Naul and District Group v Fingal County Council
| Jurisdiction | Ireland |
| Judgment Date | 24 November 2003 |
| Date | 2003 |
| Court | Circuit Court |
THE CIRCUIT COURT
Procedure - Service - Property rights - Landfill sites - Waste Management Act, 1996 - Local Government (Planning and Development) Acts, 1963 to 1999 - Whether completing a study relating to the risk of bird strike is a prerequisite of entry onto the applicants' lands for the purposes of assessing the suitability of the land for use as a landfill site.
The respondent, as part of its ongoing responsibilities in relation to waste management engaged in a process of finding suitable sites for landfill. A number of sites were identified as potential suitable sites for landfill. However, these sites, with the exception of Loughbarn were all located within an 8 kilometre to 13 kilometre radius from Dublin Airport. Accordingly an expert in bird management, retained on behalf of the respondents prepared a preliminary report for the purposes of determining whether there was likely to be a problem for Dublin Airport as a result of the proposed sites. In this regard, the witness indicated that he considered bird strike potential to be one of the matters that should be taken into consideration in the selection of landfill sites. In accordance with its obligations under the Waste Management Act, 1966 and the Local Government (Planning and Development) Act, 1963, (the 1963 Act) the respondent served notices relating to the proposed entry onto the lands specified in these notices to assess the suitability or otherwise of the lands for use as a landfill site on either the owners or occupiers of these lands. The applicants in the present case applied to the District Court, pursuant to Section 83(4) of the 1963 Act for an order prohibiting the entry onto their land either wholly or subject to conditions. The applicants submitted that in circumstances where the respondent sought to interfere with or restrict the rights of the landowners or occupiers to enjoy their land and to exercise their right to privacy, they were required to carry out all non invasive studies prior to seeking to enter on the lands. In this regard the applicants contended that the study relating to the issue of bird movement was outstanding. Furthermore, the applicants argued that they were not properly served with these notices. Judge Mc Bride in the District Court upheld the applications and consequently prohibited entry to all the sites save for those comprised in the Loughbarn Group. The respondents appealed from this decision.
Held by the Circuit Court (Dunne J) in allowing the appeal and disallowing the cross appeal by the Loughbarn Group: 1. That service of the notices was properly effected. The fact that not every person over the age of 18 in occupation of particular premises was not served with a notice is not sufficient to invalidate the service effected.
Fingal County Council v Lynch (unreported High Court 27th June 1997) followed.
2. That prior to seeking to enter onto the lands the respondent should carry out all non-invasive studies for the purpose of assessing the suitability of the land for waste disposal.
3. That the study relating to the risk of bird strike is unconnected with the physical attributes of the land and therefore is not directed to the assessment of the suitability of the land. Accordingly it is not a prerequisite of entry onto the land and in any event it is not necessary to enter the lands for the purposes of carrying out a bird study.
That the siting of landfill sites in the Loughbarn region is not a material contravention of the development plan as under the relevant plan the site is designated as an amenity site and it is indicated in the plan that the use of land for landfill is a use that is open for consideration in areas designated as sensitive landscape areas, such as that comprised in the Loughbarn region.
Reporter: L O’S
JUDGEMENT
Delivered on the 24th day of November 2003.
The above matters come before the court by way of appeal from orders of the District Court made on the 27th June 2002 before Judge McBride.
The various parties who were applicants in the District Court proceedings were grouped together for the purpose of hearing the proceedings in the District Court. I take it that this procedure was agreed on by the parties with the approval of the court The proceedings before me took a similar form.
The proceedings arise as a result of the service of Notices on the applicants/respondents named in the proceedings and comprised in the various groups referred to in the title to the proceedings. The Notices were served pursuant to the Waste Management Act 1996 and the Local Government (Planning and Development) Acts 1963 to 1999. The Notices relate to proposed entry on the lands referred to in the respective Notices “ to fully assess the suitability or otherwise of the above mentioned lands for use as a waste disposal site …… for the purpose of establishing sub-surface ground conditions using test, surveys and excavations and other suitable exploratory methods.” [The Notices were directed to the owners and or occupiers of lands situated in one or other of the areas recommended to the applicant/respondent by its consulting engineers as a potential waste disposal site.]
