Wicklow Heritage Trust Ltd v Wicklow County Council 1996 No. 209 JR

JurisdictionIreland
JudgeMrs. Justice McGuinness
Judgment Date05 February 1998
Neutral Citation[1998] IEHC 19
Docket NumberNo. 209 J.R/1996
CourtHigh Court
Date05 February 1998

[1998] IEHC 19

THE HIGH COURT

No. 209 J.R/1996
WICKLOW HERITAGE TRUST LTD v. WICKLOW CO COUNCIL
JUDICIAL REVIEW

BETWEEN

WICKLOW HERITAGE TRUST LIMITED
APPLICANT

AND

WICKLOW COUNTY COUNCIL
RESPONDENT

Synopsis

Planning

Judicial review; certiorari; prohibition; declaration; irrationality; locus standi; whether applicant company had locus standi; whether designation of a waste disposal site a reserved function; whether waste disposal site a material contravention of development plan; whether decision to designate waste disposal site irrational; whether decision to designate waste disposal site ultra vires in the absence of waste management plan; ss. 19, 22, 26 & 39 Local Government (Planning and Development) Act, 1963; European Communities (Waste) Regulations, 1979 Held: Applicant company had locus standi; waste disposal site a material contravention of development plan; declaration, orders of certiorari and prohibition granted( High Court: McGuinness J.05/02/1998)

Wicklow Heritage Trust Limited v. Wicklow County Council

1

JUDGMENT of Mrs. Justice McGuinness delivered the 5th day of February 1998

2

In these Judicial Review proceedings the Applicant, which is a company limited by guarantee, seeks an Order of Certiorari quashing the decision of the Respondent made in or about the 8th day of March 1996 to submit an Environmental Impact Statement on a proposed East Wicklow Land Fill Site at Ballynagran, Coolbeg, Kilcandra, Co. Wicklow, to the Minister for Environment for certification pursuant to the Local Government (Planning and Development) Acts, 1963– 1993and the Regulations made thereunder. The Applicant, who alleges that the proposed development of a land fill site at Ballynagran constitutes a material contravention of the Development Plan of Wicklow County Council, also seeks a Declaration to that effect, a Declaration that the decision of the County Council to seek the Minister's certification of the Environmental Impact Statement is ultra vires and void and an Order of Prohibition restraining the County Council from further proceeding with the certification process until such time as the necessary statutory procedures for the material contravention of the said Wicklow County Development Plan have been carried out. The Applicant seeks in addition a Declaration that the designation of a site for land fill purposes is a reserved function pursuant to the 1993 Waste Regulations and that it is ultra vires the Wicklow County Manager to designate such a site having regard to the provisions of those Regulations. The Applicant also seeks a number of other Orders amounting to a Declaration that the proposed development is ultra vires the powers of the Council in the absence of the adoption of a Waste Plan.

THE FACTUAL BACKGROUND
3

In or about the year 1988 Wicklow County Council considered the adoption of a Waste Management Plan for the Council's administrative area. A draft Waste Management Plan was prepared and discussed but was never adopted by the County Council. Included in the draft plan was a survey of the then operating waste disposal sites and estimates of the waste disposal needs of the county up to the year 2006. The draft plan stressed the urgent need to secure a suitable land fill site in the north east part of the county. Potential sites at Bromley. Kilpedder and Ballyman Fassaroe were mentioned.

4

As I have already stated, the draft Waste Management Plan was never adopted by the County Council. In 1989, the following year, the Council adopted the current County Development Plan. The Development Plan set out the Council's planning objectives in considerable detail but did not refer to the objective of waste management or to the provision of land fill sites. The Development Plan has been under review for a number of years, the statutory five year review period having been extended on a number of occasions by the Minister for the Environment. However, the revised Development Plan had not been completed and adopted by the County Council at the time of the issue or at the time of hearing of the instant proceedings.

