High Court grants injunctive relief for waste removal but directs parties to agree on a remediation timetable.

THE HIGH COURT [2025] IEHC 429 Record No. 2020/67 MCA

BETWEEN CORK COUNTY COUNCIL

APPLICANT AND

JOHN COLLINS RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 28th day of July, 2025.

INTRODUCTION

1. This is an application for injunctive relief pursuant to ss. 57 and 58 of the Waste Management Act, 1996 (as amended) (hereinafter “the 1996 Act”) by Cork County Council (hereinafter “the Council”) coming before me in June, 2025, in respect of infill material comprised of construction and demolition waste placed at a site located at Brown Island, Ballintubbrid West (near Carrigtwohill, County Cork) within the Great Island Channel Special Area of Conservation (hereinafter “SAC”) and the Cork Harbour Special Protected Area (hereinafter “SPA”) at an area known as Ballintubbrid lagoon (hereinafter “the Lands”). The said infill material was placed on the Lands as part of land reclamation works carried out by the Respondent, an equestrian farmer, as long ago as 2014.

2. On this application, the Council seeks remediation measures comprising, inter alia, the removal of the infill material placed on the Lands as part of the said land reclamation works carried out in 2014.

3. It is the Council’s case that prior to the placement of waste as infill material, the lagoon area provided drainage relief for surface water flowing from upstream areas, particularly on the high tide when surface water discharging into the estuary was prevented (by the existence of a tidal flap). As this drainage relief has now been lost, it means that water levels in the streams upgradient will increase on the high tide and will most likely result in flooding during intense rainfall events. In addition, the Council rely on the impact of a loss of wetland area on migratory water birds, most notably Wigeon.

4. The cost estimate for proposed remediation works has not been agreed but ranges between €1,000,000 and €5,000,000, which the Respondent contends is a disproportionate or excessive cost on a small landowner. Of particular concern, however, the remediation works which the Council request me to direct, are said to carry risk of adverse environmental impact for existing habitats. Habitats on site which may be adversely affected by remedial works may now be home to both otter and bat species.

5. It is the Respondent’s case that the Council’s application is focussed on the egregious nature of his original wrongdoing rather than an assessment of the relative merit of requiring remedial works which may now have an adverse environmental impact following a removal of 11 years as opposed to any ongoing harm occasioned by leaving the infill material in place. The Respondent relies on the Council’s delay as a factor which weighs against the exercise of a discretion under ss. 57 and 58 of the 1996 Act.

6. While acknowledging delay, the Council invokes the obligation of the Court, in exercise of State powers, to ensure the effective implementation of EU law. The Council contends that no real remediation proposal has been made by the Respondent to address the negative impact of loss of wetland and increase in flood risk.

BACKGROUND

7. Evidence was offered on the part of both sides in relation to the interesting history of the site.

8. Ballintubbrid lagoon or wetlands is located behind Brown Island on the north shore of a section of Cork Harbour known as the North Channel which separates lands to the south of Carrigtwohill from Great Island. It lies in an area surrounded by Ballintubbrid West, Ballintubbrid East and Brown Island. Historic maps of lands to the north and west of Brown Island show an area of open estuary which is directly connected with the North Channel.

9. In the late 1880’s, a causeway was built across the estuary linking lands to the south of Ballintubbrid House to Brown Island, with a sluice in place to allow a small stream/tidal creek to reach the estuary. Ballintubbrid lagoon formed in an area of low-lying ground behind this causeway and has such resulted from man-made intervention with the natural landscape, albeit many years ago. Accordingly, the Ballintubbrid lagoon is not natural in character - being impounded in the first place by a man-made structure in the form of a causeway fitted with tidal flaps and separating it from the greater Cork Harbour.

10. In more recent times the lagoon, a Natura 2000 site, attracted conservation interest as a mudflat or sandflat not covered by seawater at low tide or Atlantic salt meadow. The Land was considered important for wintering waterfowl, most particularly Wigeon due to its direct access to permanent standing water within 100-300 metres of field feeding areas. Included in the Great Island Channel SAC, the Cork Harbour SPA for birds and the Great Island Channel proposed Natural Heritage Area, the Land has been designated as an area of special importance for birds, habitats, flora and fauna. As such, it enjoys special protection under EU and Irish law.

11. Due to its low-lying nature and proximity to the Estuary, features which contribute to its conservation interest, the Land had obvious disadvantages for use for traditional agricultural purposes. The Respondent, an equestrian farmer, has long signalled a wish

to carry out land reclamation work thereby enhancing its utility for his farming enterprise.

12. In or about 2004, National Parks and Wildlife Service (hereinafter “NPWS”) staff visited the site on the 4th of May, 2004, on foot of a “Notifiable Activities Application”

submitted by the Respondent to the responsible Minister. The NPWS memorandum created following this site inspection (in evidence before me) included a discussion of habitats at the Lands as they were at the time. From the terms of the Memorandum, it is apparent that the objective of the site visit was to consider a proposal:

“to infill the historically eroded flooded margin of the brackish water-body to the existing post-and-wire fence limit, using imported natural, uncontaminated subsoil and topsoil, to restore grazing land”

(from NPWS Notifiable Activities Application: Memorandum, 2004).

13. In its 2004 Memorandum, the NPWS lists the SAC qualifying interests present onsite as estuaries (including surrounding terrestrial coastal habitat types) and Atlantic salt meadows with reference to habitats listed on Annex I of the Habitats Directive for which Great Island Channel is designated describing the site as .4 hectares of “low quality habitat”. Ballintubbrid lagoon was described at the time of the survey:

"as a small brackish water-body (c. 0.8 ha at maximum extent)

surrounded by improved pasture, and drained seaward by a concrete sluice door system. The water-body drains a stream flowing from the north-east, originating in an underground karst limestone catchment.

There is also a small saline stream running into the lake along a drain, with historically planted elm (Ulmus sp.) and privet (Ligustrum sp.) on the drain bank. The water-body is drained at low spring tides, exposing much of the sediment between the eroding field margin and the water-body.”

14. It was noted that the "brackish water-body is not listed as a coastal lagoon of conservation status" and the then current inventory of coastal lagoons (2011) hosted on the NPWS webpage was noted to have been reviewed to confirm that Ballintubbrid was not surveyed. It was recorded that Atlantic salt-meadow species (e.g. Puccinellia maritima, Glaux maritima, Plantago maritima, Juncus gerardi, Eleocharis sp.) were identified as occurring at the grazed margin of the water body, in small, scattered patches with the largest patch occurring to the west of the inflow of the small brackish stream.

