Laois County Council v Scully

CourtHigh Court
JudgeMr Justice Michael Peart
Judgment Date23 January 2007
Neutral Citation[2007] IEHC 212
Docket Number[2005 No. 15 MCA]
Date23 January 2007


Laois County Council


Richard Scully, Michael Scully, Eileen Scully, Scully's Skips Limited, and Edward Boyhan

[2007] IEHC 212

Record Number: No. 15 MCA/2005



Environmental law - Refusal to comply with waste management order - Order of attachment and committal- Personal service - Waste Management Acts 1996-2004.

the application was for an order of attachment and committal of the first, second, third and fifth named respondents. Issues arose out of an order made by the court following delivery of a judgment which had not been complied with. The order was made following an application by the applicant local authority for orders pursuant to Section 57 of the Waste Management Acts, 1996-2003 requiring the respondents to cease an illegal land filling operation; to remove all waste on that land to an authorised waste disposal facility and to remediate the land.

Held by Mr Justice Peart that an order of committal is appropriate of the first, second and third respondents to prison for a period of six months. This was suspended for a period of twelve months, on condition that the respondents will complete within that period the programme of works contained in the Remedial Action Plan. The fifth named respondent had not breached the order.

Reporter: E.C.


RSC O.41 r8




RSC O.70 r68

RSC O.121 r8


RSC O.9 r2

RSC O.84 r1

RSC O.84 r1(3)


Mr Justice Michael Peart delivered on the 23rd day of January 2007 :


The present application for an order of attachment and committal of the first, second, third and fifth named respondents comes before the Court because an order made by this Court on the 7th April 2006 following the delivery of judgment on the 18th January 2006 has not been complied with. That order was made following an application by the applicant local authority for orders pursuant to Section 57 of the Waste Management Acts 1996-2003 requiring the respondents to cease an illegal land filling operation at lands at Knockacrin, Timahoe. Co. Laois, to remove all waste on that land to an authorised waste disposal facility, and to remediate the land.


It is convenient to refer to my judgment on that application when I stated as follows:

" The respondents accept that they are not the holders of a waste permit or waste licence such as would have entitled them to operate the land in question as they have done. They also accept that no such permit was applied for. The only matter in dispute really is the measures which must now be taken in order to remediate the lands. The applicant has set forth what in their view is necessary, but the respondents are of the view, and they have submitted some expert evidence which they say supports their view, that measures less than those required by the applicant, and therefore less costly and which they can afford, will be sufficient to remediate the lands. The applicant's proposals require the removal of all waste brought onto the lands to an authorised waste facility (such facility to be approved in advance by the Council), and for the land then to be filled and restored to the standard of normal agricultural land for the area. The respondents on the other hand say that these works will cost in the order of €1.5 million and that they cannot afford such a sum."


That paragraph sets out in a brief way the issue which arose then. My judgment noted the applicant's response to the contention that the respondents could not afford to deal with the matter as the applicant authority required. I stated in that regard that:

" ......... [the authority official] makes the point that having brought in approximately ten thousand tonnes of waste onto the site - a figure not in dispute to any great extent - the respondents have operated a very profitable business, and that in accordance with the principle that 'the polluter must pay' it is inappropriate for the respondents to submit a proposal, especially one which does not achieve the objectives of the Waste Management Directive, and the legislation, so that they can retain as much as possible of the profits from their unauthorised and unlawful activity."


I decided that an order should be made so that the matter be dealt with according to the method required by the applicant, rather than the less expensive and slower method proposed by the respondents. In deciding to make the order I stated:

" In any event I will list the matter again before me so that I can be addressed as to the precise terms in which the order of the court should be made, and I bear in mind the necessity where the Court is making an order of this kind, that those whose duty it is to comply with the order should know what precisely is required of them in order to achieve compliance, to include precise detail of what has to be done and the time-frame within which any particular matter must be attended to within the overall time-frame. I would strongly urge the respondents to co-operate with the applicant in agreeing such a timetable of events, so that the terms of any order made by the Court can reflect such a consensus, but in the event that no such consensus is forthcoming the Court will make such order as it deems appropriate having heard submissions from all concerned."


Following the delivery of judgment I adjourned the matter so that the parties could have discussions in the light of my judgment so that if at all possible whatever terms were to be included in the order to be made by the Court would have the input, and if possible, the agreement of the respondents. I indicated that if consensus was not possible then the Court would make such order as seemed necessary to deal with the matter in accordance with the applicant's requirements.


According to an affidavit from Gavin Cobbe, executive engineer with the Council, the respondents subsequently submitted a "draft plan of action" to the Council following a meeting with the Council which took place on the 22nd February 2006. He states that the Council required certain amendments to that draft plan, whereupon the respondents submitted a revised plan. Yet further amendments were required, and the Council sent the amended revised plan back to the respondents' environmental consultant on the 3rd April 2006. That final plan contained substantial and significant amendments to the first draft plan submitted by the respondents in February 2006. Mr Cobbe's said affidavit sets forth the reasons for those amendments and there is no need to set out those reasons out.


The matter came before this Court on the 7th April 2006 so that an order could be made pursuant to s. 57 of the Act. On that date, Counsel for the applicant, and Counsel for the respondents appeared. The Court was informed that a plan of works had been agreed by the parties which could form the basis of the order to be made, except that the respondents sought a larger timeframe for completion of the works than that set forth in the document. It was agreed by all that the document entitled "Proposed Terms for Inclusion in the Order" and of which the agreed revised plan of action formed part, would be received and made a rule of court.


An order of the Court was drawn up in the following terms:


1. The said Motion be allowed

2. The document headed 'Proposed Terms for Inclusion in Order" be received and filed and made a rule of Court and attached hereto as a Schedule

3. The works set forth in the document referred to in Paragraph 2 hereinbefore mentioned be carried out in accordance with the document headed 'Remedial Action Plan' document reference number GC52 save that the deadline for the completion of the said works be the 29th day of September 2006 and that this document be received and filed and made a rule of Court and attached hereto as a Schedule

4. The Respondents do pay to the Applicant the costs of this Motion when taxed and ascertained.


Liberty to Apply"


Before detailing subsequent events, I ought to make some references to the Action Plan itself. This Plan was first prepared by Wood Environmental Management Ltd, ("WEML"), the advisers to the respondents. The local authority's advisers O'Callaghan Moran & Associates ("OCM") reviewed the plan to which, as I have stated, certain amendments were required. But it was eventually agreed in the form now before the Court.


The Introduction to the Plan states:

"This document represents Laois County Council's (the Council) requirements for the remediation of lands at Knockacrin, Timahoe, County Laois the subject of proceedings issued in the High Court by the Council against [the respondents] and bearing Record Number 2005 No 15 MCA. It is based on O'Callaghan Moran & Associates' (OCM) review and amendment of the Remedial Action Plan (RAP)/Method Statement prepared by Wood Environmental Management Ltd (WEML). The review was requested by Laois County Council."


The paragraph which follows at 2 is entitled "Objective" and states:

"The objective of the WEML Method Statement shall be to identify the actions that must be taken to characterise and remove the waste material deposited on the lands at Knockacrin. The aim is to ensure that:-"


The Respondents and each of them shall jointly and severally remove all deposited waste from the lands at Knockacrin, Timahoe, County Laois, the subject of the proceedings between the Council and the Respondents (the site), shall dispose of or recover that waste at authorised facilities to be approved by the Council, and shall remediate the site....

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