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You are here: BAILII >> Databases >> Irish Court of Appeal >> Wicklow County Council v O'Reilly & Ors; Brownfield Restoration Ireland Ltd. v Wicklow County Council [2019] IECA 257 (16 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019_IECA_257.html
Cite as: [2019] IECA 257, [2019] 10 JIC 1607
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Birmingham P.
Whelan J.
Costello J.
THE COURT OF APPEAL
CIVIL
Neutral Citation Number: [2019] IECA 257
Record Nos. 2017/432
2017/433
High Court Record Nos. 2005/89SP
2008/56SP
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/
Record No. 2017/433
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
Record No. 2017/432
BROWNFIELD RESTORATION IRELAND LIMITED
- AND -
WICKLOW COUNTY COUNCIL
PLAINTIFFS
DEFENDANT
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
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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
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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 lands, having regard inter alia to the “polluter
pays” principle. The council sought an order pursuant to s. 58 of the Act of 1996 requiring
the defendants to take such steps or measures which the court shall specify to be
necessary to mitigate or remedy any effect of environmental pollution caused and/or
being caused by the said activity, within such time as the court should direct. It also
sought an order directing the defendants to pay to it all costs, outlays, fees and expenses
incurred and/or expended by the plaintiff in relation to its investigation and detection of
waste held and/or recovered and/or disposed of by the defendants.
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11. These proceedings would not be particularly remarkable save for the astounding fact that,
for more than two decades, the council itself had dumped vast amounts of waste at the
illegal landfill. Furthermore, there had been complaints to the council from 1989 onwards
concerning the enormous illegal dump operated openly on the site. In the circumstances,
it is absolutely astonishing and shocking that in 2001 the council claimed to have
“discovered” the illegal dumping, and then proceeded in 2005 to sue twelve other parties,
and to seek to compel them to remediate the site, while declining to accept any
responsibility itself for the situation.
12. The 2005 proceedings were grounded on three affidavits, one of which was sworn by Mr.
Donal O’Laoire, the person who had been appointed by the council as an authorised
officer under the statutory codes and charged with responsibility for remediation of the
site. Mr. O’Laoire’s affidavit warned of the environmental risk presented by the enormous
deposit of waste in such a sensitive location and urged that the court should require the
removal of all waste and contaminated soil before further pollution arose.
13. Brownfield discovered the fact that the council was, to a considerable extent, responsible
for illegal dumping on the site and it then issued proceedings pursuant to s. 58 of the Act
of 1996 against the council in 2008 (“the 2008 proceedings”). It sued as the owner and
occupier of the land, and said that it was the owner of, in or about, 8.65 hectares of land,
having purchased them from Mr. O’Reilly in or around 2003. Brownfield alleged that the
council was causing and/or had caused environmental pollution as defined by s. 5 of the
Waste Management Act 1996, and that the council was holding and/or recovering and/or
disposing of waste on the lands in the absence of a waste licence contrary to s. 39(1),
and/or a waste permit contrary to s. 34 of the Act of 1996. It also claimed that certain
steps of remediation were required to be taken to mitigate and/or remedy the effect of
illegal holding, recovery and/or disposal of waste by the council on the land, having
regard, inter alia, to the “polluter pays” principle. It sought orders which mirrored those
sought by the council against, inter alia, Brownfield in the 2005 proceedings.
14. Both actions came on for hearing together before O’Keeffe J. in the High Court in 2009. At
that point in time, the council claimed that any materials deposited or dumped by it at the
illegal landfill were inert in nature. This was emphatically rejected subsequently in the
High Court by Humphreys J. The trial before O’Keeffe J. ran for twenty-three days, of
which eight were taken up by a motion by Brownfield seeking a direction of a mistrial on
the basis of the inadequate discovery made by the council to date. The High Court held
that Brownfield had been prejudiced by the failure of the council to make proper
discovery, but refused to order a mistrial. The council was ordered to make a further
affidavit of discovery, which was finally delivered on the 27th October, 2011, the seventh
of its affidavits of discovery in the proceedings.
