High Court of Ireland Decisions

1. This is the third time that a dump situate at Carrowbrowne, Headford Road, County Galway has been the subject of an application to this court. The dump is owned and operated by Galway Corporation (the developer). It is situate in the functional area of Galway County Council (the planning authority).

2. All three applications have sought the compel the developer to comply with its obligations under the Planning Acts. None of the applications were made by the planning authority but rather by residents who live in the Carrowbrowne area.

3. In the two preceding applications the residents have succeeded in obtaining orders compelling the developer to comply with its duties under the Planning Acts. Similar success has not been achieved in bringing about such compliance. As a result the present application seeks the sequestration of the assets of the developer and the committal to prison of the Galway City Manager by reason of the contempt of court of Galway Corporation.

4. The lands in suit have been used as a dump since 1972. In November, 1995 Keane J. (then a judge of this court) made an order closing down part of the dump. The reason for that order being made was the failure of the developer to comply with obligations imposed upon it by a planning permission obtained in respect of the dump. Thereafter an application for a fresh planning permission was made which sought to use the dump for a period of five years. Whilst that was granted by the planning authority, An Bord Pleanála on appeal allowed dumping for just two years. That permission expired in April, 1999. Fourteen conditions were attached to the permission.

5. In proceedings which were heard by me in December, 1998 the applicants complained of breaches of those conditions. I found in their favour and granted injunctions. I inter alia restrained all refuse dumping at the site from the 11th January, 1999 and directed the developer to continue to service the dump by carrying out the obligations imposed under the Bord Pleanála planning permission.

6. In the course of a judgment which I delivered on that occasion, I came to the conclusion that the developer had been guilty of a deliberate and conscious violation of the terms of the planning permission. Landfill which ought to have ceased no later than the 9th April, 1998 was still going on in December of that year.

7. This judgment ought to be read in conjunction with the findings which I made in my judgment of the 11th December, 1998, a copy of which I attach to this ruling.

8. In the light of the thoroughly unsatisfactory behaviour of the developer requiring the residents to obtain injunctions on two occasions and in the light of the findings made by me in December, 1998 it was to be expected that the developer (particularly since it itself is a planning authority) would be meticulous in complying with the terms of the order of the court. Such, unfortunately, has not proved to be the case. Rather on this hearing the developer has admitted further breaches of the planning permission granted by An Bord Pleanála and the order of this court of December, 1998.

9. The applicants complain of seven breaches on the part of the developer. They are: (a) the depositing of waste, (b) the disposing of liquid or aqueous sludge, (c) failure to landscape the dump in accordance with plans and particulars approved by the planning authority, (d) failure to landscape within the agreed time scale i.e. two years from the date of the order of An Bord Pleanála, (e) failure to maintain a perimeter drain, (f) failure to provide a perimeter road on the east side, (g) construction a leachate plant for which planning permission was not obtained and failure to construct the plant required by the planning permission.

10. At the hearing before me it was accepted that the developer is indeed in breach of the order of the court of December, 1998 in a number of respects. The conditions in relation to landscaping, the perimeter drain, the perimeter road and the construction of the leachate plant in accordance with the permission granted have not been observed by the developer. In respect of a number of these the developer has proceeded with its own course of action regardless of the conditions in the permission. This was done with full knowledge of the order made by this court. A dispute exists concerning dumping. There was no waste disposal activity on the site from January, 1999 until February of this year. Since then in the order of 200 truck loads of material called marl have been deposited. This material has the appearance of sludge but the developer says that when it dries out it is an appropriate material to use for landscaping purposes. The material is being supplied at no cost to the developer and is being hauled from a development site run by a company called O'Malley Construction Limited. That company clearly does not want it and is in effect giving it away. It is said that this material is being used for the purpose of restoration works. It appears to me that the marl is material being discarded by O'Malley Construction Limited and falls within the definition of 'waste' as contained in the relevant legislation. Such evidence of a scientific character as is produced in support of the developer's contention is not in my view satisfactory since the analysis was not carried out for the purpose of the exercise being engaged in and on one view of it the marl is unsuitable for the very task for which the developer says it is being used. I take the view that the whole circumstances concerning the supply and delivery of this material is unsatisfactory. I am of opinion that so far as the dumping of this material is concerned the developer is also in breach of the terms of the order in respect of it.

