Kelly Dunne v Guessford Ltd T/A Oxigen Environmental

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date02 June 2022
Neutral Citation[2022] IEHC 264
CourtHigh Court
Docket Number2018 No. 308 MCA

In the Matter of Section 160 of the Planning and Development Act 2000 (As Amended)

Between
Elaine Kelly Dunne
Noel Moore
Ann Flynn
David Kelly
Annette McGrath
Louise O'Sullivan
Claire Moore
Matt Kelly
Michael Kelly
Applicants
and
Guessford Limited (Trading as Oxigen Environmental)
Respondent

[2022] IEHC 264

2018 No. 308 MCA

THE HIGH COURT

Committal – Contempt– Order 28, rule 11 of the Rules of the Superior Courts – Applicants seeking to have two directors of the respondent company committed to prison for disobedience of an earlier court order – Whether the respondent company was operating its waste facility in breach of the terms of an order made by the court pursuant to the planning legislation

Facts: The applicants, Ms Dunne, Mr Moore, Ms Flynn, Mr Kelly, Ms McGrath, Ms O’Sullivan, Ms Moore and Messrs Kelly, applied to the High Court to have two directors of the respondent company, Guessford Ltd, committed to prison for disobedience of an earlier court order. It was alleged that the respondent company was operating its waste facility in breach of the terms of an order made by the court pursuant to the planning legislation. It was sought to have the directors committed to prison until such time as the respondent company complied with the court order.

Held by Simons J that he would reject the principal complaint made by the applicants that the respondent company was guilty of an ongoing breach of the court order of 15 November 2021 insofar as it accepted waste in the form of wooden pallets at the waste facility located at Barnan, Daingean, County Offaly. Simons J held that it could not be said that, on an objective interpretation, the court order would be clearly understood as prohibiting the receipt of wooden pallets sourced from a construction site. Simons J held that the respondent company had been in breach of the spirit of, if not necessarily the letter of, the court order by continuing to shred timber at the waste facility until mid-February 2022. However, Simons J held that it would not be appropriate to exercise the court’s punitive or disciplinary contempt jurisdiction in this instance. However, Simons J held that the fact that compliance had been achieved only belatedly may be relevant to the question of legal costs. Simons J held that the other alleged breaches of the court order had not been made out on the facts. Finally, Simons J held that even if it had been demonstrated that the respondent company were in ongoing breach of the court order, it would not be appropriate to imprison the directors. Simons J held that the requirements of s. 53 of the Companies Act 2014 had not been fulfilled.

Simons J held that the contempt motion would be dismissed. Simons J held that the court order would be amended pursuant to Order 28, rule 11 of the Rules of the Superior Courts to include a prohibition on the shredding of timber at the waste facility. Simons J held that this amendment was necessary to correct a clerical mistake in the order as initially drawn up.

Application refused.

Appearances

Oisin Collins, SC and Margaret Heavey for the applicants instructed by O'Connell Clarke Solicitors

Michael O'Higgins, SC and Michael O'Donnell for the respondents instructed by John C. Kieran & Son Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 2 June 2022

INTRODUCTION
1

This judgment is delivered in respect of an application to have two directors of the respondent company committed to prison for disobedience of an earlier court order. It is alleged that the respondent company is operating its waste facility in breach of the terms of an order made by this court pursuant to the planning legislation. It is sought to have the directors committed to prison until such time as the respondent company complies with the court order.

PRINCIPAL JUDGMENT
2

The contempt motion has been brought in the context of enforcement proceedings taken pursuant to section 160 of the Planning and Development Act 2000 (“ PDA 2000”). The proceedings concern the planning status of a waste facility located at Barnan, Daingean, County Offaly (“ the waste facility”). The proceedings have been brought by a number of individuals who live in the vicinity of the waste facility (“ the applicants”). The respondent to the enforcement proceedings is the operator of the waste facility, Guessford Ltd (“ the respondent company”).

3

This court delivered a reserved judgment on the substantive merits of the enforcement proceedings on 21 September 2021, Kelly Dunne v. Guessford Ltd [2021] IEHC 583 (“ the principal judgment”). In brief, the principal judgment held that the authorised use of the waste facility under the planning legislation is confined to the recycling of “ construction and demolition waste”. It was further held that this term would be understood, by the hypothetical “ ordinary and reasonably informed” reader of the planning permission, as referring to waste material generated by activities involving the construction and demolition of buildings. Such waste material would be understood as including, for example, stone and soil from excavations, brick, rubble and concrete.