15. The European Commission continued to pursue Ireland in relation to the failure to deal
with over one hundred illegal landfills. It issued a formal notice on the 30th September,
2010 which included a complaint regarding the delay in dealing with the Whitestown
dump.
Page 5 ⇓
16. The cases had been adjourned generally while the council was making further discovery.
Once this was completed the cases were listed to recommence before O’Keeffe J. on the
24th January, 2012. On the resumed date the council applied to adjourn the proceedings
generally, with liberty to re-enter, as the council proposed to carry out remediation works
itself pursuant to s. 56 of the Act of 1996. The High Court was assured that within a year
it would deliver a remediated site, probably enhanced in value, with a windfall to
Brownfield. Both the High Court and Brownfield believed that the council would proceed in
accordance with its position to date: that all of the waste and contaminated soil was
required to be removed in order properly to remediate the site and that this was the
course of action it was proposing to follow. On this basis, the High Court acceded the
application to adjourn the proceedings with liberty to re-enter.
17. In fact, the council had decided, once it was the party responsible for remediation, that
“as much as possible [of the waste] will be allowed to remain on site”. As Humphreys J.
stated in his judgment no. 3 of the 7th July, 2017:-
“Wicklow County Council was one of a number of polluters engaging in
significant illegal dumping at a huge illegal dump in Whitestown, Co. Wicklow,
apparently the largest illegal landfill in the State. Following closure of the site in
2001, when the council envisaged that other dumpers would be paying for
remediation, it proposed a scheme of full remediation, processing and removing all
non-inert waste at a cost of anything up to €35m depending on the methodology
availed of. But when the remediation was actually carried out at public expense, the
council spent the much reduced figure of €3.868m, in a process that left at least
93% of the waste on site.”
18. The trial judge referred to this as a “bonsai” remediation and a “botched” remediation. He
concluded emphatically at the end of his third judgment that, by reason both of the waste
which had been dumped on the site and of the botched efforts by the council to remediate
the site, it was necessary to remove all waste and contaminated, or potentially
contaminated, soil from the site in order to comply with the requirements of
environmental protection law.
19. Notwithstanding the fact that the council’s remediation exercise left 93% of the waste on
the site, in 2015 the council told the Department of the Environment that it had
successfully remediated the site and Ireland then informed the European Commission on
the 26th June, 2015 that all waste had been removed from the site. The council cannot
have believed that this was the case. Tests conducted in 2015 revealed that the waste
on-site was polluting the ground water which flowed into the nearby River Slaney.
Notwithstanding this fact, the council took no steps to correct the information furnished
by Ireland to the Commission.
20. Brownfield was dissatisfied with the situation and it applied to re-enter the two
proceedings in July, 2016; a resumed hearing commenced on the 7th March, 2017 before
Humphreys J. That hearing ultimately ran for fifty-three days and concluded on the 19th
July, 2017. Part of the hearing was taken up in pursing an argument raised by Brownfield
Page 6 ⇓
which was ultimately rejected by the trial judge. Most of the time was spent on the issues
whether or not the site was contaminated and whether there was an environmental risk.
The council maintained that the site no longer posed any environmental risk. In addition,
there were a significant number of legal arguments advanced by the council as to why it
should not be required to remediate the site in full even if the trial judge found that there
was a continuing environmental risk posed by the site.
21. The council emphatically lost the case and the court directed the council to remediate the
site in full. The council discontinued the 2005 proceedings against Brownfield. While the
council lost the war, it won a number of skirmishes along the way. So, despite the fact
that Brownfield obtained the relief it sought in the 2008 proceedings and the 2005
proceedings were discontinued against it, it appealed against the time afforded to the
council to comply with the order of the court, and against the order for costs insofar as
not all of the costs had been awarded to Brownfield.