11. At the hearing it was acknowledged that there had been serious breaches of the order of the court of December, 1998. An apology was tendered in that regard. I furthermore heard sworn testimony from the recently appointed City Manager as to the approach which he proposes to adopt. He indicated to the court that henceforth there would be compliance by Galway Corporation with its obligations and that insofar as planning permissions or approvals either for retention or new developments were concerned these would be attended to as a matter of urgency. He also indicated that he was prepared to have the court monitor the further use of the dump by Galway Corporation. Counsel on behalf of the developer acknowledged that the breaches which have taken place to date were very serious. He asked that in the light of the approach of the City Manger as expressed to the court under oath the court ought not to make an order for the sequestration of the developer's assets nor commit the City Manager to prison for contempt.

12. In this case the developer has now admitted to serious breaches of the court order granted in December, 1998. It is said that these were not intentional. That is difficult to accept in the light of the unappealed findings made by me in December, 1998 to the effect that as far back as then Galway Corporation had been guilty of a deliberate and conscious violation of the terms of the planning permission granted to it. There does not appear to have been much change in approach on the part of Galway Corporation from that which obtained in December, 1998 to date. For example the non-compliance with the planning permission in respect of the internal road took place in the summer of 1999. The engineer involved indicated that he was fully aware of the views of the court in respect of previous deviations from the terms of the planning permission. But as he thought it was the right thing to do he simply deviated from the planning permission. He says that he was not conscious that he was so doing but I find that difficult to accept given that he is an experienced engineer working for the developer which is itself a planning authority. The best that can be said for the developer in my view is that it was indifferent to the obligations imposed upon it both by the order of the court and the terms of the planning permission. Furthermore, these are not minor deviations from the terms of the permission. They are substantial and material. They occurred notwithstanding the appalling history that Galway Corporation already has in respect of compliance with its obligations under the Planning Acts. Worse still, the fact that the developer here is in its own right a planning authority, responsible for the enforcement of planning control in Galway City, sets an appalling example.

13. This is an extremely serious contempt of court which in the light of all that had taken place before concerning this site, must be viewed as such by the court.

14. The applicants are perfectly within their rights in seeking the orders which they do. The sequestration order would have devastating consequences for Galway Corporation. The committal of an individual to prison could have similar effects.

15. I have great sympathy with the applicants who are yet again in this court seeking to have Galway Corporation live up to its obligations.

16. As the contempt which has been proved here is a civil contempt, the object of making either of the orders sought is coercive. By making such orders it is hoped that the developer will be coerced into complying with the injunctions. In the light of the undertakings which I received on oath from the City Manager and of the other provisions of the order which I will make and which I will come to in a moment, I am not satisfied that it is necessary or appropriate to make either of the orders sought at this juncture.

17. Insofar as the committal of the City Manager is concerned it must be borne in mind that the present incumbent has only very recently taken up that post. His approach to this matter was to come to court personally and give undertakings to the court under oath. He also expressed contrition in respect of the past failures and has assured me of his personal involvement to ensure the Corporation's compliance with its obligations in the future. In those circumstances I refuse the application which seeks to commit him to prison.

18. Insofar as sequestration is concerned I propose to defer making a decision on that upon terms. I am satisfied that the court must, in the words of Henchy J., "... become the guardian and supervisor of the carrying out of the permitted development according to its limitations" in this case. I therefore propose, at the expense of Galway Corporation, to appoint an independent engineer who will report to the court within a specified time as to the level of compliance by the Corporation with its obligations under the terms of the existing court order. He will also report on the progress being made in obtaining either the necessary consents or permissions required to regularise the position. In this regard the Corporation will be obliged to give full cooperation to this engineer so as to enable him to carry out his task effectively and to report to the court within the specified time.

19. I am also going to grant a further injunction restraining the deposit of any further marl at Carrowbrowne. I am not satisfied that the developer has any entitlement to do this under the terms of the existing permission and court order.

20. By these methods I hope to ensure compliance by the Corporation with its obligations without further ado. The application for the appointment of sequestrators will therefore be adjourned so as enable me to receive the report of the independent engineer.

21. Whilst the orders that I have made will deal with the future, I must nonetheless view what has occurred to date with the utmost seriousness. In view of the admitted breaches of the court order by the developer (which is itself a planning authority) and of the earlier deliberate and conscious violation of the terms of the planning permission (which in turn had been brought about only because of the order made by Keane J.), I must mark the court's disapproval in a material way. Not to do so would be wrong. What message would be sent to other developers if this one, which is itself a planning authority, was allowed to behave as it has without the imposition of a sanction? I take the view that the appropriate way to do that is by the imposition of a fine. Taking all matters into consideration I impose a fine of £50,000.

22. The Corporation will also have to pay the costs of the applicants on the highest possible scale. I accordingly award them the costs of this application and any reserved costs attendant upon it on a solicitor and own client basis.