15. The record shows that approval was granted by the NPWS by letter dated the 3rd of September, 2004, for the works proposed at that time on the basis that the risk of significant adverse effects on the SAC were low, if the works were carried out under the following conditions:

i. The source of topsoil and subsoil was natural, and not rubble, not contaminated, and not compacted;

ii. The works were carried out in a phased manner according to the availability of material, the weather and soil conditions, and allowing sufficient time for seed establishment to prevent winter wave erosion. Each phase to consist of a cell, the first cell beginning at the seaward side of the area, and subsequently working westward;

iii. Infilling the area to the west of the inflow of the small saline stream is the subject of a separate application for Notifiable Activities, when the eastern section is restored;

iv. Haulage of material onto the site does not result in subsequent siltation from truck or tractor tracks further up the field into the water-body;

v. The outer margin of the restored, infilled area does not go beyond the current post-and-wire fence;

vi. More stony subsoil to be used for the outer margin of the infilled cell, and this to be placed before the material infilling the interior of the cell;

vii. Any work on the site does not occur during 1st pf October to 30th of April, inclusive, to reduce disturbance to feeding birds;

viii. No herbicide to be used on the reseeded sward;

ix. All other pollution control requirements and discharge licence requirements (if necessary) are met noting that it was an offence under the Water Pollution Acts, 1977 to 1990, to cause polluting matter to enter surface waters;

x. The extraction of subsoil and topsoil from the source site(s) did not, inter alia, result in adverse effects on the natural environment or give rise to water pollution.

16. The Respondent was also alerted to the fact that the proposed reclamation works might require a licence or consent from another statutory authority, for example, the local planning authority. It appears that some reclamation work was done by the Respondent in reliance on the authority of this letter.

17. Subsequently, however, in 2009, an application was made by the Respondent seeking a declaration that further proposed reclamation of the land for equestrian use was exempt development. The Council concluded the reclamation works in question were not exempt and so informed the Respondent. In consequence, it was clearly signalled by the Council that further land reclamation through infill on site required planning permission. There was no appeal against this finding.

18. It subsequently came to the Council's attention that despite the refusal of the declaration under s. 5, the Respondent had proceeded with his proposed reclamation works, using what appeared to be construction and demolition wastes. It is unclear when precisely the Council became aware of these works. A reference is made to 2012 in written submissions, and it is deposed on affidavit on behalf of the Council that the Waste Enforcement Section of the Council received reports of works ongoing on a site at Brown Island, Ballintubbrid West, Carrigtwohill in late 2012. It appears that a joint inspection was carried out by a waste enforcement officer and the Area Planner was th arranged on the 11 of March, 2013. As a result of this inspection a planning enforcement notice dated 30th of May, 2013, was served on the Respondent relating to unauthorized land reclamation.

19. On foot of third-party complaint, a further site inspection was carried out by two

authorised officers on the 24th of January, 2014. They reported that there were large amounts of construction and demolition wastes spread across the site, including, but not limited to, soil and stone, bricks, ceramics, concrete, plastics and metal wastes. The authorised officers reported that they had formed the opinion that there was a risk of environmental pollution from the activity on site.

20. On the evidence it appears that by 2014, works of an extent and nature which substantially exceeded that which had been permitted by the NPWS in 2004 had occurred. In January, 2014, the Council issued a notice under s. 55 of the 1996 Act to cease the acceptance of waste and to produce a report, using European Waste Catalogue codes (hereinafter “EWC codes”), indicating the amount of each waste type(s) on the site. Indeed, in all, the Council issued three Notices under s. 55 of the 1996 Act in 2014 directing the Respondent to stop depositing waste and to carry out certain works, which, inter alia, included providing details of the types and quantities of waste that had been deposited.

21. A brief report was prepared on behalf of the Respondent by Mescal & Associates, Consulting Engineers, in February, 2014, in response to the Notice pursuant to s. 55.

This report confirmed the waste comprised construction and demolition waste that had recently been deposited on the lands at that time. The report stated some of the waste was typical of Waste Code 17-Construction and Demolition Waste, the bulk of which comprised soils, stones and dredging spoil with an amount also in concrete, bricks, tiles and ceramics. It was confirmed that there was also a smaller amount of bituminous mixtures, coal tars and tarred products, some of which may be hazardous waste. The information in the report did not meet the Council's requirements and further details on the waste types and volumes were requested.

22. A meeting was convened by the Council with the Respondent on the 10th of February, 2014. This led to an inspection of the site on the 9th of April, 2014. During this inspection it was confirmed that the works that had been carried out by the Respondent had greatly exceeded the area and works the subject of the letter dated the 3rd of September, 2004 from the NPWS. A second ‘section 55 notice’ was served on the Respondent on the 24th of April, 2014.

23. A subsequent letter report from Mescal & Associates, which included trial pit logs and some photographs, issued in June, 2014. Again, the information in the report did not meet the Council's requirements and further details on the waste types and volumes were requested. By letter dated the 23rd of June, 2014, a further report was received stating that there was 14,439m3 of Waste Classification 17-05-04 (Soil and Stone) and unmeasured volumes of concrete, bricks, tiles, ceramics and glass present on the site.

There was also a smaller amount of subchapter 17.03 (bituminous mixtures, coal tars and tarred products). The report also stated that the waste belonging to EWC 17 03 “has likely mirror and possibly ‘absolute’ hazardous waste.”

24. Alerted to the presence of machinery on site, on the 18th of July, 2014, agents of the Council attended again on site to observe excavators, tractors and trailers on site for the purpose of moving material within the bounds of the site at Brown Island. During these inspections, it was noted that the lagoon had been reduced considerably in width, from material being filled into its southern margin and also that a quantity of lagoon material had been excavated and placed on the surface of the field. On that date, Council officials also met in person with the Respondent’s father at the adjacent stable yard alerting him to consequences of non-compliance with the notice issued under s. 55 of the 1996 Act. He confirmed that a horse track was being constructed.

25. A further notice under s. 55 of the 1996 Act was served requiring the taking of measures to remedy the effects of the activity on the site. This was sent by registered letter to the Respondent as landowner and was received on the 23rd of July, 2014. The Notice required the preparation of a plan for reinstatement of the site to its pre-works configuration, in accordance with data from the National Parks and Wildlife Service, and to submit this plan to the Council’s Environment Directorate for amendment or approval, within 30 days of receipt of the Notice under s. 55 of the 1996 Act.

Furthermore, the requirement under the previous Notice for cessation of works without prior written approval from Cork County Council Environment Directorate remained in force.

26. Despite this, on the 25th of July 2014, the Council became aware that there were machines working on site at Brown Island, in particular, a bulldozer levelling the area in question, assisted by an excavator loading a tractor and tipper trailer to place material. Persons operating the machinery were observed to leave by a different route as Council staff entered the site. It was apparent that further works had been carried out on the site since the inspection the previous week.

27. On the 31st of July 2014, Cork County Council Environment Directorate received observations to the most recent s. 55 Notice from Mescal & Associates dated the 30th of July, 2014. These observations did not address any of the measures required by the Council but instead presented a history of works carried out on site and the justifications for these works, ignoring the fact that none of the work was authorized but was in fact of various notices and directions given.

28. During a site visit on the 12th of August, 2014, it was again noted that large amounts of material had been brought onto the site, that rock armour had been placed to protect the fill material, a pump was pumping water over the causeway and there was an excavator and dozer on the site. Having formed the view that the waste on site was being handled in such a manner as to constitute a risk of environmental pollution, a direction issued under s.14 of the 1996 Act, to cease works on site. Mr. Mescal, as representative on site of the Respondent, was advised that if the works continued, the Council could seek an order in the High Court to stop the works.

29. The Respondent and his engineer, Mr. Mescal, attended a meeting with the Council on the 22nd of August 2014. A one-week extension to complete a reinstatement plan, as required in the Measures attached the s. 55 notice was agreed. Various representations were made on behalf of the Respondent about erosion protection and allegations of misfeasance by the Council in allowing this erosion of lands to take place were made.