The time allowed for remediating the site
22. The trial judge heard submissions from the parties as to the form of order which he
should make in light of the findings made in his third judgment. He rejected Brownfield’s
argument that the requirements of public procurement should be set aside on the basis of
urgency. He rejected the submission of the council that it was necessary to conduct an
EIA and an AA, and that it was required to obtain a licence from the EPA for the works, or
a grant of planning permission. The trial judge held that, while neither an EIA nor an AA
were required as a matter of law, the council was not prohibited from carrying out an
assessment along the lines of what is required in an EIA report and a NIS in its
remediation plan, and that he proposed to facilitate that. He accepted that the parties
would endeavour to agree a remediation plan, and that when the plan was decided upon
the parties should return to court to have it approved or to have any remaining issues
resolved.
23. He then went on to consider the time by which the council should comply with the court
order. He noted that neither party had put forward any specific evidence on the issue and
stated that he was forming his own view of the likely magnitude and scope of the task,
based on his assessment of all of the evidence he had received in the proceedings to
date. He specifically held that a detailed process was more likely to ensure that there was
a minimum of disagreement on the details of the remediation plan when it came back to
court for approval. On that basis he directed:-
“23. The timescale I consider appropriate based on the foregoing considerations is as
follows. In setting out these steps, the intention is that the council will be bound as
to the steps to be carried out but not as to the exact timescale for each individual
step (other than that everything should be completed within 78 months). The
intermediate time scales must therefore be regarded as indicative only.
1. Prepare a briefing document in respect of the appointment of an
environmental consultant –2 months from the order.
Page 7 ⇓
2. Invite and receive tenders in respect of the appointment of an environmental
consultant –2 months from step (1).
3. Consider tenders and appoint an environmental consultant –2 months from
step (2).
4. Preparation of remediation plan, including such measures as the council
wishes to include in relation to an Environmental Impact Assessment Report
and Natura Impact Statement, to be prepared by the environmental
consultant –6 months from step (3).
5. Circulate draft remediation plan to Brownfield and EPA and allow comments
plus consultation and entities that are statutory consultees for EIA/AA
purposes –3 months from step (4).
6. Review by council of draft remediation plan in the light of observations
received together with any consultations between parties aimed at resolving
disagreement – 2 months from step (5).
7. Circulate the revised draft remediation plan back to EPA and Brownfield plus
public consultation and statutory consultees – 3 months from step (6).
8. Review by council of revised draft remediation plan in the light of
observations received together with any consultations between parties aimed
at resolving disagreement. Prepare final draft of plan and, if disagreement
remains between the parties, preparation by the council of a Scott schedule
setting out areas of disagreement with the parties' respective positions – 2
months from step (7).
9. Presentation of agreed final draft of remediation plan to court or in the event
of no agreement, presentation of council's final draft plan together with
identification of areas of dispute; resumed hearing and order of the court
receiving or approving the plan as the case may be – to conclude within 6
months of conclusion of step (8).
10. Preparation by the environmental consultant of tendering documentation in
respect of the appointment of a contractor to undertake the works permitted
under the remediation plan –3 months from step (9).
11. Invitation and receipt of tenders for appointment of contractor – 2 months
from step (10).
12. Consideration of tenders and appointment of contractor – 3 months from step
(11).
13. Carrying out of and completion of works permitted under the remediation
plan and restoration of the site – 36 months from step (12).
Page 8 ⇓
14. A strictly limited period of post-remediation monitoring to confirm no
unexpected pollution emissions – 6 months from step (13).
15. Handover of possession of site to plaintiff – forthwith on completion of the
time period allowed for the limited monitoring in step (14). The total duration
of the process is therefore 78 months.”
24. When one examines each of the steps set out in this paragraph of the judgment, it
appears to me that all of them are either necessary, or appropriate, in the circumstances
of the huge illegal dump which requires remediation. Some of the steps are unavoidable.
