Supreme Court of Ireland Decisions

.V.

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(2)

“It is ordered that the Defendants, their servants or agents do mechanically remove spartina set out in the said document subject to the use of the Defendant of existing access for machinery and the Defendant not commencing work until Duchas agree the exact boundaries of the removal area as set out in the said letter dated the 9th day of September.

The document attached to the said order was a proposal prepared by the Defendant in the proceedings and the Respondent in this appeal dealing with its proposals for the provision of an alternative compensating feeding ground for, in particular, birds wintering in the vicinity.

It is quite clear that the Defendant/Respondent recognise that there is an obligation on it to provide such compensating feeding grounds for these birds. It is referred to in the Environmental Inspection Report and indeed in the foreshore licence granted by the Minister.

The problem arose because of the decision by the Authority as referred to in the Environmental Inspection Report to dump the infil from the dredging

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(3)

operations which they were carrying out for the purpose of carrying out improvements and development of the port of Drogheda. A number of options had been set forth in the said report and the proposal to infil the area known as the Stagreenan Polder was the option chosen. This required a licence from the Environmental Protection Agency in accordance with the Waste Management Act, 1996 and such licence was granted to the Respondents herein.

It was, as I say, recognised that this would have an effect on the roosting and feeding grounds of wildlife, in particular the birds that are wintering in that particular area and the Plaintiff/Appellant in this case was concerned to ensure as far as she reasonably could that such compensating feeding ground would be provided. In her affidavit she says she was not satisfied with what she saw, that she made representations to the Respondent and eventually she received no satisfaction and felt obliged to issue proceedings and apply to the Court.

As I say an order was made by Mr. Justice O’Sullivan on the 10th September 1999 in which he set out the work to be done. It is quite clear that the purpose of such work was to provide a compensating feeding ground for the wintering birds concerned. The application before Mr. Justice Kelly arose because of the fact that the Plaintiff/Appellant herein was not satisfied that the work being carried out was likely to create an alternative feeding ground but

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(4)

rather was damaging the area and in effect preventing its use in the future as a feeding ground. She swore a detailed affidavit and was supported by the affidavit of Mr. Wilson. An affidavit was filed by Mr. Donnelly on behalf of the Respondent, the Port Authority, and in his affidavit he exhibited a letter from Duchas saying that the work was being carried out in accordance with the terms of the order.

When the matter came before Mr. Justice Kelly having reviewed the case and referred to the order made by Mr. Justice O’Sullivan and what he believed that the work was to be carried out by an agreement between the parties to the satisfaction of Duchas. He held that he could not go behind the view of Duchas who were in effect experts in the field, that their expertise was far greater than his or indeed any other judge and on that basis he refused to interfere with the order made by Mr. Justice O’Sullivan.

The Appellant has appealed to this Court on, in particular, the ground that the learned trial judge erred in law in failing to give due consideration to the evidence adduced by affidavit by the Plaintiff and relied in effect on the letter exhibited in the affidavit of Mr. Donnelly from Duchas in which they stated that the work was being carried out in accordance with the requirements of

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(5)

Mr. Justice O’Sullivan’s order.

The main ground of appeal by the Plaintiff is that he erred in law in this regard and that the question as to whether or not there was compliance with the order was a matter for determination by the High Court having heard all the evidence in connection with the matter. The Court is satisfied that the Appellant is entitled to succeed on this ground of appeal, that the learned trial judge erred in law in relying on the letter from Duchas particularly having regard to the averments contained in the affidavit sworn on behalf of the Plaintiff.

While the Plaintiff is entitled to succeed in this aspect of the appeal, what she claims from this Court is an order prohibiting the Defendant from carrying out and continuing the work of mechanically removing spartina on the Northshore of the Boyne Estuary SPA, whether in purported compliance of the order of Mr. Justice 0’ Sullivan or otherwise until further order of this Court and in addition she seeks an interlocutory order directing the Defendant to open the controlling sluice and take any further necessary steps to restore the tidal flow to Stagreenan Polder until the Defendant has provided compensatory feeding ground for the wintering birds until the spring of 2000 or until further order of the Court together with an order that the Defendant to pay the

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(6)

Plaintiffs costs from the High Court application. So in effect there are two reliefs sought from this Court.