5

In September 1992 a firm of consulting engineers (MC O'Sullivan & Company Limited) was appointed as consultant engineers to the Council to prepare an Environmental Impact Statement and preliminary report for a North East Wicklow waste disposal facility to service the area which was then (and still is now) serviced by a land fill dump at Fassaroe near Bray. there was a need for a new land fill site to be provided as a matter of urgency. The consultants investigated a total of twenty-two sites and published a preliminary report in November 1993. The consultants concluded that the preferred land fill location should be at Ballynagran, subject to public consultation and the preparation of an Environmental Impact Statement and its approval by the Minister for the Environment as required by law. A model of the proposed waste disposal site at Ballynagran was prepared.

6

On 3rd December, 1993 the consultants gave a briefing to all the elected members of the County Council for the Wicklow electoral area. The proposals were then presented to a full meeting of the elected members of the Council in December 1993. In a "Newsletter" dated 6th December, 1993 prepared by the County Manager's office a series of proposals which it was stated would form the basis of Wicklow County Council's strategy for the management of waste in the East Wicklow area for the next twenty years was presented. In a summary of the proposals it was stated that the strategy proposed a "central land fill facility at Ballynagran". From January 1994 a model of the proposed land fill facility at Ballynagran was displayed in the County buildings in Wicklow and public meetings were arranged at different locations in East Wicklow to explain the proposals. The consultants then proceeded to prepare an Environmental Impact Statement on the project.

7

On 18th July, 1994 at a meeting of the elected members of Wicklow County Council a resolution was put forward under Section 3 of the City and County Management Act, 1955rejecting the proposals put forward by the consultants to locate a land fill waste disposal site at Ballynagran and calling for the other sites included in the preliminary report to be actively investigated. In their resolution the members of the Council were highly critical of the selection of Ballynagran as a land fill site on the grounds that they felt that it would do environmental damage to a scenic area, would create damage to existing agricultural and horticultural enterprises in the area, was unsuitable in a high tourist area and would generate unnecessary large increases in traffic movement on the N11 main road. On legal advice the County Manager and his officials asserted that the decision whether or not to proceed with the land fill site at Ballynagran or in any other location was solely a matter for the County Manager in the exercise of his executive functions. The County Manager refused to be bound by the resolution of the Council. Arising out of this situation judicial review proceedings were issued by a company called East Wicklow Conservation Community Limited. The proceedings came on for hearing before Costello P., who held that the provision of a site for waste disposal was a work that the Local Authority was required to undertake by or under statute and that therefore the elected councillors had no power under Section 3 of the City and County Management (Amendment) Act, 1955to direct the County Manager not to proceed with the work ( [1995] 2ILRM 16). On appeal the Supreme Court upheld the decision of the learned President ( [1997] 2ILRM 72).

8

The firm of consultants completed the Environmental Impact Statement in regard to the proposed land fill site at Ballynagran in January 1996. In or about the 8th March, 1996 it appears that the County Manager decided to forward the said Environmental Impact Statement to the Minister for the Environment for certification pursuant to Part IX of the Local Government (Planning and Development) Regulations 1994 (S.I. 86 of 1994).

9

The Applicant sought leave to issue judicial review proceedings by Statement dated 24th June, 1996. An Order granting leave was made by Laffoy J. on 25th June, 1996. The County Council filed their Statement of Opposition on 17th December, 1996. During the course of the hearing before this Court counsel for the Respondent argued that the Applicant had produced no evidence before the Court of the making of the impugned decision to forward the Environmental Impact Statement to the Minister for the Environment for certification. I accept that, apart from assertions contained in affidavits sworn on behalf of the Applicant, the Applicant did not produce specific evidence of the making of this decision on or about the 8th March, 1996. However, the lack of evidence is not challenged in the Respondent's Statement of Opposition. The decision is accepted as having taken place in the affidavits sworn on behalf of the Respondent, in particular the affidavit sworn on behalf of the Respondent by Peter Goodwin, Senior Executive Engineer, sworn the 17th December, 1996. I therefore consider that it is sufficiently well established before this Court that the decision to forward the Environmental Impact Statement to the Minister was made and put into effect.

10

Before considering the matter further I should say that I appreciate the difficulty in which the County Council finds itself. The Council has a statutory duty to dispose of household and other waste in its area. The land fill sites which are at present in use in the county will shortly be completely full and there is an urgent need for a new land fill site, particularly in the North East area of the county where there has been a very considerable increase in population in recent years. Such a land fill site will be necessary even...

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