The council is obliged to comply with the requirements of public procurement law. Even in
urgent situations, the timelines for complying with the requirements of public
procurement are truncated, not dispensed with. The trial judge was required to balance
practicalities with risk. There is a risk of leachate discharging into the ground water during
the process of remediating the material, and there is a requirement to cover the waste
every night. There may be other risks which need to be identified and addressed in the
preparation of the remediation plan. It is appropriate and sensible that the council and
Brownfield have the opportunity to consult with the EPA and statutory consultees in
relation to the plan. Given the previous history of this site, and in particular the distrust
arising from the “botched” remediation by the council and the denial by the council that
any further remediation is required, this is wholly appropriate in my judgment.
25. It is, therefore, simplistic to say that the trial judge on the one hand rejected the
requirement of the council to conduct an EIA or AA, but on the other hand failed to “strip
out” the time for conducting an EIA or AA when he fixed the overall time for compliance
with his order. Time is required for consultation and preparation of a plan, whether or not
the council conducts a quasi EIA or AA. The steps set out by the trial judge, including a
resumed hearing and order of the court receiving or approving the plan as the case may
be, involves steps 1-12 of the order and in my judgment, were necessary. Certainly, I do
not accept that the trial judge was in error in directing any of the steps listed. The times
suggested for each step are indicative, not binding and they seem to me to be reasonably
tight for a public authority to comply with.
26. Brownfield does not dispute the time for carrying out and completing the works, and for
post-remediation monitoring, set out in steps 13 and 14. In essence, its objection is to
the pre-commencement of work steps which the court deemed were necessary steps to
be taken. In my judgment, his assessment is within the margin of appreciation to be
afforded to a High Court judge in the exercise of his discretion as to the order to be made
pursuant to s. 58 and, in particular, in this case of its exceptional complexity and
unedifying history.
27. For this reason, I would reject this ground of appeal.
Costs of the 2005 proceedings
28. O’Keeffe J. made two orders dealing with the costs in this case. On the 7th December,
2010 he refused Brownfield’s application for an order pursuant to the inherent jurisdiction
Page 9 ⇓
of the court declaring to date a mistrial; however, in view of the fact that it had been
prejudiced by the council’s failure to make proper discovery, he ordered the council to pay
60% of the costs to Brownfield. This disposed of the costs of eight of the twenty-three
days the trial ran before O’Keeffe J. In 2009, Brownfield issued a motion seeking an order
for the costs of the entire proceedings. O’Keeffe J. refused that motion and ordered
Brownfield to pay the council the costs of the motion. He also ordered the council to pay
Brownfield the cost of the adjournment application, to include the times it was listed for
mention. In July 2017, Humphreys J. ordered the council to pay Brownfield the costs of
the 2005 proceedings, to include reserved costs, save for the two costs orders of O’Keeffe
J. and the costs arising following the re-entry of the proceedings in 2015.
29. There can be no complaint as regards the prior orders of O’Keeffe J.; they were not the
subject of an appeal and Humphreys J. could not interfere with those orders. Brownfield
was otherwise awarded the costs of the 2005 proceedings. Its only complaint, therefore,
is the costs of the 2005 proceedings incurred since the re-entry of the proceedings in
2015. In his judgment issued on the 12th May, 2017 [IEHC] 397, Humphreys J. noted
that the council had brought two procedural motions; one to have Rockbury Ventures
Limited joined as a defendant in the 2005 proceedings, and one to re-enter the 2005
proceedings against Brownfield. He ordered that the application to strike Brownfield out of
the 2005 proceedings was to be postponed until not before the determination of the
application to add Rockbury as a party, and if that application is granted, until not before
the hearing of any similar application by Rockbury, if brought. He then ordered that “the
other elements of the 2005 proceedings be listed to be taken up immediately following
the determination of the 2008 proceedings and that the council be required to notify all
parties accordingly”. Thus, it is clear that while the 2005 proceedings remained live
against Brownfield, they were, in effect, postponed until the 2008 proceedings were
determined. As these were ultimately determined in favour of Brownfield, and the council
discontinued the 2005 proceedings against Brownfield, no further costs were actually
incurred in the 2005 proceedings.
