Wiclow County Council v O'Reilly NO.4

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 July 2017
• Neutral Citation: [2017] IEHC 486
• Date: 19 July 2017
• Court: High Court
• Docket Number: [2008 No. 56SP] [2005 No. 89SP]

[2017] IEHC 486

THE HIGH COURT

Humphreys J.

[2008 No. 56SP]

[2005 No. 89SP]

BETWEEN

BROWNFIELD RESTORATION IRELAND LTD.

PLAINTIFF

AND

WICKLOW COUNTY COUNCIL

DEFENDANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

NOTICE PARTY

AND

BETWEEN

WICKLOW COUNTY COUNCIL

PLAINITFF

AND

JOHN O'REILLY, BROWNFIELD RESOTRATION IRELAND LIMITED, RAYMOND STOKES, ANNE STOKES, SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE, LOUIS MORIARTY, EILEEN MORIARTY, DEAN WASTE CO. LIMITED (IN RECEIVERSHIP), WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN, SAMUEL J. STEARS

AND

ROCKBURY LIMITED

DEFENDANTS

AND

THE ENVIRONMENTAL PROTECTION AGENCY

NOTICE PARTY

(No. 4)

Environment, Construction and Planning – Directive 2014/24/EU – Environment Impact Assessment ('EIA') – Time limit to complete remediation work

Facts: The present judgment was in relation to illegal dumping of hazardous waste by the local county council that had been ordered by the Court to carry out remediation work. The issue in the present proceedings pertained to the duration of the remediation work and the resolution of other dispute between the parties. The plaintiff in the first named proceeding contended that notwithstanding the fulfilment of the European regulations and directives in relation to the EIA, the Court must fix two years for the completion of the remediation work while the local county council sought more than six years to complete the said work on the subject site.

Mr. Justice Richard Humphreys held that the local county council would remove the illegal waste from the subject site, carry out the remediation work and return the possession of that site to the plaintiff within a period of 78 months from the date of order. The Court directed the said council to execute the remediation work step by step as provided in the present judgment. The Court observed that both the parties should devise a plan by agreement subject to the approval of the Court as to how to carry out the remediation work.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of July, 2017

1 In Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 3) (Unreported, High Court, 7th July, 2017) I rejected what might be called the Leona Helmsley theory of compliance with legal obligations. Her view allegedly was that ' only the little people pay taxes', and here the council's argument (bathed in the soothing language of proportionality that Ms. Helmsley might have done well to emulate) was in effect that only little dumps should be remediated; absent perhaps compelling or conclusive evidence of a kind that would never be insisted upon for small offenders. In finding that large dumps should be remediated, and in particular that in principle the council should carry out full remediation of the illegal landfill at issue here, the biggest illegal dump ever discovered in Ireland, it follows that extensive steps will be required and reasonable time allowed for that process. I now deal with Module III of the hearing which relates to the remaining issues on the issue paper, essentially the question of the appropriate terms for the formal order including resolution of a dispute as to how long should be afforded for the works. This judgment should be read in conjunction with the previous judgments in these proceedings.

2 Mr. Peter Bland S.C. (with Mr. Michael O'Donnell B.L.) for Brownfield submits that the matter should be treated as urgent, such that the requirements of Environmental Impact Assessment (EIA), Appropriate Assessment (AA), licensing by the Environmental Protection Agency ( EPA), planning processes and procurement processes should not be utilised, and the remediation should be carried out urgently over an approximately two-and-a-half year timescale. Mr. James Connolly (with Mr. Damien Keaney B.L.) for the council seeks a longer timescale of somewhat over 6 years from now. I have also heard helpful submissions from Mr. Alan Doyle, Solicitor, for the EPA. I note that Mr. Bland has helpfully withdrawn Brownfield's current licence application, so as to clear the ground for the order now being made.

Should public procurement requirements be set aside on the basis of urgency?

3 The council submits that procurement requirements should be complied with, Brownfield submits not and the EPA is neutral.

4 These requirements arise under directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement. In principle this project is within procurement criteria (see David Browne, The Law of Local Government (Dublin, 2014) pp. 204-205). Considerations of urgency may allow disapplication of the requirements (see Prof. Sue Arrowsmith, The Law of Public and Utilities Procurement: Regulation in the EU and UK, 3rd Ed. (London, 2014) pp. 1072-1077), but generally situations of ' extreme' urgency are required and even then, the directive's procedures should be accelerated rather than disregarded entirely. Prof. Johnston's evidence, which I accepted, was that the manifestation of the risk in receptors could unfold over a fairly lengthy period of time, and in the circumstances the risk is not the sort of acute urgency such as to set aside procurement procedures. I have of course determined that there is a current risk to the environment from the present condition of the site. While that risk (as well as the historic and current breach of the licensing regime) warrants the making of an order under s. 58 of the Waste Management Act 1996, it does not follow that that current risk translates into such a degree of urgency as to set aside all other statutory requirements. Mr. Bland submits that the judgment would be a roadmap for future s. 58 proceedings and that it would thus be ' a very bad precedent' if a party facing s. 58 proceedings could assert a need to delay remediation by reason of procedural matters because every transgressor will seek to rely on such matters, thereby erecting a further test of urgency on top of the test of risk. That submission is not without merit; but it depends what the procedural issue is. The particular issue relating to procurement is one that only affects public rather than private remediators and does not set a precedent (bad or otherwise) for the normal case where a private entity is being required to remediate its own dumping. Procurement requirements do serve important public policy functions, a point I touched on in the discussion of reasons for procurement decisions in RPS Consulting Engineers Ltd v. Kildare County Council [2016] IEHC 113, para. 58, and I would not be minded to set those requirements aside here even if I could do so, which having regard to EU law I cannot.

Is EIA/AA required?

5 The council submits that EIA and AA are required while Brownfield and the EPA consider not.

6 I held in Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 2) [2017] IEHC 397 (Unreported, High Court, 12th May, 2017) that assessment and licensing requirements were not necessary where removal works were directed by the court, as opposed to where long-term licensable activity was taking place. As the primary order here is one for removal as directed under the 1996 Act, it seems to me that the logic of allowing the Act to operate effectively and of reading the various directives harmoniously means that EIA and AA are not required. The same logic would apply where removal of illegal waste is required under any other provision of the 1996 Act.

7 Mr. Doyle submitted that remediation under directive 2008/98/EC of the European Parliament and of the Council of the 19th of November 2008 on waste (the waste framework directive) is an activity which does not require an EIA or AA. If one was contemplating a situation where the waste would remain on site that would be different but where what is being looked at is removing waste that should never have been there, it would be contrary to the effective implementation of EU law to apply the machinery of EIA and AA. On that basis, remediation ordered pursuant to national legislation implementing the waste framework directive should not be considered to require assessment or development consent under the EIA directive (Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of...