The Waste Management Acts 1996 to 2003, Wicklow County Council v John O'Reilly and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date08 Sep 2006
Neutral Citation[2006] IEHC 273
Docket Number89SP/2005,[2005 No. 89

[2006] IEHC 273

THE HIGH COURT

89SP/2005
WICKLOW CO COUNCIL v O'REILLY & ORS
WICKLOW CO COUNCIL v O'REILLY & ORS
IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 TO 2003
IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT ACT 1996
(AS AMENDED BY SECTION 49 OF THE PROTECTION OF THE
ENVIRONMENT ACT 2003 ) AND
IN THE MATTER OF AN APPLICATION BY WICKLOW COUNTY COUNCIL

BETWEEN

WICKLOW COUNTY COUNCIL
PLAINTIFF

AND

JOHN O'REILLY BROWNFIELD RESTORATION IRELAND LIMITED, RAYMOND STOAKES, ANN STOAKES, SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE, LOUIS MORIARTY, EILEEN MORIARTY, SUBSTITUTED BY ORDER DEAN WASTE COMPANY LIMITED WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN, AND BY ORDER SAMUEL STEERS
DEFENDANTS

WASTE MANAGEMENT ACT 1996 S58

WICKLOW CO COUNCIL v FENTON (NO 2) 2002 4 IR 44

WASTE MANAGEMENT ACT 1996 S32

WASTE MANAGEMENT ACT 1996 PART V

WASTE MANAGEMENT ACT 1996 S39

WASTE MANAGEMENT ACT 1996 S58(1)(A)

LAOIS CO CO v SCULLY UNREP PEART 18.1.2006

EEC DIR 75/442/EEC

EEC DIR 91/156/EEC

CORK CO COUNCIL v O'REGAN UNREP CLARKE 17.6.2005 2005/12/2461

WASTE MANAGEMENT ACT 1996 S58(6)

DILLON v DUNNES STORES 1966 IR 397

O'FLYNN v MID WESTERN HEALTH BOARD 1991 2 IR 223

JEFFERSON LTD v BHETCHA 1979 2 AER 118

C (G) v APPEAL COMMISSIONERS 2005 2 IR 472

NATIONAL IRISH BANK, RE 1999 3 IR 145

COMPANIES ACT 1990

HEANEY v IRELAND 1996 1 IR 580

CONSTITUTION ART 40.6

CONSTITUTION ART 38

PLANNING AND ENVIRONMENTAL LAW:

Waste management;

PRACTICE AND PROCEDURE:

Stay

Unauthorised dumping of waste - Remediation - Concurrent criminal proceedings in being - Whether applications for civil orders independent of criminal prosecution - Whether court able to impose appropriate remedial order - Dillon v Dunnes Stores [1966] IR 397; O'Flynn v Mid-Western Health Board [1991] 2 IR 223; CG v Appeal Commissioners [2005] IEHC 121, [2005] 2IR 472; Laois Co Co v Scully [2006] IEHC 2, [2006] 2 IR 292; Wicklow Co Co v Fenton(No 2) [2002] 4 IR 44; Cork Co Co v O'Regan [2005] IEHC 208 (Unrep, Clarke J,17/6/2005) and Jefferson Limited v Bhetcha [1979] 1 WLR 898 considered - In Re National Irish Bank [1999] 3 IR 145 distinguished - Waste Management Act 1996 (No 10), s 58 - Council Directive 75/442/EEC - Council Directive 91/156/EEC- Stay refused (2005/89SP - Clarke J -8/9/2006) [2006] IEHC 273, [2006] 3 IR 623 Wicklow County Council v O'Reilly

: The plaintiff sought enforcement orders pursuant to s. 58 Waste Management Act 1996, as amended, arising from an allegation of illegal waste deposition on lands in Wicklow. The eighth, tenth and eleventh named defendants sought to stay proceedings against them, pending the completion of criminal proceedings relating to unlawful waste disposal against them. The defendants contended inter alia that the conduct of the civil proceedings, including the filing of a replying affidavit, would infringe their right to silence and would result in unfair pre trial prejudicial publicity.

Held by Clarke J. in refusing the stay sought, that the enforcement orders sought pursuant to s. 58 were an important part of the enforcement of environmental protection and thus that the limited interference with the right to silence by indirect means was a proportionate interference. The filing of a replying affidavit in civil proceedings would not give rise to adverse publicity that might imperil a fair trial. The prejudice alleged had not been made out.

Reporter: E.F.

1. Introduction
2

1.1 In these proceedings the plaintiff ("Wicklow") seeks orders under s. 58 of the Waste Management Act, 1996 (as amended) ("the Acts") against all of the defendants arising from an allegation that the defendants were involved in unlawful actions in relation to the deposition of waste on lands at Whitestown, Co. Wicklow. In this application the eight named defendant ("Dean Waste") and the tenth and eleventh named defendants ("the Directors") (collectively the "Dean Waste Defendants") seek to stay the proceedings as against them, pending the completion of criminal proceedings to which I will refer in due course.