30. It is in the light of this order that one has to consider the order for costs made by
Humphreys J. on the 19th July, 2017. At para. 7 of his judgment he provided that the
costs of the 2005 proceedings will not include any costs incurred after the re-entry of the
proceedings in 2015 because costs since then had essentially arisen under the 2008
proceedings. He held:-
“…The only matter regarding the 2005 proceedings since then that Brownfield
were significantly affected by is the application in relation to Rockbury but as that
arose as a result of incorrect and inaccurate averments on behalf of Brownfield that
the latter was the owner of the site. That had to be rectified and indeed it could
have been rectified more rapidly had Brownfield not put forward those inaccurate
statements. So to avoid double counting of costs then there will be no order for
costs after the re-entry of the proceedings in 2015 and the costs incurred after
that date are essentially to be treated as having been incurred in the 2008
proceedings.” (emphasis added)
Page 10 ⇓
31. The net effect of these orders and rulings is that Humphreys J. awarded Brownfield the
costs of the 2005 proceedings up to the re-entry of the proceedings in 2015, save insofar
as costs were previously dealt with by O’Keeffe J. Insofar as any costs arose after the
2005 proceedings were re-entered, they were to be treated as costs in the 2008
proceedings. Given the fact that the parties had, by agreement, treated the affidavits in
the 2005 proceedings as relevant to the 2008 proceedings, and the fact that affidavits in
the 2005 proceedings were relied upon heavily by Brownfield in particular in Module II of
the 2008 proceedings, this seems to me entirely sensible. The Taxing Master, in effect,
has been directed to allow all such costs as part of the 2008 proceedings and to tax those
costs in accordance with the order of Humphreys J. in the 2008 proceedings.
32. Of course, it is true that the application to join Rockbury Ventures Limited as a co-
defendant in the 2005 proceedings was a motion brought in the 2005 proceedings and not
in the 2008 proceedings. However, this matters little as the trial judge made a specific
order in relation to this application, and he did so in accordance with his ruling that all
such costs were to be treated as costs in the 2008 proceedings. Brownfield was unable to
point to any prejudice which it might suffer as a result of this order and, in my opinion, no
sufficient error of principle was identified such as would warrant this court interfering with
the exercise of the High Court’s discretion in relation to the costs of the 2005
proceedings. I, therefore, reject this ground of appeal.
Costs of the 2008 proceedings
33. The matter is otherwise with regard to the 2008 proceedings. Brownfield was clearly the
victor in the 2008 proceedings also. This should be reflected in the order for costs unless
there is a special reason to depart from the rule. Furthermore, in my opinion, the
provisions of Ord. 99 RSC are reinforced in this case by the application of the principle
that the polluter pays. In my judgment, the trial judge failed to give sufficient weight to
this principle when he ruled on certain elements of the costs of the 2008 proceedings. As
was submitted by counsel for Brownfield, it is not appropriate that the polluter should be
awarded its costs against the party who obtained orders against it to remediate the
pollution for which it was, and is, responsible, unless there are very cogent reasons to the
contrary which would justify departing from a principle established by European Law.
34. Brownfield contended that the trial judge erred in holding that this was a complex case to
which the principles in Veolia Water UK Plc and Others v Fingal County Council,
Respondent (No. 1) [2007] 1 IR 690 apply. It submitted that it was a one issue case:
should the council be ordered to remediate the Whitestown dump? The council lost on this
point and therefore all of the costs of the action should be awarded to Brownfield against
the council.
