O'Reilly v County Council of the County of Wicklow

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 14 November 2014
• Neutral Citation: [2014] IEHC 537
• Court: High Court
• Date: 14 November 2014

[2014] IEHC 537

THE HIGH COURT

[No. No. 240JR/2014]

O'Reilly v Wicklow Co Council

JUDICIAL REVIEW

BETWEEN:

STAN O'REILLY

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

RESPONDENT

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 18(5)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) (AMENDMENT) REGULATIONS 2008 SI 86/2008

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 18

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 29

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 35

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 36

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(D)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(G)

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

LETT & CO LTD v WEXFORD BOROUGH COUNCIL & ORS 2012 2 IR 198 2012 2 ILRM 283

IRISH PHARMACEUTICAL UNION, STATE v EMPLOYMENT APPEALS TRIBUNAL 1987 ILRM 36 1986/3/972

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS 2011 4 IR 1 2011/12/2745 2011 IESC 13

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

FRENCHURCH PROPERTIES LTD v WEXFORD CO COUNCIL 1992 2 IR 268 1991 ILRM 769 1991/9/1984

TV3 TELEVISION CO LTD & ORS v INDEPENDENT RADIO & TELEVISION CMSN 1994 2 IR 439 1993/14/4436

EIRCELL LTD v LEITRIM CO COUNCIL 2000 1 IR 479 2000 2 ILRM 81 1999/11/2713

MCDONALD v BORD NA GCON (NO 2) 1965 IR 217 100 ILTR 89

(CROTHERS), STATE v KELLY 1978 ILRM 167

DUNDALK TOWN COUNCIL v LAWLOR 2005 2 ILRM 106 2005/17/3524 2005 IEHC 73

DUBLIN CITY COUNCIL v LIFFEY BEAT LTD 2005 1 IR 478 2005/17/3447 2005 IEHC 82

EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR & EIRCOM LTD 2014 1 ILRM 225 2013/18/5315 2013 IESC 34

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 32

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(1)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(2)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(A)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(B)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(C)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(E)

WASTE MANAGEMENT (FACILITY PERMIT AND REGISTRATION) REGULATIONS 2007 SI 821/2007 ART 30(3)(F)

Local authority – Waste management – Order of certiorari – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether respondent complied with the statutory scheme

Facts: The applicant, Mr O”Reilly, is the owner and operator of C&D Recycling. In January, 2014 the applicant received a formal notice from the respondent, Wicklow County Council, pursuant to Article 30 of the Waste Management (Facility, Permit and Registration) Amendment Regulations 2008 inviting him to apply for a review of his waste facility permit. By letter dated the 15th January, 2014, within the time required for a submission to be made by the permit holder, the applicant wrote to the respondent requesting that he be advised as to the material change in the nature focus and extent of the waste-related activities at the Stan O”Reilly T/A C&D Recycling facility. None of the information required to be submitted was forwarded by the applicant. In March, 2014 a notice pursuant to Article 18(5) of the Regulations was issued to the applicant revoking his permit as he failed to make a submission in relation to the review. The applicant sought an order of certiorari from the High Court quashing the decision of the respondent to revoke his permit. The applicant contended that his letter constituted a valid submission for the purposes of adequately responding to the initial notice issued by the respondent. He submitted that this submission, and the query raised therein, was submitted well within time and the respondent was not entitled to revoke the licence. The applicant contended that the respondent failed to comply with its own procedures and failed to respect his legitimate expectations, referring to Glencar Exploration v Mayo County Council [2002] 1 IR 84. Referring to McDonald v Bord na gCon [1965] IR 217, the applicant contended that the respondent failed to notify him that he had not made a submission and failed to notify what it considered was required for a submission to be made, resulting in a breach of fair procedures. The applicant submitted that the notice was unclear and that the respondent failed to give adequate reasons. It was submitted that there was an error of law on the face of the record insofar as the notice recites that the only reason for closing down the applicant”s business was an alleged failure to make a submission within 25 days when he clearly did make a submission as required. The respondent submitted that there is a statutory scheme in place and the local authority had fully complied with it. It is submitted that the applicant did not adequately engage in the process and did not submit the completed application form or any of the other specified information. It was submitted that the statutory scheme had been fully complied with and that notices issued were perfectly clear, that the reasons for the revocation were clear, and that there was no error on the face of the record.

Held by Kearns P that, having considered the notice, he was satisfied that the statutory scheme had been complied with by the respondent in that it was made clear to the applicant what he was required to do in order to comply with the notice in order to avoid having his waste facility permit revoked. Kearns P was satisfied that the notice was clear and that the applicant could have been in no doubt as to what the change in activities was which was causing the respondent concern; by failing to submit the application and additional information in accordance with the Regulations the applicant effectively deprived himself of a review which would have been conducted according to the statutory scheme. The Court therefore did not accept the applicant”s submission that he had a legitimate expectation that the respondent would perform its functions in the manner contended for. The Court also rejected the submissions that the notice was unclear, that there had been a breach of fair procedures or that the respondent had failed to provide adequate reasons for its decision.

Kearns P held that in light of the foregoing the applicant”s claim is dismissed

Application refused.

1 JUDGMENT of Kearns P. delivered on 14th day of November, 2014

2 The applicant is the owner and operator of a business known as C&D Recycling which was established in 2004 and which was operating at Merrymeeting, Rathnew, County Wicklow from May 2006 until the 7 ^th March, 2014. The applicant seeks an order of certiorari quashing the decision of Wicklow County Council ('the respondent') made on the 7 ^th March, 2014 to revoke his waste facility permit as contained within a notice issued under Article 18(5) of the Waste Management (Facility, Permits and Registration) Regulations 2007 and the Waste Management (Facility, Permit and Registration) Amendment Regulations 2008 ('the Regulations').

THE REGULATIONS

3 The Regulations are made pursuant to the Waste Management Acts 1996 to 2007. Article 18 of the Regulations relates to the notice of a decision of grant or refusal in relation to a waste facility permit. Article 18(5) states that:-

"a local authority shall, as soon as may be after making a decision under article 16(3) of these Regulations in relation to an application, give notice in writing of the decision to the applicant, to any person who made a submission in relation to the application in accordance with article 15, and to the Agency in accordance with the requirements of article 24(1), and, where appropriate, to the Minister for Agriculture and Food in accordance with article 24(2)."

4 Article 29 of the Regulations relates to the surrender of a waste facility permit:-

5 29. (1) A waste facility permit may, subject to the agreement of the local authority, be surrendered at any time by notice in writing to the local authority of an application for the surrender for a waste facility permit.

6 (2) A waste facility permit shall, subject to the agreement of the local authority, be surrendered by notice in writing by the permit holder to the local authority when the-

7 (a) waste related activity ceases,

8 (b) waste facility permit expires,

9 (c) waste facility permit is reviewed under article 36, or

10 (d) waste facility permit is refused under articles 18 or 36.

11 (3) A local authority shall not agree to the surrender of a waste facility permit unless it is satisfied that the condition of the facility is not causing or likely to cause environmental pollution and may carry out or cause to carry out such investigations as, are necessary, in the reasonable opinion of the local authority, to verify the condition of the facility.

12 (4) A local authority may, in agreeing to the surrender of a waste facility permit, attach conditions by way of a notice in writing to the permit holder, which shall be complied with by the person surrendering the permit.

13 (5) On surrender of the waste facility permit notwithstanding the provisions of this article, the local authority may decide that any bond or financial security...