Section 14 subsection 9 of the Waste Management Act 1996 provides as follows:
“an authorised person may enter on land for the purpose of assessing the suitability of the land for waste disposal; such an entry shall be subject to the relevant provisions of Section 83 (other than subsection 6) of the Act of 1963 as if it were an entry made under that section.”
Section 83 subsection 2 of the Act of 1963 provides that “a member of the board or an authorised person entering on land under this Section may do thereon all things reasonably necessary for the purpose for which the entry is made and in particular may survey, make plans, take levels, make excavations and examine the depth and nature of the sub soil.
Subsection 3: before a member of the board or an authorised person enters under this section on any land, the appropriate authority shall either obtain consent (in the case of occupied lands) of the occupier or (in the case of unoccupied land) the owner, or shall give to the owner or occupier (as the case maybe) not less than 14 days notice in writing of the intention to make the entry.
Subsection 4: a person to whom a notice of intention to enter on land has been given under this section by the appropriate authority may, not later than 14 days after the giving of such notice, apply, on notice to such authority, to the justice of the District Court having Jurisdiction in the District Court District in which the land or part of the land is situate for an order prohibiting the entry, and, upon the hearing of the application, the justice may if he so thinks proper, either wholly prohibit the entry or specify conditions to be observed by the person making the entry.”
As can be seen from Section 83 subsection 4 those affected by the service of such notice may apply to the Judge of the District Court for an order prohibiting the entry either wholly or subject to conditions.
In the present cases Judge McBride prohibited entry to all the sites save for those comprised in the Loughbarn Group where entry was permitted subject to conditions. It is from those orders that the respondent now appeals. All appeals were heard together and there were cross appeals by the Loughbarn Group in respect of the order made in their case.
It may be useful to outline the background to these appeals. As part of its ongoing responsibilities in relation to waste management, the appellant/respondent (hereinafter referred to as “Fingal”), was engaging in a process of finding suitable sites for landfill. A number of sites were identified, Palmerstown, Brownstown / Loughmain, Annsbrook, Tooman and Loughbarn. The sites with the exception of Loughbarn are all partly or entirely within 8km to 13km radius from Dublin Airport. I shall hereinafter refer to the area within the 8km to 13km radius of the Dublin Airport as the “restricted zone”.[The principal argument on behalf of the applicants/respondents could be summarised by saying that in circumstances where Fingal seeks to interfere with or restrict the rights of the land owners or occupiers to enjoy their land and to exercise their right to privacy, they must first carry out all non-invasive studies or enquiries before seeking to enter on the lands in pursuance of the power under Section 14 subsection 9 of the Waste Management Act 1996.] It is argued on behalf of the applicants/respondents
that all such non-invasive studies have not been carried out and that therefore Fingal cannot exercise its powers of entry. The study alleged to be outstanding relates to the issue of bird movement in the context of the risk of bird strike to aircraft using Dublin Airport.
At the outset of the hearing, Mr. Flanagan on behalf of Fingal urged that the issue of bird strike was irrelevant to the exercise of rights under Section 14 subsection 9 by Fingal. I indicated that I would hear the evidence and then consider whatever submissions were made in that respect. It should be noted that it was conceded by Fingal that in considering appropriate sites it would have regard to the recommendation of the International Civil Aviation Organisation in relation to areas considered to be unsuitable for waste disposal. The area comprised in the restricted zone is considered to be generally unsuitable according to the ICAO recommendations and further it is their recommendation that before siting such municipal waste disposals sites in the restricted zone that ornithology/aeronautical studies would...
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