35. In my judgment, the trial judge was correct in holding that the litigation was complex. It
generated an extraordinary amount of technical evidence and legal argument, on a
myriad of distinct issues. It was perfectly possible that Brownfield might not succeed in
relation to one or more of these issues, but nonetheless succeed overall. It was,
therefore, open to the trial judge to decide that the principles set out in Veolia Water
applied in the case of one or more of these issues, depending on the time taken on the
Page 11 ⇓
issue and whether it was, in fact, reasonable or appropriate for the successful party to
pursue the issue on which it was ultimately unsuccessful, as it did.
36. The trial judge ordered that the case proceed by way of a modular trial. He made no
order as to costs in respect of the application for a modular trial. The application was
brought by the council and agreed to by Brownfield. Normally, the cost of such an
application would be costs in the cause. This is because costs have been properly incurred
on a procedural matter which is of equal benefit to the parties and in ease of the court. In
fact, the trial judge determined the issues to be dealt with in each module, so it clearly
assisted in the efficient hearing of an already very unwieldy case. It is appropriate that
there should be an order as to costs as opposed to no order as to costs and that they
should go to the party who ultimately prevails, in accordance with the primary rule as to
costs. Such an award of costs would have been appropriate in this instance and would
have preserved the costs for the victor. In my opinion, the trial judge erred in failing to
award the costs to the prevailing party, Brownfield. I allow the appeal on this ground, and
direct that the council pay to Brownfield the costs in respect of the application to proceed
by way of a modular trial.
37. Brownfield appealed the trial judge’s decision to make no order as to costs in respect of
the application by the council to re-enter the proceedings against Swalcliffe Limited,
which application ultimately was not proceeded with. Time was taken by the council on
this motion and Brownfield incurred legal costs simply by being in court, even if it was not
a matter which directly concerned it. Brownfield was not excused from attending court at
any stage and, therefore, was obliged to incur costs for whatever time was devoted to the
application. Therefore, any expenses incurred by Brownfield in relation to this application
should be recoverable by it. The fact that they may be relatively modest, in that
Brownfield may not have prepared any replying affidavit, does not detract from the fact
that, in my judgment, the trial judge erred as a matter of principle in withholding the
costs incurred by Brownfield being in court for an application brought, and not proceeded
with, by the council. I allow the appeal in respect of this order, and order that Brownfield
recover from the council the costs in respect of the application to re-enter the
proceedings as against Swalcliffe Limited.
38. The trial judge ordered that there be no order in respect of the costs of agreeing the issue
paper herein. As in the case of the application for a modular trial, I am of the opinion that
he erred as a matter of principle in making no order as to costs in respect of this matter
for the reasons set out above. It is not appropriate that the successful party is thereby
deprived of the costs which should otherwise have been awarded to it. I allow the appeal
to that extent and reverse the order. Accordingly, the order should be that the council is
to pay to Brownfield the costs of agreeing the issue paper herein.
39. The trial judge ordered that Brownfield was to pay the council the costs in respect of the
application by the council to join Rockbury Ventures Limited as a defendant to the 2008
proceedings (sic) on the basis that it was Rockbury Ventures Limited, and not Brownfield,
who was the owner of the land from 2003. In my judgment, the trial judge correctly
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identified the fact that had Brownfield stated the position correctly from the beginning,
and had it made clear that Rockbury Ventures Limited and not Brownfield was in fact the
purchaser of the site, then the confusion with regard to the parties, and the need to join
Rockbury Ventures Limited to the proceedings, would not have arisen. Furthermore, the
problem could have been resolved much sooner (as it ultimately was) by Rockbury
Ventures Limited transferring title to Brownfield. This was a problem generated entirely
by Brownfield which was required to be rectified. I do not accept that the trial judge erred
in principle in the exercise of his discretion, and I would not interfere with the trial judge’s
decision in respect of these costs.
40. Late in the trial the council applied to file a supplemental affidavit pertaining to the
decision of the council to exercise its powers under s. 56 of the Act of 1996.
