Wicklow County Council v O'Reilly ; Brownfield Restoration Ireland Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 16 October 2019
• Neutral Citation: [2019] IECA 257
• Date: 16 October 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Record Nos. 2017/432 2017/433 High Court Record Nos. 2005/89SP 2008/56SP Record No. 2017/433 Record No. 2017/432

[2019] IECA 257

THE COURT OF APPEAL

CIVIL

Birmingham P.

Whelan J.

Costello J.

Record Nos. 2017/432

2017/433

High Court Record Nos. 2005/89SP

2008/56SP

Record No. 2017/433

Record No. 2017/432

IN THE MATTER OF THE WASTE MANAGEMENT ACT 1996-2003

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 (AS AMENDED BY SECTION 49 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 STOKES, ANNE STOKES, SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE, LOUIS MORIARTY, EILEEN MORIARTY SUBSTITUTED BY ORDER DEAN WASTE CO. LTD, WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN

AND BY ORDER

SAMUEL J. STEARS

DEFENDANTS

BROWNFIELD RESTORATION IRELAND LIMITED

PLAINTIFFS

- AND -

WICKLOW COUNTY COUNCIL

DEFENDANT

Remediation – Time – Costs – Appellant seeking to appeal part of the order of the High Court relating to the time provided for the defendant to fully remediate the site – Whether there was any error in the time afforded to the defendant to comply with the High Court order

Facts: The High Court, on the 19th July, 2017, held that the defendant, Wicklow County Council, was responsible for illegal dumping of inert, non-inert and hazardous waste at lands situated in Whitestown at Stratford-on-Slaney near Baltinglass, County Wicklow and required the council to remove all waste and contaminated, or potentially contaminated, soil from the site. The plaintiff, Brownfield Restoration Ireland Ltd, appealed part of the order of the High Court relating to the time provided for the council to fully remediate the site and the order for costs insofar as all of the costs of the two related hearings were not awarded to Brownfield, who had succeeded in the two related actions.

Held by the Court of Appeal (Costello J) that Brownfield had not established that there was any error in the time afforded to the council to comply with the order that it was to remediate the site at Whitestown in full. Costello J refused the appeal in relation to the form of the order.

Costello J held that the trial judge erred in principle in relation to some of the orders as to costs. Costello J allowed the appeal in respect of those matters and ordered the council to pay to Brownfield the costs of the agreement of the issue paper, the costs of the application for a modular trial, the costs of the application to re-enter the proceedings against Swalcliffe Ltd and the costs of Modules III and IV. Costello J held that there should be no order as to the costs of the application by the council to file a supplemental affidavit dealing with its decision to remediate the site under s. 56 of the Waste Management Act 1996. Costello J affirmed the balance of the order.

Appeal refused. Appeal allowed as to cost order.

JUDGMENT of Ms. Justice Costello delivered on the 16th day of October, 2019.

1 On the 19th July, 2017, the High Court held that Wicklow County Council (“the council”) was responsible for illegal dumping of inert, non-inert and hazardous waste at lands situated in Whitestown at Stratford-on-Slaney near Baltinglass, County Wicklow and required the council to remove all waste and contaminated, or potentially contaminated, soil from the site.

2 Brownfield Restoration Ireland Limited (“Brownfield”) appealed part of the order of the High Court relating to the time provided for the council to fully remediate the site and the order for costs insofar as all of the costs of the two related hearings were not awarded to Brownfield, who had succeeded in the two related actions.

Background

3 The proceedings are two related actions concerning the remediation of what by any standards is an appalling illegal dump. The illegal landfill is known as Whitestown dump and was situate near Stratford-on-Slaney near Baltinglass, County Wicklow. The site is particularly sensitive and totally unsuitable for use as a landfill. Waste was dumped in a disused sand-and-gravel pit, with the result that it was in contact with the ground water and discharged leachate beside a SAC of wetlands and an important salmonid river feeding a public water supply. As it was an illegal dump, none of the precautions usually associated with landfill, such as impermeable liners and monitoring of leachate discharge, was ever in situ. The amount of waste illegally dumped on the site was truly vast and shocking. Between the years 1979 to 2001, over 250,000 tonnes of mixed domestic, industrial and hospital waste was deposited on the site. The waste includes non-inert and hazardous waste, as was set out in graphic and horrific detail in the third judgment of Humphreys J. delivered on 7th July, 2017 ( [2017] IEHC 456).