3

1.2 In the context of this application it is important to note that the Directors were, it would appear, at all material times, directors of Dean Waste. The claim as against the directors is on the basis of a contention that they, as such directors, have a "fallback" liability on the basis of the "polluter pays" principle and having regard to the decision of O'Sullivan J. in Wicklow Co. Co. -v- Fenton (No. 2) [2002] 4 I.R. 44.

4

1.3 The tenth named defendant ("Mr. Dean") is the subject of criminal charges under the Acts arising out of the same set of circumstances that give rise to these proceedings. In those circumstances it is contended that it is inappropriate for these proceedings to be heard, or indeed to progress further, until such time as the criminal process has completed. In that context it is necessary to refer, firstly, to that criminal process.

2. The criminal process.
2

2.1 Criminal proceedings on indictment, entitled "the people at the suit of the Director of Public Prosecutions -v- Anthony Dean, Lawrence Creighton, Pat Fitzharris and John O'Reilly", have been commenced and are currently pending in the Dublin Circuit Criminal Court under Bill No. DU 006/112/05. Those criminal proceedings, insofar as they relate to Anthony Dean, are currently stayed by order of this Court pending the hearing of a judicial review application. The Anthony Dean referred to in the indictment is the tenth named defendant in these proceedings. So far as Mr. Dean is concerned the indictment alleges two counts as follows:-

2

"1. You Anthony Dean on a date or dates unknown between 1st day of January, 1998 and 1st day of May, 1998, at Whitestown, Baltinglass, Wicklow in the District Court Area of Baltinglass, did dispose of waste in a manner that was likely to cause environmental pollution contrary to s. 32 of the Waste Management Act, 1996.

2

You Anthony Dean on a date or dates unknown between 1st day of January, 1998 and 1st day of May, 1998, at Whitestown, Baltinglass, Wicklow, in the District Court area of Baltinglass, did dispose of waste without having been so authorised by waste licence issued under part V of the Waste Management Act, 1996, in relation to the disposal of such waste at the said lands contrary to s. 39 of the Waste Management Act, 1996."

3

2.2 It is clear, therefore, that the charges contain an allegation that Mr. Dean was guilty of the disposal of waste between January and May, 1998 at Whitestone in circumstances where such disposal was unlawful by virtue of the fact that it was conducted in a manner that was likely to cause environmental pollution and/or occurred without the necessary licence required under the provisions of part V of the Act. The factual context of the allegations contained in the charge is, therefore, confined to events in the earlier part of 1998 at Whitestown.

In the context of those criminal proceedings it is necessary to turn to the factual basis for these civil proceedings and in particular that aspect of these proceedings that relates to the Dean Waste Defendants.

3. These proceedings
2

3.1 In the substantive proceedings Wicklow seeks orders pursuant to s. 58 (1)(a) of the Act, as amended, against all of the defendants in connection with what is alleged to be the unlawful holding, recovery or disposal of waste on what would appear to be the same lands at Whitestown, Co. Wicklow. Section 58 enables the court, where it is satisfied that a person is holding, recovering or disposing of (or has done any of the above) waste in a manner that is causing or has caused environmental pollution (or in certain other connected circumstances) to make an order requiring the person to discontinue that unlawful activity and to mitigate or remedy any effects of same.

3

3.2 It is therefore clear that there is significant overlap between the circumstances giving rise to the alleged criminal conduct on the part of Mr. Dean and the circumstances giving rise to the contention made by Wicklow in these proceedings that all of the defendants and in particular Dean Waste and the directors are liable to the restraining and remedial orders specified in s. 58. It is in that context that Dean Waste and the directors seek to have these proceedings stayed pending the resolution of the criminal process.

4. The statutory purpose
2

4.1 Before going on to consider the authorities in relation to the appropriate course of action which should be taken by a court when confronted with broadly parallel criminal and civil proceedings, it is necessary to address the purpose of the Acts.

3

4.2 In Laois Co. Co. v. Scully (Unreported, High Court, Peart J., January 18th 2006,) Peart J. noted the following:-

"The Waste Management Acts were enacted in order to give effect to a number of EU instruments, but in particular Council Directive 75/442/EEC, as amended by Council Directive 91/156/EEC ("the Waste Directive"). The Waste Directive has as a stated objective the protection of the environment and human health, and the achievement of a high level of protection…that environmental damage should as a priority be rectified at source, and that the polluter should pay. The Oireachtas has given effect to the objectives of the Directive by the provisions of the Waste Management legislation in force and to which the Court has been referred."

4

4.3 To like effect in Wicklow Co. Co. v. Fenton (No. 2) [2002] 4 I.R. 44 O'Sullivan J. stated the following:

"The purpose of the Act of 1996 and of the underlying directives is, inter alia, to control and prevent environment pollution due to the production, handling recovery and disposal of waste including hazardous waste. When environmental pollution occurs or is likely to occur a person who causes it can be made the subject of an order. In...

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