Unfortunately, neither the council nor Brownfield appreciated that, in fact, the documents
had already been exhibited by Brownfield in the extraordinarily voluminous materials
previously put before the court. The initial error was that of the council and it did not
realise its error until it was pointed out to it by Brownfield. Brownfield only realised that
the documents sought to be introduced were already before the court well into the
hearing of the application. In relation to this issue the trial judge said at para. 12:-
“Brownfield only announced well into the hearing of that issue that its view was
that the documents were already exhibited. They should have signalled that
position well before 11 am on the day. Parties are required to save the court's time
and it was not helpful, to say the least, to have saved the point until towards the
end of the reply to the application. The approach adopted did not pay due regard of
the need to make the most efficient use of the court's resources. I do not believe
that counsel intended to waste the court's time but unfortunately that was the
effect of the course of action adopted. Inadequate attention was given to the need
for husbandry of scarce judicial resources and I must mark the fact that that was
not the appropriate way of meeting the application by awarding costs to the
council.”
41. In my judgment, these strictures apply equally to the council, who brought the
unnecessary application. The appropriate order in the circumstances would be to make no
order as to costs. It is not appropriate to exonerate one party and to visit the costs of the
mistake on the other party on the basis that they only recognised the error “well into” the
hearing of the application. In my judgment, this amounts to an error in principle by the
trial judge, a fortiori, when the principle of the polluter pays is brought to bear. I would
vary the High Court order, and order no costs in respect of this matter.
42. Modules III and IV were concerned with the form of the order and the order as to costs.
Separate applications on these two matters were necessary owing to the complexity of
the case and the nature of the order to be made. In my judgment, the trial judge erred in
principle in his approach to these modules. They were concerned with the form of order
and the costs of the proceedings. They were necessary applications which flowed from the
outcome of the proceedings. Brownfield did not unduly prolong the hearings nor raise
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issues which ought not to have been raised. Thus, there was no reason to apply Veolia
Water principles. In my judgment, the trial judge erred in approaching the issue of the
costs associated with determining the form of the order and the costs of the proceedings
on the basis that the party whose submissions found most favour with the court should be
awarded the costs of the applications. This loses sight of the fact that the council lost the
proceedings and these applications were necessary to give effect to the decision of the
court in Brownfield’s favour.
43. Furthermore, the trial judge was, strictly speaking, incorrect to say that the council had
succeeded as regards the substantive order to be made. The council unsuccessfully
argued that it was required to perform an EIA and an AA, that it required planning
permission to carry out the work and that it required an EPA licence. The trial judge
expressly noted that neither party had submitted any evidence as to the timelines to be
adopted. The trial judge made clear that he largely crafted the form of the order and the
steps to be taken himself, in light of his rulings and the extensive evidence he had
previously considered. It is noteworthy that the council did not apply for the costs of this
Module or Module IV. In my opinion, in all the circumstances the trial judge erred as a
matter of principle in awarding the costs to the council, and in failing to award the costs
to Brownfield. I would allow the appeal, therefore, and award Brownfield the costs of
Modules III and IV against the council.
44. The trial judge awarded Brownfield the costs of Module II as against the council and there
was no appeal in relation to that order.
45. This leaves the appeal in relation to the order for costs in respect of the first module. The
trial judge ordered that Brownfield was entitled to one third of the costs of that module
and that the council was entitled to two thirds of the costs of the module; there was to be
a set-off between the two, so the net effect was that the council was to recover from
Brownfield one third of the costs of Module I. The trial judge explained that, in his
opinion, Module I was mainly concerned with the issue of mala fides on the part of the
council. Serious allegations were made by Brownfield against the council and Brownfield
did not succeed in those issues, although it won on certain legal issues. He noted that he
had rejected corruption allegations against the council and said that he could have regard
to the failed nature of those allegations when dealing with the costs.
