Truloc Ltd v McMenamin

• Jurisdiction: Ireland
• Judge: O'Hanlon J.,,O'Hanlon J.
• Judgment Date: 01 January 1994
• Court: High Court
• Docket Number: No. 241 J.R./1992,No 38 J.R. 1992
• Date: 01 January 1994

1993 WJSC-HC 2742

THE HIGH COURT

No. 241 J.R./1992

TRULOC LTD v. MCMENAMIN

JUDICIAL REVIEW

BETWEEN

TRULOC LIMITED

APPLICANT

AND

DISTRICT JUDGE LIAM McMENAMIN

RESPONDENT

AND

DONEGAL COUNTY COUNCIL

NOTICE PARTY

Citations:

AIR POLLUTION ACT 1987 S24(2)

AIR POLLUTION ACT 1987 S14(4)

AIR POLLUTION ACT 1987 S14(6)

Words & Phrases: Nuisance

CEF

Subject Headings:

JUDICIAL REVIEW: prohibition

1 Judgment delivered by O'Hanlon J.,the 17th day of June, 1993.

2 This application for an Order of Prohibition is closely linked to otherJudicial Review proceedings between the same parties (Record No. 38JR/1992) in which I have already given judgment.

3 In the first proceedings the Applicant sought to quash a total of sevenconvictions for offences under sec. 24 (2) of the Air Pollution Act, 1987, in respect of emissions from the Applicant's factory premises atCarndonagh, Co. Donegal, on divers dates between the months of March,1990, and February, 1991, (inclusive).

4 That application has now been dealt with by me and has been dismissed.While those proceedings were pending Donegal County Council sought toexercise the powers given under sec. 14 of the Act for an"authorised person" (in this case a person who is appointedin writing by a local authority to be an authorised person for thepurposes of the Act) to enter the Applicant's said factory premises forthe purpose of carrying out an inspection and exercising other powersconferred by sec. 14, sub-sec. (4) of the Act.

5 The person claiming to be an authorised person for the said purpose wasDonal Casey, Executive Chemist, the validity of whose appointment assuch authorised person was challenged by the Applicant.

6 The Applicant refused permission for the said Donal Casey to enter thesaid factory premises and application was then made by the CountyCouncil to the District Court for a warrant authorising such entry asprovided by sec. 14, sub-sec. (6) of the Act of 1987.

7 The Applicant then applied for and was granted leave to apply for anOrder of Prohibition to restrain the Respondent from hearing anddetermining the said application, pending the determination of theearlier Judicial Review proceedings then being processed in the HighCourt, and that application for relief by way of prohibition was listedconcurrently with the earlier proceedings.

8 Having regard to the findings of fact and law made in the judgmentalready delivered in the proceedings seeking to quash the convictionsunder sec. 24 of the Act, I have come to the conclusion that the saidDonal Casey was at all material times a duly authorised person for thepurposes of sec. 14 of the Act of 1987 and that no grounds have beenshown for prohibiting the Respondent from hearing and determining theapplication for a warrant under sec. 14 (6) of the Act, nor forpreventing the said Donal Casey from entering the factory premises of the Applicant for the purpose of exercising the powers referred to in sec. 14 (4) of the Act.

9 I therefore refuse the present application for relief by way ofProhibition.

10 Doc 1822J ( OMcC )

1993 WJSC-HC 2745

THE HIGH COURT

No 38 J.R. 1992

TRULOC LTD v. MCMENAMIN

Judicial Review

BETWEEN

TRULOC LIMITED

APPLICANT

AND

DISTRICT JUDGE LIAM McMENAMIN

RESPONDENT

AND

THE COUNTY COUNCIL OF THE COUNTY OF DONEGAL

NOTICE PARTY

Citations:

AIR POLLUTION ACT 1987 S24(2)

AIR POLLUTION ACT 1987 S4

AIR POLLUTION ACT 1987 S5

AIR POLLUTION ACT 1987 S7

AIR POLLUTION ACT 1987 S11

AIR POLLUTION ACT 1987 S12

AIR POLLUTION ACT 1987 S14

AIR POLLUTION ACT 1987 S23

AIR POLLUTION ACT 1987 S24

AIR POLLUTION ACT 1987 PART III

AIR POLLUTION ACT 1987 PART IV

AIR POLLUTION ACT 1987 PART V

SOLAN V DPP 1989 ILRM 491

ABENGLEN, STATE V DUBLIN CORPORATION 1984 IR 381 1982 ILRM 590

MCEVITT, STATE V DELAP 1981 IR 125

NEVIN, STATE V TORMEY 1976 IR 1

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

ARCHBOLD CRIMINAL PROCEDURE 35ED PARA 3821-3

AG V KEYMER BRICK & TILE CO 67 JP 434

INTERPRETATION ACT 1889 S2

HALSBURY'S LAWS 4ED V11(1) PARA 35

R V ICR HAULAGE LTD 1944 KB 551

CHIEF CONSTABLE OF NORTH WALES POLICE V EVANS 1982 1 WLR 1155

KEEGAN, STATE V STARDUST TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

GARDA REPRESENTATIVE BODY V IRELAND UNREP SUPREME 26.5.93

Words & Phrases:

CEF

Subject Headings:

CRIMINAL LAW: offence

JUDICIAL REVIEW: remedy

1 Judgment delivered by O'Hanlon J. on the 17th day of June, 1993.

2 Truloc Limited carry on an adhesive manufacturing plant in premises located in Main Street, Carndonagh, Co. Donegal. Donegal County Council prosecuted them before District Judge McMenamin in 1991 on a number of charges under sec. 24(2) of the Air Pollution Act, 1987. It was alleged that on divers dates between March 1990 and February 1991 (inclusive) the company had been guilty of nuisance contrary to sec. 24(2) of the Act by reason of emissions from the said premises. The charges were listed for hearing on the 16th April, 1991; adjourned for hearing to the 25th June, 1991, and for further hearing to special sittings on the 2nd and 16th July, 1991, with a final hearing on the 29th July, 1991.

3 On that date - 29 July, 1991, - the first of eight charges was struck out, and the Applicant in the present proceedings (Truloc Limited) was convicted on the seven remaining charges. A fine of £300 was imposed in relation to each of the seven charges and the Applicant was further ordered to pay sums of £2,000 for costs and £2,000 for witnesses" expenses. During the hearing of the charges evidence was taken from ten witnesses called in support of the prosecutions, including an Executive Chemist and a Chemical Technician. No evidence was tendered on behalf of the Applicant.

4 No Notice of Appeal to the Circuit Court was served on behalf of the Applicant within the time prescribed by the Rules. -An application for extension of time to serve Notice of Appeal was made after the time had expired and the necessary extension of time was granted, but no Notice of Appeal has since been served.

5 An application was made to the High Court for leave to apply for judicial review for the purpose of seeking an Order quashing the said convictions. This application was made in or about the month of January, 1992, just within the period prescribed by the Rules of the Superior Courts, but was not supported by an adequate affidavit and no Order was made at that stage. The application was renewed on the 22nd June, 1992, a further affidavit having been sworn for the purpose on the 19th May, 1992, and an Order was then made giving leave to apply for judicial review. A Notice of Motion was then served returnable for the 27th July, 1992.

6 Many grounds are put forward for challenging the validity of the convictions.

7 The Applicant claims that -

8 (1) No evidence was given of the quantity or composition of the emission complained of, and that this is required by sec. 4 of the Air Pollution Act, 1987.

9 (2) No evidence was given that the emission complained of was injurious to public health or had a deleterious effect on flora or fauna or property or impaired or interfered with amenities or the environment, and that this also is required by sec. 4 of the Act.

10 (3) The District Judge was bound to, but did not, take into account all the circumstances referred to at sec. 5(2) (a) and (b) of the Act, as to what were the best means practicable to prevent or limit emissions.

11 (4) He did not require the Notice Party to prove that ministerial regulations exist regarding adhesive manufacturing industry, and the area, as required by sec. 10 of the Act.

12 (5) No regulations are in force specifying the best practicable means for preventing or limiting emissions, and until such limits are introduced the Applicant cannot be shown to be in breach of the law.

13 (6) The reference in sec. 11 of the Act to a "person" being capable of committing an offence, envisages that a body corporate may only be sued if an officer of the company is sued at the same time.

14 (7) Under sec. 12 of the Act penalties can only be imposed on a person and not on a body corporate, and an officer or officers of the company should have been named as a defendant or defendants.

15 (8) The Applicant should have been given a right of election for summary or jury trial, having regard to the provisions of sec. 12(1) (b) of the Act.

16 (9) Evidence was accepted from witnesses who were not duly appointed or authorised for the purposes of the Act - John McCullin

17 Donal Casey B. Sc.

18 (10) As no emission limit values had been set under sec. 51 of the Act, and no air quality management plan had been made under sec. 46 of the Act, and no air quality standards specified under sec. 50, the Applicant was using the best practicable means to prevent or limit emissions and could not know it was infringing the law because of absence of standards.

19 (11) A breach of natural justice was involved in prosecuting the Applicant when it could not know the nature and extent of the offence committed.

20 The following are my conclusions in relation to these several complaints:-

21 (1) No evidence of quantity or composition as required by sec. 4 of the Act.

22 Sec. 24 of the Act provides as follows:-

23 2 24.- (1) The occupier of any premises, other than a private dwelling, shall use the best practicable means to limit and, if possible, to prevent an emission from such premises.

24 (2) The occupier of any premises shall not cause or permit an emission from such premises in such a quantity, or in such a manner, as to be a nuisance.

25 (3) In any prosecution for a contravention of this section it shall be a good defence to establish that -

26 (a) the best practicable means have been used to prevent or limit the emission concerned, or

27 (b) the emission concerned was in accordance with a licence under this Act, or

28 (c) the emission concerned was in...