4

The principal judgment held that the planning permission does not authorise the treatment, by shredding, of timber at the waste facility. It should be emphasised that this finding had been reached in circumstances where the respondent company itself had categorised the source of this timber as municipal waste, not construction and demolition waste. The court had not been required to address the specific question of whether timber arising from construction and demolition—such as, for example, roof timbers, latts or rafters—could be accepted at the waste facility.

5

There is no discussion in the principal judgment of the definition of “ packaging waste” under European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (“ the European Directive on packaging waste”). This is because the Directive had not featured as an issue in the enforcement proceedings.

6

Having regard to one of the arguments advanced on the committal application, it is also appropriate to note what had been said in the principal judgment in respect of the relevance of the European Waste Catalogue. The European Waste Catalogue is a hierarchical list of waste descriptions established by Commission Decision 2000/532/EC. A consolidated version of the European Waste Catalogue, which reflects the various amendments made to it over the years, has been published by the (Irish) Environmental Protection Agency and a copy of this document has been exhibited in these proceedings.

7

This court held in the principal judgment that it was legitimate to have regard to the European Waste Catalogue codes in assessing whether there had been a breach of the planning permission. See, in particular, paragraph 131 of the principal judgment as follows:

“[…] It is legitimate, therefore, to have regard to the definitions under the Waste Management Act 1996 (as amended) and to the European Waste Catalogue codes in assessing whether there has been a breach of the planning permission. As it happens, the concept of ‘construction and demolition waste’ is self-explanatory, and does not require further elaboration under the Act. It is defined under section 5 as meaning waste generated by construction and demolition activities. The European Waste Catalogue simply separates out the constituent parts of construction and demolition waste into individual codes.”

8

To assist the reader in understanding the significance of this finding, it should be explained that the European Waste Catalogue is used for the classification of all wastes and is designed to form a consistent waste classification system across the EU. These classifications are used for waste management reporting obligations. The respondent company is required, under the terms of the waste facility permit last granted by the local authority, to maintain a register which records, inter alia, the date, time of arrival and quantities of waste in each consignment delivered to the waste facility and to categorise the waste type by reference to the waste's European Waste Catalogue code.

9

(As an aside, it should be observed that the status of the waste permit facility is a matter of controversy between the parties, with the applicants contending that there is no extant permit and that the respondent company is operating the waste facility in breach of the waste management legislation. This controversy cannot be resolved in the context of enforcement proceedings under the PDA 2000. If the applicants wish to pursue their complaint, it will have to be done by way of enforcement proceedings under the Waste Management Act 1996).

10

The European Waste Catalogue consists of twenty chapters. In most instances, these chapters refer to the source generating the waste. Chapter 17 applies to Construction and demolition wastes (including excavated soil from contaminated sites). Each chapter is broken down into subcategories, each with its own code. For example, construction and demolition waste has individual codes for, inter alia, concrete, bricks, tile, ceramics, wood, glass, plastic, metals, soil and stone, and dredging spoil.

11

For the purpose of the enforcement proceedings, the applicants had relied on the respondent company's own records, as obtained from the local authority, to establish the nature and source of the waste consignments then being accepted at the waste facility. The respondent company had agreed to the admission of these records as evidence.

12

Finally, for completeness, it should be recorded that the respondent company has brought an appeal against the principal judgment to the Court of Appeal. The appeal is listed to be heard on 20 July 2022.

COURT ORDER OF 15 NOVEMBER 2021
13

The principal judgment had concluded by indicating the...

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1 cases
  • Kelly Dunne v Guessford Ltd T/A Oxigen Environmental (Costs)
    • Ireland
    • High Court
    • 19 July 2022
    ...contempt motion was unsuccessful for the reasons set out in a reserved judgment delivered on 2 June 2022, Kelly Dunne v. Guessford Ltd [2022] IEHC 264(“ the contempt 8 The history of the contempt motion is set out in detail in the contempt judgment. For present purposes, the following point......

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