30. On the 28th of August, 2014, a submission in response to the most recent s. 55 notice was received by the Council from Mescal and Associates, on behalf of the Respondent.

This response did not appear to address any of the measures contained in the s. 55 Notice but appeared to be a plan of the proposed future layout of the site, rather than its pre-works condition.

31. On the 29th of August, 2014, the Council both attended on site and wrote to the Respondent to inform him that the submission received did not comply with the requirements of the schedule of measures contained in the section 55 Notice, namely Item I:

"Prepare a remediation and reinstatement plan for the area detailed on the attached maps. This plan is to describe and detail works required to remove all waste materials from site, and to reinstate the lands to their original condition, as per the information contained in the National Parks and Wildlife Service datasets relevant to Special Area of Conservation 001058- Great Island Channel, and proposed Natural Heritage Area 001058- Great Island Channel."

32. The Respondent was informed in this correspondence that s. 55 of the 1996 Act (as amended) provided that the power of a local authority to require measures to be taken in relation to the holding, recovery or disposal of waste and also provides at s. 55(8) of the 1996 Act that a person who failed to comply with a notice under this section would be guilty of an offence.

33. A further site inspection took place on the 5th of September, 2014, in the presence of Atkins Ecology, Ecological Consultants, commissioned by the Council to conduct a site visit to examine whether the infilling of Ballintubbrid lagoon could be resulting in significant ecological impacts on the qualifying interests of relevant Natura 2000 sites. On that date, tractors and trailers were observed bringing rock armour onto the site. The Respondent advised that this was being used for works on the estuary side of the land.

34. During an inspection on the 9th of September , 2014, Agents of the Council again attended on site, this time in the company of O'Callaghan Moran & Associates, Environmental Consultants (hereinafter “OCM”) who had been retained to assess the hydrological implications of the works carried out and to develop a remediation plan for the site. It was observed that contrary to representations made on the 5th of September, 2014, rock armour had been placed along the estuarine channel. In their subsequent report OCM observed that, except for a narrow channel along the northern margins of the waste/fill deposition area where large boulders have been placed, the entire lagoon had been in-filled with what appeared to be construction and demolition waste, comprising soil stone, brick, metal wire and plastic.

35. On the 15th of September, 2014, agents of the Council returned to site and noted the presence of a bulldozer and excavator working on the site levelling out topsoil. On this inspection, interference with drainage patterns on site were observed.

36. OCM conducted a second inspection on the 24th of September, 2014, by which time the waste had been covered with topsoil.

37. Thereafter, criminal proceedings were initiated by the Director of Public Prosecutions (hereinafter “the DPP”). Despite the initiation of criminal proceedings by the DPP, there was no engagement between the Council and the Respondent in relation to site remediation.

38. The Respondent was prosecuted on indictment on three counts for offences contrary to ss. 32(1)(b) and 32(6), 39(1) and (9), and 55(1)(a) and (8) of the 1996 Act. The indictment alleged:

“That you, the said Accused, of Ballintubbrid West, Carrigtwohill in the County of Cork on the 3rd day of June, 2014 at Brown Island, Ballintubbrid West, Carrigtwohill in the County of Cork within the Court area and District aforesaid, did hold and/or dispose of waste in a manner that caused or was likely to cause environmental pollution, contrary to section 32(1)(b) and (6) of the Waste Management Act, 1996 as substituted and inserted by Regulation 16(a) of the European Communities (Waste Directive) Regulations, 2011.

That you, the said Accused, of Ballintubbrid West, Carrigtwohill in the County of Coric on the 3rd day of June, 2014 at Brown Island, Ballintubbrid West,

Carrigtwohill in the County of Cork within the Court area and District aforesaid, did dispose of waste at a facility after the prescribed date otherwise than in accordance with a Waste Licence within the meaning of Part V of the Waste Management Act, 1996 then in force and relating to the carrying on of the activity at that facility, and in particular in circumstances whereby there was no waste licence in force at all relating to the said facility, contrary to section 39(1)

and (9) of the Waste Management Act, 1996 as amended by Regulation 19(a) of the European Communities (Waste Directive) Regulations, 2011.

That you, the said Accused, of Ballintubbrid West, Carrigtwohill in the County of Cork on dates unknown but subsequent to the 22"" day of July, 2014 at Brown Island, Ballintubbrid West, Carrigtwohill in the County of Cork within the Court area and District aforesaid, did fail to comply with a Notice issued by Cork County Council pursuant to the provisions of section

55 of the Waste Management Act 1996 within the time allowed by law for complying with same contrary to section 55(l)(a) and (8) of the Waste Pollution Act, 1996.”

39. The case finally came before Cork Circuit Criminal Court on the 30th of October, 2019.

The Respondent pleaded guilty to the offence of holding and/or disposing of waste in a manner that caused or was likely to cause environmental pollution contrary to section 32(1)(b) and (6) of the Waste Management Act, 1996 as substituted and inserted by Regulation 16(a) of the European Communities (Waste Directive) Regulations, 2011 on a full facts basis on the 4th of November, 2019. The case was adjourned to the 6th of February, 2020, for sentencing and was further adjourned for sentencing to the 27th of February, 2020. A €50,000 fine was then imposed by Cork Circuit Court on foot of the conviction on a guilty plea to holding and/or disposing of waste at the Lands in a manner which caused or was likely to cause environmental pollution and the imposition of a €50,000 fine. This fine has been paid.

40. In the intervening time and following the initiation of prosecution proceedings, no further action was taken by the Council over the course of several years. This was so notwithstanding the contents of Circular WP07/17 (emanating from the Department of

Communications, Climate Action and Environment by letter dated the 8th of November, 2017) which informed local authorities of the National Waste Enforcement Priorities for 2018 following a meeting of the National Waste Enforcement Steering Committee.

The Circular clearly identified action in relation to illegal dumping including construction and demolition waste and unauthorised sites of concern as a stated national enforcement priority. The Circular also made expressly clear that the issue of unauthorised sites required a multi-agency response. It was confirmed that these national waste priorities would be the focus of the Waste Enforcement Regional Lead Authorities’ (WERLA) work in 2018. For whatever reason the requirement for an interagency approach appears to have been largely ignored in this case insofar as it concerned using civil as well as criminal remedies.

41. On the same date as sentence was handed down, the within application was brought.

These proceedings were first listed in the High Court on the 16th of March, 2020. By that date, service had not yet been effected. Proceedings were adjourned to the 11th of May, 2020 and thereafter adjourned generally as a result of the Covid-19 Pandemic.

Application to re-enter the proceedings was only made in the summer of 2024.

42. The Lands were the subject of fresh inspection in May, 2024. On that date it was noted that the infilled area was then covered with grass, had been fenced off and was partly laid out as a running track for horses. Photographic evidence available to me shows the running track in a grassy field giving the appearance of a well-tended area. However, a new deposition of discarded stone and soil was noted on site on the date of this fresh inspection. Again, directions issued under s. 14 of the 1996 Act requiring waste remediation measures to be carried out. On this occasion, the direction was complied and more recent deposition of discarded stone and soil, not yet infilled, were removed without the necessity for further action on the part of the Council.

