Kildare County Council v Patrick Merlehan T/A Ark Recycling
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 24 February 2022 |
| Neutral Citation | [2022] IEHC 107 |
| Docket Number | [Record No. 2019/262 MCA] |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 107
[Record No. 2019/262 MCA]
THE HIGH COURT
Remediation – Planning permission – Waste permit – Applicant seeking orders pursuant to ss. 57 and 58 of the Waste Management Act 1996 – Whether the respondent had been carrying on activities in relation to the acceptance and holding of waste at a site without holding any relevant planning permission, or a waste permit, or a waste licence
Facts: The applicant, Kildare County Council, was the local authority for the county of Kildare. The respondent, Mr Merlehan, resided at Newtown, Moone, Co. Kildare. The respondent was the registered owner of the lands, which were contained on folio KE799, County Kildare. The site comprised approximately 6.5 acres, in a rural location. The respondent traded under the business name of ‘Ark Recycling’. The applicant applied to the High Court seeking orders pursuant to ss. 57 and 58 of the Waste Management Act 1996 (as amended) in respect of the activities carried on by the respondent at the said site. In particular, it was alleged that without holding any relevant planning permission, or a waste permit, or a waste licence, the respondent had been carrying on activities in relation to the acceptance and holding of waste at the site and continued so to do. The applicant sought orders preventing the respondent from continuing to carry on those activities and an order providing for the remediation of the site and the costs thereof.
Held by Barr J that the respondent was the owner of the site and was the person responsible for all operations carried on at the site. The court was satisfied that the respondent did not have planning permission for the activities carried on at the site; nor was he the holder of a waste permit or a waste licence in relation to the transportation, holding or processing of waste at the site. The court was satisfied from the evidence contained in the affidavits sworn by Mr Dunne, Mr Flynn, Mr Costigan, Mr O’Riordan and Mr Shine and the documents and photographs exhibited thereto, that the respondent had accepted waste onto the site and was holding waste thereon. The court was satisfied from the reports furnished by Mr Shine and Mr O’Riordan, that the holding of the materials on the site, as shown in the photographs and in the form that they were shown in the photographs, constituted a risk to the environment and indeed, a risk to human health. The court was satisfied that this material was waste material. In those circumstances, the court was satisfied that it was appropriate and necessary for it to make the necessary orders pursuant to ss. 57 and 58 of the 1996 Act.
Barr J held that the remediation options as proposed by the applicant were necessary to ensure that the risk to the environment was eliminated, while at the same time being fair and proportionate to the respondent. Accordingly, the court directed that the remediation works as set out at options B and D at s. 4 of the report furnished by Mr Shine dated 15th June, 2020, should be carried out by the respondent in order to properly remediate the site. Barr J held that the court would receive submissions from the parties as to the wording of the final order in that regard and in relation to the time periods within which such works must be completed.
Application granted.
JUDGMENT of Mr. Justice Barr delivered electronically on the 24th day of February, 2022
The applicant is the local authority for the county of Kildare. The respondent resides at Newtown, Moone, Co. Kildare. The respondent is the registered owner of the lands, which are contained on folio KE799, County Kildare. The site comprises approximately 6.5 acres, in a rural location. The respondent trades under the business name of ‘Ark Recycling’.
In these proceedings the applicant seeks orders pursuant to ss. 57 and 58 of the Waste Management Act 1996 (as amended) in respect of the activities carried on by the respondent at the said site. In particular, it is alleged that without holding any relevant planning permission, or a waste permit, or a waste licence, the respondent has been carrying on activities in relation to the acceptance and holding of waste at the site and continues so to do.
The applicant seeks orders preventing the respondent from continuing to carry on these activities and an order providing for the remediation of the site and the costs thereof.
The respondent has filed a number of affidavits in response to the applicant's proceedings herein. He also addressed the court as a lay litigant at the hearing of this matter in January 2022.
As already noted, at all material times the respondent has been the registered owner of the lands at Newtown, Moone, Co. Kildare, as comprised in folio KE799 County Kildare (hereinafter referred to as ‘the site’). It is common case that the respondent resides on the site.
