Meath County Council v Hendy
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 14 March 2023 |
| Neutral Citation | [2023] IECA 55 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2020/206 |
[2023] IECA 55
Whelan J.
Donnelly J.
Faherty J.
Appeal Number: 2020/206
THE COURT OF APPEAL
Contempt – Proportionality – Waste disposal – Appellants appealing against orders of the High Court – Whether the cumulative impact of the orders was disproportionately penal
Facts: The appellants, Ms Hendy, Mr Hendy, Green Energy Recycling Ltd, Mr Farrelly, Mark Farrelly Plant Hire Ltd, Mr McDonnell, Mr Conroy and Mr Fox, appealed to the Court of Appeal against the orders of the High Court (Humphreys J) made on the 31st July, 2020 and perfected on the 17th August, 2020 and the judgment of that court delivered on the 14th September, 2020. Said orders were made on foot of a notice of motion issued by the respondent, Meath County Council (the Council), on the 24th April, 2020 seeking firstly a declaration that the first and second appellants were in contempt of court for failure to comply with the 2016/2017 orders of Noonan J. The said non-compliances were particularised by reference to the terms of the orders particularly those made by Noonan J on the 19th October, 2016 which had, inter alia, required the said appellants within a timeframe of twelve weeks to discontinue the holding, recovery and disposal of waste at lands situated in County Meath and comprised in the Folio together with certain consequential and ancillary orders. In addition, the motion brought by the Council sought liberty to issue an order for attachment and/or committal to prison of each of the appellants for failure to comply with the said orders.
Held by Whelan J that the conduct of the appellants was to be deprecated and they had been in ongoing breach of orders of the court; they had not appealed the declaration of the High Court granted on the 27th July, 2020 that they were, and each of them was, in contempt of court. However, she concluded that there was force in the appellants’ arguments that the cumulative impact of the orders was impermissibly expropriative and disproportionately penal. In her view, meticulous attention to procedure was not followed in circumstances where third parties, including the estate of the deceased tenant in common of the property, were made the subject of orders without correct procedures being complied with; this resulted, by the operation of the orders, in the conversion without notice of the vested property rights of an innocent third party or parties contrary to their constitutional rights and contrary to Art. 1 of the First Protocol of the European Convention on Human Rights. She indicated a variety of infirmities, inconsistencies and deficits in the orders as made. She found that the cumulative impact of the orders included that the Council had no obligation to carry out any works; the appellants were precluded from carrying out any works and were ordered jointly and severally to pay a fine the quantum of which demonstrably, in light of the uncontested evidence with regard to their means, was wholly impossible for either to ever comply with. Insofar as the trial judge envisaged that a repayment of monies could be effected from the proceeds of a fine that appeared to Whelan J to be contrary to any authority. She held that, in the circumstances, it had not proved possible to frame an alternative order, and thus it was in the interests of justice to discharge and set aside all of the orders of the court and remit the matter to the High Court where a different judge could re-exercise the jurisdiction to include any relevant remedy pursuant to the Waste Management Act 1996 as amended for the purposes of procuring an expeditious remediation of the contaminated parts of the Folio known as Landfill A and Landfill B. She held that the order of the trial judge was to be discharged and set aside.
Whelan J held that, having regard to the evidence before the court with regard to general non-compliance by the appellants and each of them to the extent of their respective limited ability with the terms of the 2016 order, the appellants were not entitled to their costs.
Appeal allowed.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 14th day of March 2023
. At the outset it is to be observed that “the polluter pays” principle in the context of environmental protection law envisages that once a causal link is established between the activities in question and the damage caused to the environment the remediation of land adversely affected is to be internalised and borne by the polluter in the first instance. Causation rather than fault is the basis for liability. In ECJ decision Commune de Mesquer v Totale France [2008] ECR 1-04501 at para. 72 the Court observed:
“The application of the ‘polluter pays’ principle within the meaning of the second sentence of the first subparagraph of Article 174(2) EC and Article 15 of Directive 75/442 would be frustrated if such persons involved in causing waste escape their financial obligations…”
As the academic E. Lees correctly notes in “The Polluter Pays Principle and the Remediation of Land” International Journal of Law of Built Environment, Vol. 8, Issue 1 (2016), p. 9:
“The Union institutions therefore interpret the polluter pays principle as relying on a causal link, and as requiring a complete internalisation of costs arising from such an action.”