43. Notwithstanding that it commenced planning enforcement against the Respondent in 2013 and waste enforcement in 2014, serving repeat notices pursuant to s. 55 of the 1996 Act during the course of 2014, it is striking and a matter of some obvious and serious concern, warranting repetition, that the Council did not bring this application until after the conclusion of criminal proceedings initiated by the Director of Public Prosecutions under ss. 32(1)(b), 32(6), 39(1) and (9) and 55(1)(a) and (8) of the 1996

Act. This type of delay suggests an unacceptable level of official tolerance for continuing breaches of the environmental protection code, including the requirements of EU law.

44. Despite the extraordinary delay in the commencement of proceedings of some six years from the service of enforcement notices under the 2014 Act, the application for statutory injunctive relief was then permitted to remain in abeyance following an adjournment due to Covid-19 in or about May, 2020, for a period of some further four years. The application was only reactivated by the Council in June, 2024, at which stage the Council successfully resisted arguments against re-entry made on behalf of the Respondent arising from delay.

45. Against this sorry background the matter now comes before me.

PROCEEDINGS

46. By Notice of Motion dated the 27th of February, 2020, the Council applied for orders pursuant to ss. 57 and 58 of the 1996 Act variously requiring the Respondent to carry out the specified measures on the lands at Brown Island, Ballintubbrid East, Carrigtwohill, County Cork set out in the Affidavit of Seán Moran sworn on the 10th of February, 2020 and/or in the report from OCM entitled “Remediation Plan Unauthorised Reclamation Site Brown Island, Ballintubbrid East Carrigtwohill, County Cork” dated October, 2018, including, more specifically, to remove the waste, to discontinue holding the waste, to restore the lands and to mitigate or remedy any effects of the said holding, recovering or disposing of waste by taking measures specified in the said Affidavit and Report in relation to removal and restoration.

47. The application was grounded on affidavits sworn by Mr. Nicholas Bond, Engineer and Head of Waste Management Enforcement with the Council, Mr. George Salter, Engineer and authorised officer under s. 14 of the 1996 Act, Mr. Seán Moran, Joint Managing Director of OCM , Environmental Consultants, Mr. Cyril Saich, District Conservation Officer with the NPWS, Dr. Jervis Good, Regional Ecologist with NPWS,

Mr. Tom Coakley, Aerial Photographer, and the exhibits referred to therein, all sworn in February, 2020 and supplemented by further affidavits sworn in 2024 and 2025, including affidavits from Mr. Paul O’Donoghue, Ecologist, sworn in December, 2024 and March, 2025 and replying Affidavits delivered during the course of the hearing dated 5th of June, 2025.

48. In summary, the Council's concerns as deposed to in grounding this application relate to the fact that with the exception of a narrow channel along the northern margins of the waste/fill deposition area where large boulders have been placed, the entire lagoon has been in-filled with (soil and stone waste) then covered with topsoil and grassed. It is the Council’s case that in total, approximately 31,650m3 of waste has been deposited which, according to surveys carried out on behalf of the Council as deposed to on affidavit comprises about 480m3 of material where material was excavated from the existing ground, a fill of 31,650 m3 of material thus a net fill amount of 31,170 m.3

49. All of this, occurring without necessary consents or permits, has resulted in interference with the lagoon habitat and the Council maintain that the loss of flood relief capacity due to the placement of the waste on the subject lands has substantially increased the risk of flooding upstream of the area. It is maintained that the infilling has also increased the risk of groundwater flooding in the lands upstream of the lagoon.

50. It is not disputed on this application that the reclamation works in question, carried out without necessary planning permission or licence under the 1996 Act or Appropriate Assessment (A.A.) pursuant to Article 6 of the Habitats Directive 92/43/EEC, involved the infill of predominantly construction and demolition waste at an area of wetland or lagoon in the candidate SAC and SPA thereby raising the elevation of the land in question, a site of some .53 hectares (1.3 acres). The purpose of the work was to reduce flooding and excess water on the land intended for equestrian use (and upon which an area intended for horse gallops is now located). It is undeniable and beyond contest that the effect of this work was to remove an area of open water or wetland habitat which had previously contributed to the maintenance, inter alia, of populations of migratory water birds.

51. Affidavits in reply were sworn by the Respondent and by Ms. Emma Devereux, Ecologist sworn on the 19th of February, 2025 and Mr. Stephen M. Boyle, Consulting Engineer sworn on the 4th of June, 2025 (after the commencement of the hearing). The thrust of the expert evidence filed to resist the application seeks to establish no heightened flood risk and demonstrate risks to the existing habitat occasioned by carrying out the remediation measures sought on this application.

EVIDENCE

52. In moving this application, the Council relied on three reports, namely:

i. OCM Hydrological Assessment (October, 2014);

ii. Atkins Briefing Note on Site Visit to Brown Island (October, 2014);

iii. OCM Remediation Plan (October, 2018).

53. It was stressed on affidavit and in argument before me that the infilling which subsequently occurred far exceeded that which had been permitted by the NPWS in 2004. This was confirmed by Mr. Good, the NPWS regional ecologist who had carried out a screening for A.A. in 2004 on foot of the Respondent’s original application for Ministerial consent for reclamation by infilling. He stressed the limits of what had been permitted under the conditions attaching to the Ministerial consent highlighting that it had been an express condition that any further infilling of area to the west of the inflow of the small saline stream would require a separate application for consent to a notifiable activity. No such application was ever made despite subsequent infilling and reclamation which Mr. Good confirms to be substantially beyond the area for which Ministerial consent had been given in 2004 both north of the post and wire fence and west of the inflow of the saline stream.

54. An ordnance survey of the site was undertaken for OCM in September, 2014 and was reported on in its subsequent report. The survey involved mapping the extent of waste infilling that has occurred on site since a declaration of exempted development was applied for under s. 5 of the Planning and Development Act, 2000. It was estimated

that some 31,650 m3 of waste was filled into the lagoon area and the net infill volume or loss of void space was 31,170m3. At the time of survey only a small channel has been left to the north of the infill area to allow water to drain from hydraulic up gradient land areas via the tidal flap into the estuary.

55. The OCM Hydrology Assessment concluded that prior to the infilling, the lagoon and the lands immediately upstream were already at risk of flooding in extreme rainfall events. The loss of flood relief capacity due to the placement of the waste/fill in this area was considered to substantially increase the risk of flooding upstream of the area.

It added that there was evidence that this had already occurred. The infilling was also reported to have increased the risk of groundwater flooding in the lands upstream of the lagoon.

56. OCM recommended that, to mitigate the flood risk, all of the deposited materials should be removed and lands restored to their previous condition. It was recommended that the materials, all of which, with the exception of the topsoil, would be classified as waste, should be sent to an appropriately authorised waste management facility.

57. Photographs taken on the 15th of October, 2014, contained in the OCM Hydrology Assessment, showed flooding of the stream to the north of the fill area after heavy rainfall. It was concluded by OCM that this flooding was most likely caused because of the loss of the flood relief area in the lagoon. Flood risk maps also prepared at that time showed that the lagoon area and the stream sections upstream of the fill area were at risk of flooding in extreme rainfall events (100-year return period storm and extreme rainfall events) prior to the waste being placed. It was considered likely that because of the loss of flood relief that the extent of flooding would increase upstream during a 1 in 100 return period storm event or extreme rainfall event. The channel width of the stream which discharges via the tidal flap had been reduced by approximately 92%.