46. The first point that needs to be clarified is the extent of Module I. In its appeal, Brownfield
asserted that the trial judge, in effect, did not rule on all of the costs of the hearing
before him. The submission was predicated on the basis that Module I did not commence
until after the court had directed a modular trial, many days after the trial recommenced.
This is incorrect. The council made clear in its application to the trial judge that it was
applying for costs in respect of this module on the basis that Module I ran from the date
the trial recommenced before Humphreys J. on 7th March, 2017 until the trial judge
delivered his judgment in respect of Module I. In my judgment, it is clear that the trial
judge treated Module I as commencing on 7th March, 2017 and he awarded costs on that
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basis. There was thus, no failure to address the costs of the hearings preceding the order
that the case proceed on a modular basis.
47. The trial judge was best placed to assess how much of the time from the 7th March, 2017
until the conclusion of Module I (save in relation to the issue of framing the issue paper
and the actual application for a modular trial) was devoted towards the issue of alleged
corruption/mala fides of the council, as opposed to the legal issues dealt with in judgment
no. 2. It was his assessment that it was “mainly” on conspiracy/mala fides issues. He
clearly considered it to be more than the six days in which Mr. Sheehy and Mr. O’Laoire
were cross-examined by counsel for Brownfield.
48. Brownfield succeeded in establishing that Mr. O’Laoire had intended to engage in a
corrupt practice in relation to the subsequent development of the site as a commercial
venture. However, the trial judge rejected its argument that the council was also involved
in this corrupt design. The trial judge was of the view that disentangling the possible
liability of the council for the proposed actions of Mr. O’Laoire, and his syndicate, was not
in fact necessary to determine the issues before him. Thus, this brought into play the
principles in Veolia Water. The trial judge felt that pursuit of this issue was a discrete
matter in respect of which he felt it was appropriate to make an order for costs against
the overall victor in the proceedings, being the party who was unsuccessful on this
particular issue. Brownfield has not established any error on the part of the trial judge in
this regard. Further, it seems to me that it is a matter to which the principle that the
polluter pays does not apply. In those circumstances, it seems to me that the High Court
should be awarded a margin of appreciation as to how it apportioned the time taken on
this failed and ultimately irrelevant, although extremely grave, issue. I am not satisfied
that the appellant has established that the trial judge erred in principle in the manner in
which he dealt with costs in respect of Module I and, accordingly, I refuse the appeal in
respect of this portion of the order.
49. Finally, there is no reason, in principle, why there should not be a set-off where there are
costs awarded to opposing parties in proceedings in respect of different issues. It is clear
that the council would be a mark for any costs ultimately due and owing in favour of
Brownfield. The same might not be said in respect of Brownfield, in view of the application
to come off-record made, mid-trial, to the High Court. In those circumstances, it seems to
me that it was properly within the discretion of the trial judge to order that the ultimate
award of costs should be set-off as against each other.
50. Brownfield says that there should not be a set-off between the costs awarded in the two
different proceedings. It is not clear why this is so, or what prejudice Brownfield suffers
as a result. Brownfield will be owed costs by the council in the 2005 proceedings. It is
likely that it will be owed costs by the council in the 2008 proceedings after the individual
orders have been set-off in those proceedings in light of the outcome of this appeal. The
costs awarded included reserved costs. Insofar as there may be some difficulty in
apportioning costs between modules or issues, that is a matter to be resolved by the
Taxing Master and is a matter peculiarly within his area of expertise. In light of the
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outcome of this appeal, it is unlikely to prove as problematic as counsel for Brownfield
submitted.
Conclusion
51. Brownfield has not established that there was any error in the time afforded to the council
to comply with the order that it is to remediate the site at Whitestown in full. I refuse the
appeal in relation to the form of the order. The trial judge erred in principle in relation to
some of the orders as to costs, as I have set out. I allow the appeal in respect of those
matters and I order 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 Limited and the costs of Modules III and IV.
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 (as amended). The balance of the order is affirmed.
Result: Appeal refused, Appeal allowed as to cost Order