In the course of his judgment Mr. Justice Kelly referred to the sensitive matters involved and it is true to say the Plaintiffs claim in this case and the Defence thereto as contained in the affidavit of Captain Donnelly that this case raises disputed issues of fact and may have serious points of law involved in the determination of it. That being so it has never been the jurisprudence of this Court that such complicated issues of fact should be decided on an interlocutory application. I know Mr. Gaffney says there are no complicated issue of fact or disputed question of fact but that is not correct. Maybe the affidavits filed on behalf of the Respondent are not as detailed as they should or could be but the Court recognises the limited time spell that was available to all parties to deal with this matter which was regarded of urgent nature but it has to be accepted that there are disputed issues of fact in this case, particularly the issue as to whether or not the work being carried out by the Defendant/ Respondents on the Northshore is effectively damaging the environment, damaging the areas potential compensating feeding ground and as to whether the work was being properly carried out. As I say the Courts are reluctant to deal with issues of this kind on an interlocutory application. Issues such as this need oral testimony as a rule when evidence is given by the parties and by witnesses on their behalf and that they can be cross examined and the judge

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(7)

then is able to make up his mind as to what evidence he accepts and to make such findings of fact that will enable him to determine the issues of law which may or may not arise on it.

In those circumstances what an applicant has to do is (1) to establish that he or she has a stateable case, (2) that the balance of convenience lies in favour of granting or withholding the order sought and (3) damages are or are not an adequate remedy. The question of damages does not arise in this case so the Court is really concerned as to whether or not the Plaintiff/Appellant has established an arguable case in favour of the claim which he has made and whether the balance of convenience lies in favour of the granting or withholding of the relief which he sought.

The Court has carefully considered the matter and is satisfied that the Plaintiff/Appellant has raised a stateable case in respect of the relief which she seeks in relation to the work being carried out by the Defendant on the Northshore and on that basis having regard to a statement made by Counsel on behalf of the Authority the balance of convenience would be in favour of granting her the relief which she seeks under that heading pending the hearing of the action.

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(8)

Mr. Gaffney on her behalf has contended very strongly that the Court should grant her the relief which she seeks with regard to an order directing the Defendant to open a controlling sluice and take away any further steps to restore the title in flow to Stagreenan Polder. The Court has carefully considered this matter and is not satisfied that the Plaintiff/Appellant has established a stateable case that she is entitled to such relief and certainly the balance of convenience would be in favour of refusing this relief and the Court at this stage refuses to make the order sought in regard to this claim. Consequently, the order which will be made in this court is that the Defendants be restrained from carrying out any excavation or other work under the Northshore pending the hearing of the action.

The Court considers that all the issues raised should be remitted to the acting President of the High Court for the allocation of a judge to deal with these matters as expeditiously as possible. The judge dealing with the matter, it will be a matter for him as to whether he hears it on affidavit or whether he will require oral evidence but the onus is on the Plaintiff/Respondent to apply to the acting President of the High Court for the allocation of a judge in the fixing of a date for the hearing of the application and it will be a matter for that judge then to give such directions as to whether the matter should be heard on affidavit or orally. The preference would appear to be orally because

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(9)

undoubtedly there will be conflict of evidence and it would be extremely difficult to resolve that conflict on the basis of affidavits. There will be an order then remitting the matter to the High Court to determine the issue and this is a fundamental issue to the parties whether the Defendants are providing an alternative compensatory feeding ground in accordance with the terms of the order of Mr. Justice O’Sullivan.

The Court will set aside the order of the High Court and discharge the order for costs against the Appellant and the Appellant is entitled to the costs of this appeal.