It was posited that this restriction of the channel width would result in water backing up, upstream of the fill area. Furthermore, because of the weight of the waste and boulders along the edge of the waste, the underlying estuarine muds were said to have been squeezed from under the waste into the stream channel, reducing still more the available space for surface water to drain from upstream areas.

58. OCM also reported observing cracks along the infilled ground surface approximately lm from the edge of the stream channel. These cracks were described as occurring as the ground settles because of the estuarine muds being squeezed out into the stream channel. It was suggested that it was possible that over time the southern bank of the stream channel where the waste was placed would collapse into the stream which would also further restrict stream flow to the estuary. The OCM Hydrology Assessment and evidence to the Court is supported by significant photographic evidence showing precisely in visual form much of what is described in the narrative of the Report.

59. OCM reported that the spring from which the stream originated was a discharge point for groundwater from areas up hydraulic gradient of the site. The topographic catchment area for the springs was said to be approximately 3.26km2. The groundwater catchment area was considered to be potentially much larger because the springs originate from the karst limestone bedrock. It was opined that the loss of flood relief at the outfall point from the catchment (lagoon area) might significantly increase the risk of flooding upstream in the catchment. This was because the flow was restricted giving rise to the potential for flooding to occur between the spring source and the fill area. It was noted that the lands were low lying agricultural lands and a groundwater flood event could significantly impact on the use of the lands. It was observed that in the winter period in particular groundwater flow rates from the springs in this karst environment can be very high and because of the nature of the karst bedrock very large flow volumes can occur quickly at any time of the year.

60. Despite these detailed findings in 2014, little updated information has been provided in evidence on behalf of the Council in relation to flood patterns since 2014. There has been no quantification or assessment of the actual impact as opposed to the anticipated possible impacts predicted in the 2014, over the intervening 11-year period. It should be noted, however, that in a supplemental affidavit sworn in March, 2025, Mr. Moran of OCM addressed flood risk further with reference to Office of Public Works CFRAMs Maps which he exhibited. Based on the modelling exercise conducted it appears that there is a high probability of coastal flood events occurring in the area, extending beyond the Respondent’s lands. The extent to which this flood risk has been exacerbated by the reclamation works done is not, however, measured or quantified.

61. For its part, in their October 2014 Report, Atkins Ecology concluded that the infilling of the lagoon area had resulted in a loss of a large area of wetland habitat within the boundaries of both the SAC and SPA (Natura 2000 sites). They also concluded that had a Stage 1 Appropriate Assessment (A.A.) Risk screening been carried out that the proposed infilling would not have been screened out i.e. the activity should not have proceeded without full A.A. and permission on foot of same.

62. Atkins Ecology separately observed the presence of Japanese Knotweed on site growing on top of infill material and only recently sprouted. They pointed out that Japanese Knotweed is listed as an invasive species under the Third Schedule. Part 1:

Plants on the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. 477 of 2011) which means it is a non-native species subject to restriction under Regulations 49 and 50.

63. The Atkins Ecology Report placed emphasis on the position of Wigeon. Wigeon were noted as recorded in significant numbers from Ballintubbrid. The Atkins Ecology Report considered that Wigeon may have favoured the site due to the close association of feeding grounds (grassland) and a safe refuge (the lagoon) to which to retreat if disturbed. It posited that if the loss of the lagoon were to result in abandonment of the Lands by Wigeon then a significant proportion of the Cork Harbour population could be negatively affected (i.e. 5-year mean from 2007/2008 to 2011/2012 was 434 & 1,106; from Ballintubbrid and Cork Harbour as a whole, respectively). Thus, the concern expressed by Atkins Ecology in their 2014 report was that Wigeon could experience a significant loss of range within the SPA due to the infilling and this in turn might also result in a reduction in Wigeon numbers using Cork Harbour SPA. If this were to occur, the Atkins Ecology Report posited that this would be a significant negative impact on a qualifying interest of Cork Harbour SPA. It added that this was a pattern which could also be repeated for other species which use the Lands. The Atkins Ecology Report went on to observe as follows:

“Monitoring data would be required to establish exactly how these species respond to the loss of the lagoon; it is not clear for example how the site will change hydrologically and whether flooding may occur elsewhere to which these birds might relocate; but it is probable that its loss could result in the displacement of such species from the environs of Ballintubbrid.”

64. The Atkins Ecology Report provided to the Council in 2014 noted:

“The infilling of the lagoon at Ballintubbrid is therefore likely to have a significant impact on usage of this site by wintering Wigeon. It is not clear to what extent birds could disperse away from Ballintubbrid lagoon and if so whether there is capacity for displaced birds elsewhere in Cork Harbour. On balance, however, a significant negative impact on Wigeon at Ballintubbrid is highly probable.”

65. The Atkins Ecology Report concluded:

“The primary habitat loss is of coastal lagoon (CW1) which is not a conservation objective of Great Island Channel SAC. It is understood that small areas of fringing saltmarsh existed around the lagoon (NPWS, 2004). However, as the site was not surveyed prior to works, it is not known how much was removed; nor is it known whether such areas were equivalent to Atlantic saltmarsh (1330); Atlantic saltmarsh is a conservation objective of the SAC.

With respect to the impact on birds for which the SPA was designated, Wigeon provide valuable insight. Wigeon could experience a significant loss of range within the SPA due to the infilling; this in turn might also result in a reduction in Wigeon numbers using Cork Harbour SPA. If this were to occur, this would be a significant negative impact on a qualifying interest of Cork Harbour SPA;

a pattern which could also be repeated for other species which use the site.”

66. Although the author of the Atkins Ecology Report (Mr. O’Donoghue) swore an affidavit in these proceedings in December, 2024 and again in March, 2025, he did so without providing any real additional direct evidence in relation to the ecological impacts observed over the course of 11 years since he prepared the report, despite his previous observation that the precise impact was not clear in circumstances where he had acknowledged at least some possibility that the birds could disperse elsewhere in Cork Harbour. Some evidence in this regard is provided, however, in the affidavit evidence of Mr. Good, Ecologist with the NPWS. He has referred on affidavit in support of the Council’s application to evidence of decline in numbers of Wigeon post 2011 stating that in his professional opinion:

“this decline in Wigeon numbers is coincidental with the infilling works at the lagoon carried out by the Respondent.”

67. While it was considered likely that the loss of lagoon would impact negatively on Wigeon on the Lands, the extent to which the loss of lagoon attributable to infill works is causative of a decline in Wigeon number in the area generally therefore remains uncertain. The real data, however, paints a stark picture with a decline in numbers at the Ballintubbrid subsite to the Cork Harbour SPA reducing from 1,051 in 1994/1995 to 125 in 2021/2022, the lowest in twenty-seven years of data exhibited. It should be observed that the sharpest decline recorded occurred in 1995/1996, before any infill works occurred on the Lands, but the downward trend has continued since then descending to the very low population count recorded in 2021/2022 (the last count figures available to me).

68. In the third and final report presented on behalf of the Council (the OCM Remediation Plan, 2018), OCM outlined a remediation plan for the site. It was recommended that, to mitigate the flood risk, all of the deposited materials should be removed and the Lands restored to their previous condition.

69. Referring first to the previous reports prepared in 2014, the later OCM Remediation Plan envisaged works in two stages, namely, “Preparatory Works” and “Main Works”.