. The appellants are Eileen Hendy, a widow now in her eighties and her son Fred Hendy, the first and second named appellants in the above-entitled proceedings (the Hendys). It is necessary to consider in some detail the litigation background and pre-litigation history to arrive at some understanding of how the current state of affairs giving rise to the issues in this appeal came about. On the 11 th September, 2015 proceedings were instituted by Meath County Council (“the Council”) pursuant to the Waste Management Act 1996. It was grounded on affidavits sworn by Anne Marie Casey on the 1 st September, 2015 and Declan Grimes and Larry Whelan sworn on the 9 th September, 2015. It had its first return date before the High Court on the 2 nd November, 2015. On the 24 th November, 2015 affidavits were sworn by Fred Hendy and Eileen Hendy. Subsequently on behalf of the appellants Cecil Shine of Minerex Environmental Ltd (“Minerex”) filed an affidavit on the 14 th December, 2015. Further affidavits were sworn by Anne Marie Casey and Cecil Shine respectively on the 11 th February, 2016 and 5 th April, 2016. Meanwhile on the 5 th September, 2016 the second named appellant Fred Hendy was charged with 10 separate offences pursuant to the Waste Management Acts returnable before the Circuit Court. He ultimately spent time in custody between 26 th November, 2019 and 2 nd March, 2020.
. Throughout 2016 it would appear that the appellants had retained a firm of solicitors. However, on the 4 th October, 2016 the appellants purported to serve a notice of discharge on the said firm. On the 10 th October, 2016 the said solicitors applied to the High Court to come off record and were granted liberty to do so. The Council's motion pursuant to ss. 57 and 58 of the Waste Management Act, 1996 as amended came before the High Court on the 18 th October, 2016. There was no appearance by or on behalf of the appellants.
. By his order Noonan J. directed that the first and second named appellants discontinue the unauthorised holding, recovery and disposal of waste at the lands comprised in Folio ████ County Meath. The said order and its import are considered as appropriate in greater detail hereafter
. Thus, the appellants' ill-judged litigation strategy of ignoring the hearing resulted in the High Court proceeding to make determinations and orders without any input by or on their behalf. On the 19 th October, 2016 the court made the orders sought against the appellants in terms proposed by the Council. The proceedings were struck out as against the fourth, fifth, sixth, seventh and eighth named respondents. An order for costs previously made against the third named respondent was vacated and the proceedings against the said company were struck out with no further order.
. At some stage prior to 2012 it appears that a very substantial volume, perhaps as much as 70,000 tons of waste, was dumped in two landfill sites on the farm holding in Folio ████ County Meath. It appears that the Council carried out an inspection on or about the 23 rd November, 2012 and identified two substantial landfills. Thereafter on the 10 th December, 2012 the Council served notice pursuant to s. 55 of the Waste Management Act, 1996 on the appellants. It further appointed Declan Grimes to conduct a Tier 1 assessment which was completed in or about October, 2013. The Tier 1 report assessed the sites as being Class A high risk in accordance with the Environmental Protection Agency ( EPA) Code of Practice (COP). Thereafter at the behest of the Council a Tier 2 assessment was carried out in 2014 by URS (now AECOM) and a report in respect of same was furnished on the 12 th January, 2015. Both reports identified the presence of two unregulated landfills within the property. Preliminary assessments indicated that each contained a mixture of construction and demolition waste together with municipal waste. Landfill A, the smaller of the two sites, was estimated to comprise approximately 2,846 cubic metres. The Council identified the presence of asbestos fibres and asbestos containing materials (ACMs) in the waste body. In respect of Landfill B, the larger of the two sites, it was estimated to comprise approximately 32,328 cubic metres.
. The appellants' own experts on...
To continue reading
Request your trial