Wicklow County Council v Fenton (No 2)

• Jurisdiction: Ireland
• Judge: O'SULLIVAN J.,O'Sullivan J.
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] IEHC 102
• Court: High Court
• Docket Number: [2002 No. 25 M.C.A.]
• Date: 31 July 2002

[2002] IEHC 102

THE HIGH COURT

25 MCA/2002

WICKLOW CO COUNCIL v. FENTON & SWACLIFFE LTD T/A DUBLIN WASTE & ORS

IN THE MATTER OF SECTION 57 AND SECTION 58 OF THE WASTE MANAGEMENT ACT, 1996 AND

IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

APPLICANT

AND

CLIFFORD FENTON, SWALCLIFFE LIMITED (TRADING AS DUBLIN WASTE) LOUIS MORIARTY AND EILEEN MORIARTY

RESPONDENTS

Citations:

WASTE MANAGEMENT ACT 1996 S58

WASTE MANAGEMENT ACT 1996 S57

WASTE MANAGEMENT ACT 1996 S57(1)

WASTE MANAGEMENT ACT 1996 S58(1)(A)

WASTE MANAGEMENT ACT 1996 S58(4)(A)

WASTE MANAGEMENT ACT 1996 S58(7)

WASTE MANAGEMENT ACT 1996 S5

TREATY OF ROME ART 174

TREATY OF ROME ART 174(2)

EEC DIR 75/442

EEC DIR 91/156 ART 1

EEC DIR 91/156 ART 8

EEC DIR 91/156 ART 15

EEC DIR 91/156 ANNEX IIA

EEC REC 75/436/EURATAM

KRAMER EC ENVIRONMENTAL LAW 4ED 2000 PARA 1.32

ALPHACELL LTD V WOODWARD 1972 AC 824

EMPRESS CAR COMPANY (ARBERTILLERY) LTD V NATIONAL RIVERS AUTHORITY 1999 2 AC 22

NRA V YORKSHIRE SERVICES 1995 1 AC 444

REEVES V CARTHY 1984 IR 348

OVERSEAS TANKSHIP (UK) LTD V MORTS DOCK & ENGRG CO LTD 1961 AC 388

OVERSEAS TANKSHIP (UK) LTD V THE MILLAR STEAMSHIP COM. PTY. 1967 1 AC 617

BURKE V JOHN PAUL & CO LTD 1967 IR 277

SALMOND THE LAW OF TORTS 16ED 564

CONDON V CIE UNREP BARRINGTON 16.11.84 1985/1/52

O'CONNOR & SPOLLEN GROUP LTD V FRANK HARRINGTON LTD UNREP BARR 28.5.1987 1987/8/2101

WASTE MANAGEMENT ACT 1996 S9(1)

ENVIRONMENTAL PROTECTION ACT 1990 (UK)

DUN LAOGHAIRE CORPORATION V PARKHILL DEVELOPMENTS LTD 1989 IR 447

MEATH COUNTY COUNCIL V THORNTON UNREP O'HANLON 14.1.1994 1994/5/1392

FISHERIES (CONSOLIDATION) ACT 1959 S171(1)

MAGUIRE V SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580

SHANNON REGIONAL FISHERIES BOARD V CAVAN CO COUNCIL UNREP MURPHY 21.12.1994 1995/5/1621

DUBLIN CO COUNCIL V ELTON HOMES LTD 1984 ILRM 297

DUBLIN CO COUNCIL V O'RIORDAN 1985 IR 159

ELLIS V NOLAN UNREP MCWILLIAM 6.5.83 1984/4/1300

EEC REC 75/436/EURATAM S2

WASTE MANAGEMENT ACT 1996 S57(1)(C)

Synopsis:

PRACTICE AND PROCEDURE

Evidence

Environment - Waste disposal - Alleged waste licence breaches - Request that evidence be excluded - Waste Management Act, 1996 section 57 & 58 (2002/25MCA - O'Sullivan J - 31/7/02)

Wicklow County Council v Clifford - [2003] 1 ILRM 279

Facts: The applicant was the statutory authority charged with waste management and control functions for Wicklow. The first respondent was the owner of lands in Wicklow upon which the applicant alleged that the second respondent, a waste collection company, unlawfully dumped waste material. The third and fourth respondents were the directors of the company. The applicant sought orders against all the respondents to take steps to remedy any effects of environmental pollution caused by the illegal dumping of 8,000 tonnes of material, including hospital waste material. The dumping caused considerable environmental damage. The third and fourth respondents argued that as directors they should not be made personally liable.

Held by O' Sullivan J. in making a final order directing the comprehensive remediation of the landfill by way of a staged process and making an order providing for an application to the Court by the second respondent and/ or the third and fourth named respondents for a contribution towards the costs of complying with that order from the first respondent that in interpreting the Waste Management Act, 1996 the court must apply the teleological principle with the result that the Act is interpreted in a way that achieves its objectives. Having regard to these objectives a particular person causes pollution if it is established that the activity brings about or contributes to bringing about such pollution notwithstanding the absence of intention or negligence in the traditional sense. In order to ensure the full application of the "polluter pays" principle the court must be in a position to make orders against company directors. The veil of incorporation should be lifted to ensure the full application of the principle.