70. Preparatory works were described as entailing, inter alia, baseline monitoring to include surface water quality monitoring by the contractor focussing on suspended solids releases; the appointment of an experienced earthworks contractor; preparation of a proposed programme of works to be submitted to the Council for approval before main works begin; provision in relation to plant refuelling; provision for site security during works; haulage routes; waste collection permits of hauliers to be used and waste permits/licences of facilities to which material will be consigned; supervised removal of Japanese Knotweed and specialist disposal.

71. Some of the matters addressed under the heading “Preparatory Works” appear to me to relate to the longer term including the need for ecological monitoring to establish the effectiveness of the remedial works programme on completion.

72. In relation to “Main Works”, the remedial measures outlined specified that the excavation of the waste should be supervised by a suitably qualified and experienced scientist or engineer (Site Supervisor) approved by the Council, who would ensure that all of the waste is removed, that there would be minimal disturbance of the natural ground and that the works would not damage the qualifying interests for which the Natura 2000 Site was selected.

73. It was envisaged that the site supervisor would liaise with the Council and arrange for weekly progress meetings with the Council. It was further envisaged that an ecologist would also be appointed by the landowner to review the works programme and assess progress during the restoration programme. In relation to waste removal, it was specified that prior to the commencement of any works a silt curtain should be placed in the stream along the northern boundary of the fill deposition area, immediately downstream of where the infill will be excavated for placement to be identified by the Site Supervisor. It was specified that the topsoil should be removed and stockpiled to the south of and away from the infill area to prevent silt laden run-off to the estuary. It was further specified that the waste/fill should be removed in small sections/phases of circa 20m moving from west to east along the lagoon, starting at the northern end with the removal of boulders and then the infill, moving southerly to the natural ground. It was added that the boulders may have potential for use as sea defence to the south if, subject to assessment, this receives statutory approval; however, their final disposal to be agreed with the Council.

74. Under the proposals contained in the OCM Remediation Plan, it was envisaged that the silt curtain would be moved downstream of each phase by the contractor prior to excavation of the next phase and during the works the stream channel should be regularly inspected by the contractor to ensure that excessive siltation is not occurring.

The excavated waste/fill should only be stockpiled long enough to allow for direct removal off site to an authorised waste management facility approved in advance by the Council.

75. It was further specified that the original dockets from the waste management facilities to which the excavate materials were to be sent and which record the type and weight of the materials should be retained and provided to the Council on request.

76. By way of remediation, it was proposed that the waste should be completely removed down to the natural estuarine mud. It was noted that the weight of the waste had compacted the mud and squeezed it out along the north margins of the lagoon into the remaining channel area but it was considered likely that over time the mud would redistribute evenly across the lagoon as a result of both fluvial and tidal water movement in the lagoon. It was noted that the works programme would require inspection and approval by both the Council and NPWS before it will be signed off as complete.

77. By way of very belated response to this application grounded on the OCM and Atkins Reports and Plan, the Respondent finally engaged an ecologist (Ms. Devereux of EcoFoodOev) who prepared a report dated 14th of February, 2025. In its introductory comments the EcoFoodOev Report signalled that it assessed the potential ecological effects of the proposed remedial works at Brown Island, County Cork, specifically the removal of fill material, on the site's habitats and species. From the terms of the Report itself, however, it is noteworthy that it did so without referring to the OCM Remediation Plan and the methodology set out in that Plan. A query raised on affidavit as to whether Ms. Devereux had sight of the OCM Remediation Report before preparing her own report was left unanswered.

78. The EcoFoodOev Report stated that it provided:

“a detailed ecological description of the area, focusing on habitats, flora, and fauna, and evaluates the potential impacts of fill removal on these ecological receptors”.

79. While the EcoFoodOev Report addressed risks associated with the removal of fill, it was silent as to the risk or impact of leaving the fill in situ. The EcoFoodOev Report identifies bird species of conservation concern presented for the 2km grid square of the site and non-volant mammals within a 5km radius (including otter or lutra lutra, Irish hare and pine marten). It is further noted that there are several species of bat recorded within 5km of the site. The author described as “most notable findings” the existence of potential otter slides along the waterbodies now present on site, noting that otters are a protected species under Annex II of the Habitats Directive. It was reported that the site exhibited significant bird activity, particularly within the open grassland, lagoon waterbody, and adjacent wetland areas which she said reinforced its importance as a foraging and stopover site for wintering and migratory species. Sightings included Eurasian Oystercatcher (Haematopus ostralegus) grazing in the fields, Wigeon (Mareca penelope) on the waterbody near the lagoon, and additional grey wetland birds resembling Grey Plover (Pluvia/Js squatarola), and potentially (fleeting observation)

Curlew (Numenius arquata).

80. In addressing the potential impact of the proposed works to remove fill on designated sites, Ms. Devereux stated:

“The removal of an estimated 4,000 to 20,000+ cubic meters of fill from the reclaimed lagoon would have significant implications for designated sites within the Zone of Influence (ZOI). Given the direct hydrological connectivity between the site and the Great Island Channel SAC (001058) and Cork Harbour SPA (004030), these areas are at the greatest risk of impact. The primary concerns relate to sediment release, habitat disturbance hydrological disruption, and biodiversity displacement.”

81. Potential impacts of removal of infill were also identified as including disturbance to foraging and roosting birds who actively use the reclaimed field for grazing. If the fill is removed, this habitat would be lost, reducing available foraging and roosting areas with risk of sediment impact on feeding grounds. Furthermore, the removal of infill was identified as presenting a risk of spread of invasive alien plant species.

82. In the light of risk of habitat destruction through excavation, Ms. Devereux recommended enhancement measures directed towards retention and enhancement of wetland function while supporting habitat connectivity for birds, otters and aquatic species which she considered has the advantage that it avoids destruction of an already adapted ecosystem, preventing the displacement of SPA birds.

83. In her conclusions, Ms. Devereux stated:

“Ironically, considering how the land was reclaimed from the lagoon, removal of fill now, after 11 years, would likely contravene the EU Habitats & Birds Directives, given the SPA species and Annex II otter populations present.

Enhancement measures provide an alternative that aligns with conservation laws while maintaining site ecological function. Removal of fill would potentially result in habitat loss, species displacement, increased sedimentation, and invasive species spread.

Enhancement strategies provide a viable, lower-impact alternative by improving wetland function, restoring riverbank stability, eradicating invasives, and engaging research institutions.....

Regardless of the chosen course of action, any future works will require an Appropriate Assessment (AA), consultation with the EPA and NPWS, and the development of robust Invasive Species Management and Habitat Management Plans. All works should be overseen by an Ecological Clerk of Works (ECoW) to ensure compliance with legal, scientific, and conservation standards.”

84. In response to ecological concerns raised on behalf of the Respondent in connection with conducting the remedial works sought by the Council, Mr. O’Donoghue (author of Atkins Report dating to 2014) pointed out on Affidavit that any such works would be subject to AA screening which would likely go to Stage 2 and require preparation of a Natura Impact Statement (hereinafter “NIS”), within which detailed mitigation measures and environmental protection measures would be set out to address issues such as excessive silt release from excavation works, avoidance of birds and disturbance, control of invasive species etc.

