Wicklow County Council v Fenton

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 14 June 2002
• Neutral Citation: [2002] IEHC 66
• Docket Number: [2002 No. 25 MCA]
• Court: High Court
• Date: 14 June 2002

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

IN THE MATTER OF SECTION 57 AND SECTION 58 OF THE WASTE

MANAGEMENT ACT 1996AND

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

COUNTY OF WICKLOW

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OFWICKLOW

APPLICANT

AND

CLIFFORD FENTON

SWALCLIFFE LTD. TRADING AS DUBLIN WASTE

LOUIS MORIARTY AND EILEEN MORIARTY

RESPONDENTS

AND

BLACKROCK CLINIC

FIRST THIRD PARTY

AND

MATER MISERICORIDIAE PUBLIC HOSPITAL

SECOND THIRD PARTY

[2002] IEHC 66

No. 25 MCA/2002

THE HIGH COURT

Synopsis:

PRACTICE AND PROCEDURE

Ex-parte notices

Motion - Injunction - Environmental pollution - waste management -Public interest - Whether third parties concurrent wrongdoers - Waste Management Act, 1996 sections 57 & 58 (2002/25MCA - O'Sullivan J - 14/06/2002)

Wicklow County Council v Fenton - [2002] 2 IR 583 - [2002] 2 ILRM 469

Facts: The respondents, it was alleged, unlawfully dumped environmental waste collected from the third parties. The applicant county council sought an injunction against the respondents to take steps to mitigate the pollution effects of the dumping. By order of the High Court the respondents got permission to issue and serve third party notices. The application before the court by the third parties was to set aside that order.

Held Section 58 of the Waste Management Act 1996 contemplates a speedy and relatively simple statutory relief. The summary relief sought could include injunctive relief. In following Quirke (A Minor) v O'Shea [1992] ILRM 286 the court considered the disruption to existing proceedings that could arise by the joinder of third parties. The court thereby ordered the setting aside of the third party proceedings and ruled it be made under Order 16 rule 8(3) of the 1986 Rules of the Superior Courts.

Citations:

WASTE MANAGEMENT ACT 1996 S58

WASTE MANAGEMENT ACT 1996 S57

RSC O.16 r1(1)(a)

BOARD OF GOVERNORS OF ST LAWRENCE'S HOSPITAL V STAUNTON 1990 2 IR 31

CIVIL LIABILITY ACT 1961 S2(1)

RSC O.16 r1(1)(b)

RSC O.16 r1(1)(c)

RSC 1905

WYLIE JUDICATURE ACTS 1906ED

RSC O.16 r1(a)

MEATH VEC V JOYCE 1997 3 IR 402

QUIRKE V O'SHEA 1992 ILRM 286

WASTE MANAGEMENT ACT 1996 S58(1)(a)

RSC O.16 r8(3)

1 O'Sullivan J.delivered 14th of June 2002.

The Parties

2 The applicant 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.

3 The first respondent is the owner of land in County Wicklow upon which the applicant alleges the second respondent, a waste collection company, or its agents, unlawfully dumped waste material including hazardous waste material some of which includes hazardous waste material collected from the first and second third parties. The third and fourth respondents are directors of the second.

The proceedings

4 The proceedings were commenced by originating Notice of Motion on the 14th of February 2002. In them the applicant claims reliefs as against the second third and fourth respondents (" the Dublin Wasterespondents") pursuant to Section 58 of the Act of 1996 requiring them to take such steps as may be directed by the Court to mitigate or remedy the pollution effects of the aforesaid alleged dumping and to put in place ongoing monitoring examination and inspection systems following such remedy. There is also a claim that the respondent's defray all the applicants costs and expenses incurred in the management of the relevant lands.

5 On the 28th of February 2002 the Dublin Waste respondents issued a Motion seeking to have the proceedings wholly set aside on the basis that they should have been commenced by way of special summons. On the 11th of March 2002 Kelly J. declined to set aside the proceedings in a considered ex tempore judgment of that date. I will return at a later point to refer more fully to this judgment.

6 Having failed to secure a knockout blow to the proceedings the management waste respondents next applied to McKechnie J. on the 29th of April 2002 for liberty to issue and serve third party notices upon the first and second third parties and this liberty was duly given on that date. No directions were given as to the manner or time of trial.

7 On this application I am dealing with an application by both third parties for an order setting aside the orders of McKechnie J. on the basis that third party procedure is not available to the respondents in an application under Sections 57 and 58 of the 1996 Act at all; that it should not in any event be made available in the present case; and, very much as a subsidiary alternative, if it is, the third parties seek orders directing that the trial of the issues affecting them should be postponed until after the main proceedings have been decided.

Preliminary point

8 In the course of the application before Kelly J. an argument was made to the effect that the applicant had deprived the respondents of the opportunity of seeking to join third parties in the instant proceedings by commencing them by motion. In dealing with this submission my learned colleague, according to Counsel's note, said

" lam satisfied that the respondents are not in any way prejudiced in this regard. They have the same entitlement to join other parties to proceedings commenced by way of Motion as they have in proceedings commenced by way of summons"

9 It is accepted by Counsel on this application that Kelly J. did not determine whether the Dublin Waste respondents actually do or do not have such an entitlement in the instant proceedings but rather that such an entitlement if it exists is not removed by reason of the factthat the proceedings were commenced by motion rather than by summons. The point before me has not, therefore, been decided. Insofar as my learned colleague decided as recited above I respectfully agree with that decision.

Submissions of third parties

10 These are accepted by their respective Counsel to be virtually the same and accordingly I will deal with them together.

11 1. The primary point made is that the relief being sought against the Dublin Waste respondents is an order that these respondents carry out certain remedial works and put in place monitoring procedures and that the Dublin Waste respondents cannot get an order from any court directing the third parties to carry out these procedures and put in place those systems. The orders will be orders in personam:accordingly, the third party procedure is in appropriate and should be set aside;

12 2. The procedure under Section 58 of the 1996 Act does not allow for the full range of pleadings and counter pleadings necessarily available in an issue between a defendant and a third party: on the contrary it is confined to an application to satisfy the Court that another person has caused environmental pollution in the way defined. Furthermore it is a self contained remedy and should be strictly construed as such by analogy with statutory planning injunctions and the Courts' interpretation of the statutory provisions authorising same. A third party, on the other hand, is entitled to full pleadings and counter pleadings which are not contemplated by Section 58.

13 3. The present application for liberty to issue third party notices was firmly based on the allegation that there was a breach by the third party of an express or implied term that the third parties would not mix hazardous waste with the non hazardous waste which the DublinWaste respondents agreed to collect from them. This being the case the third party notices were clearly founded on Order 16 Rule 1 (1)(a) of the Rules of the Superior Courts and thereby limited to a claim for contribution or indemnity. In ...