1 O'Sullivan J. delivered the 31st of July, 2002.

The Parties

2 The applicant (Wicklow County Council) is the statutory authority charged with waste management and control functions under the Waste Management Act, 1996(the 1996 Act) for the County of Wicklow. The first respondent (Mr. Fenton) is the owner of land (Coolamadra) in County Wicklow upon which the applicant alleges the second respondent, a Waste Collection Company (Dublin Waste) or its agents unlawfully dumped waste material including hazardous waste material some of which includes hazardous waste material collected from the Mater Misericordiae Public Hospital (The Mater Hospital) and the Blackrock Clinic. The third and fourth respondents (Mr. Moriarty) and (Mrs. Moriarty respectively) are directors of Dublin Waste.

3 By order of McKechnie J. on the 29th April, 2002 Dublin Waste was granted leave to join the Mater Hospital and the Blackrock Clinic as notice parties. By order of the 14th June, 2002 after a full hearing I made an order setting aside those third party proceedings.

4 In the course of the hearing before me counsel applied to be joined as a notice party on behalf of Mr. Fenton's wife and I acceded to that request. She has filed an affidavit to which I will refer hereafter.

Relief claimed

5 Wicklow County Council seeks relief primarily under Section 58 of the 1996 Act against all the respondents but also under Section 57, and an order was obtained by consent on the 11th March, 2002 when Kelly J. ordered Mr. Fenton to cease using Coolamadra as a dump or site for receiving waste materials. This application can therefore effectively be treated as an application for relief under s. 58 but also, if necessary, for an order under s. 57. It is appropriate, therefore, that I set out the relevant provisions of ss. 57 and 58 as follows: " 57.-(1) Where, on application by any person to the High Court, that Court is satisfied that waste is being held, recovered or disposed of in a manner that causes or is likely to cause environmental pollution, it may by order-

6 (a) Require the person holding, recovering or disposing of such waste to carry out specified measures to prevent or limit, or prevent a recurrence of, such pollution, within a specified period,

7 (b) Require the person holding, recovering or disposing of such waste to do, refrain from or cease doing any specified act, or to refrain from or cease making any specified omission,

8 (c) Make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate...

9 (d) Without prejudice to the powers of the High Court to enforce an order under this section, a person who fails to comply with an order under this section shall be guilty of an offence.

"58.-(1)(a) Where, on application by any person to the appropriate court, that court is satisfied that another person is holding, recovering or disposing of, or has held, recovered or disposed of, waste, in a manner that is causing, or has caused, environmental pollution, that court may make an order requiring that other person to do one or more of the following, that is to say:"

(i) to discontinue the said holding, recovery or disposal of waste within a specified period, or

(ii) to mitigate or remedy any effects of the said holding, recovery or disposal of waste in a specified manner and within a specified period...

(4) (a)Where a person does not comply with an order under subsection (1), a local authority, as respects its functional area, or the Agency, may take any steps specified in the order to mitigate or remedy any effects of the activity concerned

(b) The amount of any expenditure incurred by a local authority or the Agency in relation to steps taken by it under paragraph (a) shall be a simple contract debt owed by the person in respect of whom the order under subsection (1) was made to the authority or the Agency, as the case may be, and may be recovered by it from the person as a simple contract debt in any court of competent jurisdiction...

(7) Without prejudice to any powers of the court concerned to enforce an order under subsection (1), a person who fails to comply with an order under that subsection shall be guilty of an offence."

10 Whilst both sections deal with situations where pollution is actually occurring, s. 57 deals also with cases where it has not happened yet but is likely to occur, whereas s. 58 deals with cases where it has happened in the past.

11 It will be seen that both ss. 57 and 58 are concerned with environmental pollution. The definition of this phrase is of crucial importance to the interpretation of these sections. I set it out (as contained in s. 5 of the 1996 Act) as follows:

12 ""Environmental pollution" means, in relation to waste, the holding, transport, recovery or disposal of waste in a manner which would, to a significant extent, endanger human life or harm the environment, and in particular-

13 (a) create a risk to waters, the atmosphere, land, soil, plants or animals,

14 (b) create a nuisance though noise, odours or litter, or

15 (c) adversely affect the countryside or places of special interest;"

16 It will be seen that this definition includes the concept of risk where such is created in relation to waters, the atmosphere, land, soil, plants or animals. I emphasise this because much of the evidence adduced on behalf of the respondents was directed to showing no existing or actual harmful effects occurring in the stream running beside the dump, for example. Such evidence is beside the point, however, once it is accepted (as it was, at least to a significant extent, by the expert witnesses called on behalf of the respondents) that the dumped material caused a risk, for...