4 The history of the dumping on the site, complaints in relation to the existence of the site and attempts to close the site and remediate it, were described by the trial judge as a saga; they could equally be described as Kafkaesque. For the purposes of this judgment, it is not necessary to set out all the depressing and shocking events in exhaustive detail. I adopt the finding of facts and the recital of the history of the relevant facts as set out in the judgments of the High Court in this matter. For the purposes of this judgment, it is necessary simply to record the following facts.

5 The council is the waste authority charged with the statutory responsibility for the supervision and the enforcement of the relevant provisions of the Waste Management Act 1996, in relation to the holding, recovery and disposal of waste within its functional area. It also has responsibilities under European Law as set out in detail by the trial judge, deriving both from the European Charter of Fundamental Rights of the European Union, the European Treaties and various waste and environmental directives. Complaints were made to the council about the illegal landfill from as early as 1989. The council carried out a number of inspections of the site. It appears that the council was aware of this shocking breach of the Waste Management Act – or at least ought to have been – from, at a conservative estimate, the mid-1990s. Despite this, it was not until 2001 that the council claimed publicly that it had “discovered” the dump and closed it. The council then engaged a consultant, Mr. Donal O'Laoire, to advise on the remediation of the site. In May 2002, the council entered the site, took possession of it and used a mechanical excavator to cap the main waste dumps with material. It was common case that the lands included inert, non-inert and hazardous waste at this time.

6 In October 2002, the European Commission issued a letter pursuant to Article 226 of the European Communities Treaty regarding the implementation of Council Directive 75/442/EEC of 15th July, 1975 on waste (as amended). The letter complained that the council was notified in 1998 that dumping was taking place but took no enforcement action. The commission was concerned that it was indicated that the intention was to seal the site, rather than remediate it.

7 On the 26th April, 2005 the European Court of Justice in Case C-494/01 Commission v. Ireland [2005] ECR-I 3331 ruled that Ireland had failed to comply with Directive 75/442/EEC as amended by Directive 91/156/EEC. Paragraph 135 of the judgment referred to close to one hundred illegal sites, some of which were of considerable size and contained hazardous waste originating, in particular, from hospitals; specific reference was made to the Whitestown dump. Following on from this judgment, the Department of the Environment was in communication with the European Commission in relation to the rectification of this default by Ireland in relation to dumps, including the Whitestown dump.

8 The lands comprised in the Whitestown dump were originally owned by Mr. John O'Reilly, the first named defendant in the first set of proceedings (“the 2005 proceedings”). Mr. O'Reilly operated the dump for more than two decades. After the landfill had been closed by the council and the council had entered the site in May 2002, Mr. O'Reilly sold the lands.

9 At all material times, Brownfield represented itself as being the purchaser and beneficial owner of the lands. It subsequently emerged that, in fact, the lands were purchased by a subsidiary of Brownfield, Rockbury Ventures Limited, a company incorporated in the Virgin Islands in 2003. In 2005, Brownfield applied to the Environmental Protection Agency for a licence to operate the site as a lawful landfill. As part of the process, the council made submissions on the proposal to the EPA. The council submitted that Brownfield should be required to remediate the entire site by removing all of the waste and contaminated material from the site i.e. none should be left in situ. The EPA granted Brownfield a licence to remediate the site which required it to remove all of the waste and contaminated soil within a period of three years.

10 On the 4th March, 2005, four years after the council claimed to have “discovered” the illegal dump, and nearly three years after it had taken possession of it, the council instituted proceedings pursuant to s. 58 of the Waste Management Act 1996 against those parties it believed were legally responsible for the situation, and who could be ordered to remediate the site. Brownfield was sued as the current holder of the waste on the basis that it had purchased the site from Mr. O'Reilly. The council alleged that the defendants were holding, recovering and disposing of waste on the lands in a manner that is causing and/or has caused environmental pollution and/or was in contravention of s. 34 and/or s. 39 of the Waste Management Act 1996 and, as a result, remediation steps were required to be taken to mitigate and/or remedy the effects of the alleged holding, recovering or disposal of waste on the...