85. While not providing any quantitative data himself, Mr. O’Donoghue of Atkins Ecology criticizes Ms. Devereux of EcoFoodOev on behalf of the Respondent for not presenting data on birds using the site with which one could consider the numbers on site and how these relate to historical numbers using the site, stating that this is “a major lacuna” in her report.

86. There is very little engagement with Ms. Devereux’s evidence on behalf of the Council, beyond what is contained in the Affidavits sworn by Mr. Good in this regard. As already noted, Mr. Good, a senior and experienced ecologist with the NPWS, provides some data which shows a decline in Wigeon, Lapwing and Little Grebe numbers starting in 2011-2012 (and therefore pre-dating the infill works which prompt this application)

which has not been arrested or reversed. In an NPWS Report prepared in 2014 and exhibited by Mr. Good, reference is made to peak counts for Wigeon in the late 1990s and early 2000s noting that numbers had since declined and numbers had been in decline nationally since the mid-1990s. Specific reference was made to the subsite at Ballintubbrid, described as favoured by Wigeon, which had seen peak numbers during the early 2000s at nearly twice the level recorded in “recent seasons”. It was noted that season peaks were particularly low in the final two seasons then recorded in 2011/12 and 2012/13.

87. In a more recent report on the Cork SPA dating to April, 2020, it is further noted that several lagoons occur around Cork Habour. The report recorded that the lagoon at Ballintubrid was “also formerly an important area but this habitat has been infilled in

recent years.” It was further noted that several of the waterbird SCIs of the Cork Harbour SPA make significant use of fields around the harbour as foraging habitats and reference is made in this regard to the Ballintubbrid fields in the North Channel and fields which were “immediately adjacent to tidal habitats/lagoons”. It was noted:

“Wigeon occurred in relatively high numbers in terrestrial habitats, which reflects the importance of a small number of field feeding sites for the Cork Habour population of this species.”

88. This is the only material placed before me on this application in relation to a decline in bird populations notwithstanding the observation in the Atkins Report (quoted at para.

5.16 above) to the effect that monitoring data would be required to establish exactly how these species respond to the loss of the lagoon. No other updated evidence regarding Wigeon or other bird species in response to the loss of the lagoon was provided in support of the application before me more than 11 years after the Atkins Report was completed, other than general information supporting an ongoing decline in numbers dating to in or about 2010 which had not been arrested or reversed.

89. While acknowledging Ms. Devereux’s concerns in relation to the detrimental impacts of removal of the infilled material, Mr. Good says that in his professional opinion those impacts are of a lesser effect than the loss of a lagoonal wetland which was part of a protected site of international importance for birds. He is silent, however, as to the impact of removal of infill at a remove of some 11 years in reversing the harmful effects of the original loss of lagoonal wetland, the impact of this action on the changed but existing habitat and the conservation objectives which will be advanced by such actions.

90. As regards flood risk, the evidence on behalf of the Respondent is that the causeway was built in or about 1880 to reclaim the lands he now farms. As I understand it, it is the Respondent’s position that the reason a lagoon/wetland area developed on his lands subsequently following these early reclamation works was because of the faulty operation of tidal flaps in the causeway with the result that his land remained very wet and vulnerable to flooding.

91. It is maintained on behalf of the Respondent that flood risk has not been exacerbated by the works he has carried out and it is pointed out that the Respondent’s land is the lowest lying land in the area and liable to flood before land belonging to any third party upstream of the subject lands. It is the Respondent’s position that since the reclamation works were completed in 2014, there has been no flooding of any consequence on the stream. This leads an engineer retained on behalf of the Respondent to offer the opinion that the Council’s predictions that flooding will be a problem is incorrect (per letter of Mr. Philip O’Doherty, Consulting Engineer, dated the 25th of February, 2020).

92. It is acknowledged on behalf of the Respondent, however, that the area of open water on site has been reduced. It is not denied that this results in a loss of range for Wigeon or other waterfowl. This notwithstanding it is contended that there remains a substantial area of water. Instead of a lagoon type expanse of water, water on site is now channelled through a stream and releases from the stream through the tidal flaps on the causeway.

LEGISLATIVE FRAMEWORK

Protection for Habitats (including Wetlands) and Birds

93. The Wildlife Act, 1976 and the Wildlife (Amendment) Act, 2000 (as amended)

(hereinafter “the Wildlife Acts”) were enacted to provide protection to birds, animals, and plants in Ireland and to control activities which may have an adverse impact on the conservation of wildlife. The Wildlife Acts provide the legislative framework for Natural Heritage Areas (hereinafter “NHA”). Natural Heritage Areas are designated to protect habitats, flora, fauna and geological sites of national importance. With regard to the listed species under the Wildlife Acts, it is an offence to disturb, injure or damage their breeding or resting place wherever these occur without an appropriate licence from the NPWS. The current list of plant species protected by s.21 of the Wildlife Act, 1976 (and amendments) is set out in the Flora (Protection) Order, 2022 (S.I. No. 235/2022).

It illegal to cut, uproot or damage the listed species in any way, or to offer them for sale.

In addition, it is illegal to alter, damage or interfere in any way with their habitats.

94. Wetlands as a habitat are the subject of protection within this legislative regime, especially as waterfowl habitat. Wetlands are the subject of an international treaty, namely, the Convention on Wetlands of International Importance especially as Waterfowl Habitat (referred to as “the Ramsar Convention”, to which Ireland is a contracting party. The Ramsar Convention, signed in Ramsar, Iran, in 1971, is an intergovernmental treaty, which provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. This Convention provides at Article 1:

“1. For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.

2. For the purpose of this Convention waterfowl are birds ecologically dependent on wetlands.”

95. Under Article 3 of the Convention, it is envisaged that Contracting Parties shall formulate and implement their planning to promote the conservation of the wetlands and as far as possible the wise use of wetlands in their territory. Article 4 requires each Contracting Party to promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands and where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland, it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat. Cork Harbour has been designated as a Ramsar Site.

96. The foregoing measures have developed and been expanded upon in the light of the evolving requirements of EU law. SACs and SPAs form part of a network, known as Natura 2000 sites, to be designated across Europe to protect biodiversity within the European Union. SACs are designated under the Habitats Directive (92/43/EEC, as

amended), as transposed into Irish law by the European Communities (Birds and Natural Habitats) Regulations 2011 and the Planning and Development Act 2000 (as amended) and subsequent legislation. For their part, SPAs are designated under the Birds Directive (79/409/EEC, as amended and codified in 2009/147/EC) and further protected under the Habitats Directive and the 2011 Regulations.

97. Article 6(3) of the Habitats Directive (92/43/EEC as amended) states that:

“Any plan or project not directly connected with or necessary to the management of the Natura 2000 site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.”

98. Such an assessment, as already referred to above, is known as an Appropriate Assessment (A.A.) and is comprised of an initial screening to establish whether the plan or project for which consent is sought is likely to have a significant effect on a European Site giving rise to a requirement for an AA. On foot of this screening exercise, the public authority whose consent is sought, may give notice requiring full assessment by directing the furnishing of a Natura Impact Statement and such additional information that the public authority considers necessary for the purpose of the Regulation.

99. Relevant to the lands in issue in these proceedings, the Great Island Channel candidate SAC (Site Code 00I058) was advertised as being proposed for designation under the European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997) on the 26th of August 1999. From that date the subject lands were located in a candidate SAC.