The lands comprise a total of 6.5 acres of land in an area primarily utilised for agricultural purposes. To the east of the site, is a stream which acts as a divide between the site and the adjacent property, Bolton Abbey, which is situate approximately 100m from the site. The southern boundary is characterised by the presence of the River Lerr which flows from east to southeast. A millrun from the Lerr enters the site from the southeast, runs within the southern portion of the site and exits to the southwest, flowing back into the main course of the Lerr.
The respondent held two previous waste permits: waste permit 64/2002 and waste permit 64/2002A were issued by the applicant in respect of the site on 27th June, 2002 and on 23rd July, 2008 respectively. Waste permit 64/2002A expired on 23rd July, 2009. Thereafter, no further waste permit applications or permits have been made or issued in respect of the site, save for an invalid application in 2009. This aspect will be dealt with later in the judgment.
Following an inspection of the lands in 2012, notices pursuant to s.55 of the Waste Management Act, 1996 (hereinafter ‘the 1996 Act’) were served on the applicant and on Ark Recycling requiring the cessation of the acceptance of waste onto the site. Unsuccessful attempts were made by the applicant to inspect the site in 2013. Warrants for inspection of the site were procured from the District Court in 2013 and again in 2014.
The applicant brought prosecutions in the District Court against the respondent pursuant to ss. 32, 39 and 55 of the 1996 Act. On 23rd July, 2013, the District Court judge, having heard an outline of the evidence, refused jurisdiction to hear the case, primarily, due to the significant volumes of waste on the lands. Subsequently, the DPP determined not to pursue the prosecution in the Circuit Court.
In 2014, the Minerex Environmental Limited, Hydrogeological, Environmental and Geophysical Services, were retained by the applicant to carry out an inspection of the site and to report on what was found thereon. Mr. Cecil Shine, who holds a Bachelor of Science Degree in Geology and a Master of Science Degree in Hydrogeology, inspected the site on three occasions: 14th August, 2014, 19th May, 2019 and 31st October, 2019; in respect of which visits he issued three reports. These reports indicated that over the relevant period there was approximately 20,200 tonnes of waste deposited and held on the site, made up of a mixture of hazardous waste, potentially hazardous waste and non-hazardous waste.
The specifics of what was found in the course of these inspections and the remedial works that are necessary to remediate the site, will be dealt with in greater detail later in the judgment.
On 25th November, 2019, an interim order was made by O'Connor J. in the High Court, restraining the respondent from accepting waste on the site without the consent or permission of the applicant, or further order of the court. The respondent appealed that order to the Court of Appeal; however, as he failed to comply with the direction of that court to file submissions within a given period, his appeal was struck out.
The respondent has filed three affidavits in response to the applicant's application herein. In addition, he made a substantial oral submission to the court at the hearing of the application in January 2022. In essence, the respondent accepted that he was holding waste on the site. He stated that he had approached a number of companies from whom he had accepted waste, asking them to remove it from the site. One company had complied with that request, but the others had not. The applicant denied that any of the material on the site posed a threat to human health or the environment. He stated that he was no longer accepting waste material onto the site. He stated that his preference would be to reach an amicable solution with the applicant, whereby the situation in relation to the material that remained on the site, could be resolved.
Given the concessions made by the respondent in the course of his oral submissions to the court at the hearing of these proceedings, it is not necessary to set out in extenso all of the evidence that was led on behalf of the applicant. However, in order to fully understand the basis for the orders which the court proposes to make in this case, it is necessary to give a brief overview of the evidence that was led on behalf of the applicant. The primary evidence led on behalf of the applicant was contained in the affidavit sworn by Mr. Liam Dunne on 10th July, 2019 and the affidavits sworn by Mr. Cecil Shine, Consultant Geologist and Hydrogeologist sworn on 10th July, 2019 and 17th June, 2020.
In an affidavit sworn on 10th July, 2019, Mr. Liam Dunne, Senior Executive Officer in the applicant, outlined the background to the history of the ownership and use of the...
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