Hogan v County Manager of County Waterford

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 30 April 2003
• Neutral Citation: 2003 WJSC-HC 6083
• Date: 30 April 2003
• Court: High Court

2003 WJSC-HC 6083

THE HIGH COURT

NO. 736/J.R./2000

HOGAN v. WATERFORD COUNTY MANAGER

JUDICIAL REVIEW

BETWEEN

ANN HOGAN

APPLICANT

AND

THE COUNTY MANAGER OF THE COUNTY OF WATERFORD

RESPONDENT

Citations:

WASTE MANAGEMENT ACT 1996 S22(12)

RSC O.84

WASTE MANAGEMENT (PLANNING) REGS 1997 SI 137/1997 REG 5(5)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S3

WASTE MANAGEMENT ACT 1996 S38(1)

WASTE MANAGEMENT ACT 1996 S22(10)

WASTE MANAGEMENT ACT 1996 S22(7)

WASTE MANAGEMENT ACT 1996 PART II

WASTE MANAGEMENT ACT 1996 S23(2)

LOCAL GOVT ACT 1991 S41

WASTE MANAGEMENT ACT 1996 S38

WASTE MANAGEMENT ACT 1996 S43(5)

RSC O.84 r21(1)

O'FLYNN V MID WESTERN HEALTH BOARD 1991 2 IR 233

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

DPP V KELLY 1997 1 IR 405

FINNERTY V WESTERN HEALTH UNREP CARROLL 5.10.1998 1998/19/7047

K (G) V MIN JUSTICE 2002 1 ILRM 401

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

EASTERN HEALTH BOARD V FARRELL 2000 1 ILRM 446

COUNTY MANAGEMENT ACT 1940 S17(1)

COUNTY MANAGEMENT ACT 1940 S17(2)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

STREET LAW RELATING TO LOCAL GOVERNMENT (1955) 1258

KEANE, THE LAW OF LOCAL GOVT IN THE REPUBLIC OF IRELAND 35

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S2(7)

EAST WICKLOW CONSERVATION COMMUNITY LTD V WICKLOW CO COUNCIL & TREACY 1996 3 IR 175

WASTE MANAGEMENT ACT 1996 PART III

EC (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

WASTE MANAGEMENT (PLANNING) REGS 1997 SI 137/1997 REG 5(5)(B)

EC DIR 91/156 ART 5.2

NETHERLANDS V CHEMISCHE AFVALSTOFFEN DUSSELDORF B V ECR 1998 I-04075 C-203/96 PAR 37

EC DIR 91/156 ART 5

TREATY ON EUROPEAN UNION 1992 ART 130r (2)

TREATY ON EUROPEAN UNION 1992 ART 174(2)

COMMISSION OF THE EUROPEAN COMMUNITIES V KINGDOM OF BELGIUM 1996 ECR I-2043

WASTE MANAGEMENT ACT 1996 S22(7)(E)

WASTE MANAGEMENT ACT 1996 S23

FERRIS V DUBLIN CO COUNCIL UNREP SUPREME 7.11.1990 1998/19/7023

SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

O'KEEFFE V AN BORD PLEANALA & ORS 1993 1 IR 39

O'REILLY WHELAN & O'DWYER V O'SULLIVAN & DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP SUPREME 26.2.1999

DEVLIN V MIN ARTS & ORS 1999 1 IR 47

CHILD V WICKLOW CO COUNCIL 1995 2 IR 447 1995/1/332

KENNY HOMES & CO LTD V GALWAY CITY & CO MANAGER & GALWAY CORPORATION 1995 2 ILRM 586

MURPHY V WICKLOW CO COUNCIL & ORS UNREP SUPREME 2.12.1999 1999/19/5877

O'CONNOR & ORS V MIN MARINE & ORS UNREP HIGH IRISH TIMES 15.11.1999

R V BRECKLAND DISTRICT CO EX PARTE BUDGEONS STORES LTD 1999 JPL 85

R V LEICESTER CITY CO & ORS 1999 JPL 691

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

DOYLE, STATE V CARR 1970 IR 87

SLOUGH ESTATE LTD V SLOUGH BOROUGH CO & ORS 1971 AC 958

NILAMDEEN MOHAMED ISHAK & ORS V THOWFEEK & ANOR 1968 1 WLR 1718

MARLEASING SA V LA COMERCIAL INTERNAVIONAL DE ALIMENTACION SA 1990 ECR I-04135

O'CONNOR V DUBLIN CORPORATION UNREP O'NEILL 3.10.2000 2000/14/5399

KEOGH V GALWAY CO COUNCIL 1995 3 IR 457 1995 1 ILRM 141

SHANNON REGIONAL FISHERIES BOARD V AN BORD PLEANALA 1994 3 IR 449

M V ALGEMENE TRANSPORT V NETHERLANDS INLAND REVENUE ADMINISTRATION C-26/62

R V SECRETARY OF STATE FOR TRANSPORT EX PARTE FACTORAME LTD & ORS 1990 ECR I-02433

R V SECRETARY OF STATE FOR EMPLOYMENT EX PARTE EQUAL OPPORTUNITIES COMMISSION & ANOR 1995 1 AC 1

EMMOTT V MIN SOCIAL WELFARE 1991 7 ECR 4269

GLENCAR EXPLORATION PLC & ANOR V MAYO CO COUNCIL 1993 2 IR 237

ABRAHAMSON V LAW SOCIETY OF IRELAND 1996 1 IR 403

ROUGHAN V CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

TENNYSON & ORS V DUBLIN CORPORATION 1991 2 IR 527

Synopsis:

