicant is either out of time for the present application, has no locus standi to seek the reliefs, or is simply not as a matter of law entitled to the reliefs which he is seeking.

4 To put it at its mildest, the applicant has concerns about the manner of wastewater disposal in County Clare but in particular at Kilfenora, Liscannor and Quilty. He has discovered for example that the Council had allowed a housing development at Liscannor with a private wastewater treatment system was permitted to be illegally connected to an already overloaded municipal works. He says that this required a discharge to sewer licence but that the Council does not have one. He also believes that there was a preferable solution available at the time which was not availed of.

5 In addition, he and his teenage daughter enjoy swimming and snorkelling in water adjacent to Liscannor Harbour. But since becoming aware that untreated sewage is discharging into that water he and his daughter no longer swim there in the interests of their health.

6 He was aware that under S.I. 684/2007 Clare County Council was required to make application to the Environment Protection Agency (" EPA") for discharge licences or certificates for all municipal wastewater works within its administrative area. He became aware in mid-January 2012 that a waste water discharge licence had been granted to Clare County Council by the EPA for the agglomeration of Liscannor. He was aware of issues relating to water discharge in that area and was of the view that they were such that no licence could be properly granted for Liscannor and some other areas.

7 Having discovered that a licence had been granted for Liscannor he set about investigating matters. In due course he made contact with staff at the EPA and brought his concerns to their attention and suggested that the EPA review the issue of the licence. He suggested that alternatively since in his view the Council was in breach of many conditions of the licence the EPA could revoke the licence. He apparently indicated that he wanted to give the EPA an opportunity of dealing with his concerns if they wished before he might take the matter elsewhere. He has stated also that the Council has admitted that it cannot comply with the conditions under which the licence was granted.

8 In relation to Kilfenora he states that the plant there cannot be licensed because it discharges directly to ground water. He has made submissions about this but to no avail apparently.

9 Limerick County Council is the co-ordinating body for the areas at play in these proceedings for the purposes of the Water Framework Directive 2000/60EC, and under s. 17 of S.I. 272/2009 - European Communities Environmental Objectives (Surface Waters) Regulations 2009 - it has, along with the Minister for the Environment and the EPA, power to prosecute an offence under these Regulations.

10 The applicant has discovered that Clare County Council does not have foreshore licences required under s. 13 (1) of the Foreshore Act1933 for most of the discharges to coastal or tidal waters in its administrative area. The applicant states that all discharges to coastal or tidal waters passing through the foreshore require such licences under the Foreshore Act, 1933, and that these are quite separate from discharge licences.

11 In relation to the village of Quilty, there is a new Waste Water Treatment Plant which has been commissioned about five years...