JUDICIAL REVIEW

Waste management

Practice and procedure - Time limits - Delay - Extension of time - Whether applicant commenced proceedings promptly or otherwise in accordance with time limits - Rules of the Superior Courts, 1986 SI 1986/15 Order 84 rule 21(1) (2000/736JR - Herbert J - 30/04/2003)

Hogan v County Manager of Co. Waterford

The applicant applied for judicial review seeking an order of certiorari quashing decisions of the respondent to continue the site selection process for a waster disposal landfill site; an order of mandamus directing the respondent to observe the provisions of the Waterford County Waste Management Plan; an order of prohibition restraining the respondent from continuing with the waste disposal landfill site selection process and injunctions. The respondent contended that the applicant had failed to commence the proceedings promptly or otherwise in accordance with the time limits stipulated in Order 84 of the Rules of the Superior Courts.

Held by Herbert J. in declining to exercise the court's discretion to extend the time and accordingly refusing the applicant's application that no 'good reason' had been established by the applicant as to why the court should exercise its discretion to extend the time to enable the applicant to seek orders by way of judicial review. The application for leave to seek judicial review was not made promptly even though the application for an order of certiorari was made eight days prior to the expiration of the period of six months provided by Order 84, rule 21(1)

1 Judgment of Mr. Justice Herbert delivered the 30th day of April, 2003.

2 By Order of the High Court, made on the 4 ^th December, 2000 the Applicant was given leave to seek, by way of Judicial Review, the following reliefs:-

3 An Order of Certiorari quashing decisions of the Respondent made on the 12 ^th June, 2000 and 24 ^th November, 2000 to continue the site selection process for a waste disposal landfill site at Garrynagree in West County Waterford. An Order of Mandamus directing the Respondent to observe, as required by Section 22 (12) of the Waste Management Act, 1966, the provisions of the Waterford County Council Waste Management Plan, 1997 – 2002 and to carry out his statutory duty to select a waste disposal landfill site in accordance with Sections 5.5.1 and 5.2 of the said Plan which provide that -

"Waste collection and disposal services in Waterford County will, over the life of the Plan include for, inter alia, the provision of a new Waste Disposal (Landfill) Facility located West of Waterford City." "In accordance with the previous paragraph, it is proposed to develop a modern engineered landfill to the highest standards West of Waterford City to serve both the County and City ... the facility will be jointly developed by both Waterford County Council and Waterford Corporation thus giving effect to the Proximity Principle."

4 An Order of Prohibition restraining the Respondent from continuing with the waste disposal landfill site selection process with respect to Garrynagree in West County Waterford, prohibiting all further site investigations at Garrynagree and prohibiting the completion of an Environmental Impact Assessment in respect of a waste disposal landfill site at Garrynagree. A Declaration that the decision of the Respondent made on the 12 ^th June, 2000 to continue with the site selection process for a waste disposal landfill facility in West County Waterford is ultra vires, void and of no force or effect. An Order of Prohibition and additionally or alternatively an injunction restraining the Respondent from acting contrary to the Resolution of the Elected Members of Waterford County Council passed on the 12 ^th June, 2000 that, "Waterford County Council cease its search for a landfill site in West Waterford."

5 An Order of Prohibition and additionally or alternatively an injunction restraining the Respondent from acting or continuing to act in breach of the provisions of Waterford County Council Waste Management Plan, 1997 – 2002.

6 An Injunction restraining the Respondent from continuing the site selection process at Garrynagree in West County Waterford pending the outcome of these proceedings.

7 If necessary, an order pursuant to Order 84 of the Rules of the Superior Courts extending the time within which the above reliefs might be claimed. Liberty to file further affidavits.

8 Further or other reliefs as the Court deems meet. Costs.

9 A Statement of Opposition was delivered by the Respondent on the 6 ^th February, 2001. Arising from this Statement of Opposition issues are raised between the Parties with respect to the following matters:-

10 The Applicant has known since June, 2000 that the Respondent intended to continue with the site selection process with respect to waste disposal landfill sites in West County Waterford including Garrynagree. Consequently, the Applicant has failed to commence these proceedings promptly or otherwise in accordance with the time limits stipulated in Order 84 of the Rules of the Superior Courts. Since the 12 ^thJune, 2000 the Applicant has acquiesced in the furtherance of this waste disposal landfill site selection process in West County Waterford and through the Lickey Concern Group was involved, prior to the 28 ^th July, 2000 in making a detailed Submission in respect of the Environment Impact Assessment of a waste disposal landfill site at Garrynagree.

11 The Respondent made no decision on the 24 ^th November, 2000 to continue with a site selection process for a waste disposal landfill site in West County Waterford as alleged. The Respondent decided and declared his intention on the 12 ^th June, 2000 to continue with the site selection process in respect of sites in West County Waterford despite the resolution of the Elected Members of Waterford County Council.

12 The "mandamus letter" dated the 7 ^thNovember, 2000 from the solicitors for the Applicant to the Respondent has no legal force or effect. The Elected Members of Waterford County Council have known since at least the 9 ^th December, 1999 of the intention of the Respondent to extend the site selection...