100. Somewhat later, the Cork Harbour SPA was created by the European Communities (Conservation of Wild Bird (Cork Harbour Special Protection Area 00403)

Regulations 2010 (S.I. 237 of 2010). Ballintubbrid East and West are listed as being within the Cork Harbour SPA at Schedule 2 of the 2010 Regulations. Wigeon are amongst the special conservation interests identified at Schedule 3 thereof.

101. The 2010 Regulation recites that in establishing their Special Protection Area network, Member States are explicitly required under Article 4 of the Directive to pay attention to the protection of wetlands. To this end the wetland habitat that is contained within the Cork Harbour SPA and the waterbirds that utilise this resource are said to be “listed as a special conservation interest for this site. This special conservation interest is listed as “Wetlands and Waterbirds.”

102. Under Schedule 4 of the 2010 Regulations the consent of the Minister is required in respect of any activity that involves the destruction, damage or removal of nests or eggs or any disturbance, particularly during periods of breeding or rearing. Consent is also required for site specific activities including altering watercourses or wetlands, including changing the height of the water table, blocking or altering the flow of the water or deepening any channel. Construction of tracks and reclamation of infilling are specifically mentioned as requiring ministerial consent, as is removal of soil, mud, gravel, rock or minerals and any activity which destroys habitat.

103. Annex IV of the Habitats Directive provides protection to a number of listed species, wherever they occur. Under Regulation 23 of the Habitats Directive, any person who, regarding the listed species:

“Deliberately captures or kills any specimen of these species in the wild, deliberately disturbs these species particularly during the period of breeding, rearing, hibernation and migration, deliberately takes or destroys eggs from the wild or damages or destroys a breeding site or resting place of such an animal shall be guilty of an offence.”

104. Further transposing the requirements of EU law, certain plant species and their hybrids are listed as Invasive Alien Plant Species in Part 1 of the Third Schedule of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. 477 of 2011, as amended). In addition, soils and other material containing such invasive plant material, are classified in Part 3 of the Third Schedule as vector materials and are subject to the same strict legal controls.

105. Under Regulation 27 of the 2011 Regulations, any public authority having or exercising functions which may have implications for or effects on nature conservation “shall” exercise those functions in compliance with and, as appropriate, to secure compliance with, the requirements of the Habitats Directive, the Birds Directive and the 2011 transposing Regulations. Functions include the taking of appropriate enforcement action (under Regulation 27(4)(c)). As already noted above, Japanese knotweed is listed as a non-native species subject to restrictions under Regulations 49 and 50. Both the bat and the otter are protected species under the Habitats Directive.

106. Finally, by S.I. No. 206/2019 (The European Union Habitats (Great Island Channel Special Area of Conservation 001058) Regulations 2019 signed on the 8th of May 2019, the subject lands were also designated as an SAC. Article 5 of the 2019 Regulations provides that a person shall not carry out, cause or permitted to be carried out or continue to carry out or assist in carrying out any activity specified in Schedule 4 within the Special Conservation Area except with and in accordance with, consent given by the Minister under Regulation 30 of the Regulations of 2011, upon application in writing to the Minister to carry out the activity.

107. Under Schedule 4 to the 2019 Regulations, activities requiring consent of the Minister (unless otherwise authorised in accordance with Regulation 5(2)) are specified as including reclamation including infilling (ARC 01), or the removal or disturbing of rock, minerals, mud, sand, gravel or other sediment (ARC 03) or disturbing soil or substrate (ARC 11), or storage, burial, disposal or recovery of any materials (ARC 14)

or works on, or alterations to, the banks, bed or flow of a drain, watercourse or waterbody (ARC 24).

108. According to the Explanatory Note to the 2019 Regulations, those activities that require the consent of the Minister or in some circumstances another public authority listed as Schedule 4 are cited for their potential to cause disturbance or damage to the natural habitat types and animal and plant species specified in Schedule 3 of the Regulations, namely, mudflats and sandflats not covered by seawater at low tide and Atlantic salt meadows.

Waste Management

109. In addition to obligations under EU law in relation to habitat and bird conservation, separately the State is obliged to provide all the measures necessary to ensure a correct implementation of the Waste Framework Directive (Directive 2008/98/EC, repealing certain Directives).

110. Seeking to transpose the requirements of EC law, the 1996 Act provides extensively in relation to the prevention, management and control of waste thereby seeking to give effect to requirements of EU law (which said requirements are more specifically listed in a table to s. 2 of the 1996 Act). The 1996 Act was introduced following the initiation of a Treaty infringement procedure against Ireland. Under the 1996 Act local authorities are given extensive powers in relation to the control of environmental pollution arising from waste activities within its functional area under the provisions of the 1996 Act.

Many of these powers are couched in enabling rather than mandatory terms.

111. In terms of establishing the scope of application of the 1996 Act, disposal is given a broad definition under s. 4 of the 1996 Act as follows:

““disposal”—

(a) means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy, and

(b) without prejudice to the generality of paragraph (a), includes the disposal operations listed in the Third Schedule, and “waste disposal activity” shall be construed accordingly;”

112. As the injunctive powers invoked by the Council in these proceedings are concerned with controlling environmental pollution, the definition of environmental pollution for the purposes of the 1996 Act is of fundamental importance. Environmental Pollution is defined in wide terms under s. 5 of the 1996 Act as follows:

“environmental pollution” means, in relation to waste, the holding, transport, recovery or disposal of waste in a manner which would … endanger human health or harm the environment, and in particular—

(a) create a risk to waters, the atmosphere, land, soil, plants or animals,

(b) create a nuisance through noise, odours or litter, or

(c) adversely affect the countryside or places of special interest;”

113. In this case (a) and (c) have a particular relevance in view of the evidence. The definition captures “risk” rather than actual damage in (a) and “adverse affect” without the demonstration of pollution in the form of contamination or leachate in (c).

Environmental pollution is established if a risk is created to waters, the atmosphere, land, soil, plants or animals or there is adverse affect on a place of special interest.

114. Section 39 provides for a requirement to hold a waste licence in respect of waste disposal as follows:

“39.—(1) Subject to subsections (4) and (7), a person shall not dispose of or undertake the recovery of waste (including the treatment of waste) at a facility, on or after such date as may be prescribed, save under and in accordance with a licence under this Part (in this Act referred to as a “waste licence”) that is in force in relation to the carrying on of the activity concerned at that facility.”

115. Section 55 of the 1996 Act was relied upon by the Council in relation to the disposal of waste at the subject lands. It vests power in the local authority to require measures to be taken in relation to the holding, recovery and disposal of waste as follows:

“55.—(1) (a) Where it appears to a local authority, as respects its functional area, that it is necessary so to do in order to prevent or limit environmental pollution caused, or likely to be caused, by the holding, recovery or disposal of

waste, the local authority may serve a notice under this section on a person who is or was holding, recovering or disposing of the waste, as the case may be.

(b) Paragraph (a)shall not apply in respect of the recovery or disposal of waste carried on in accordance with a waste licence, or a licence or revised licence granted under Part IV of the Act of 1992.

(2) A notice under this section may require—

(a) the taking of specified measures which the local authority considers necessary in order to prevent or limit the environmental pollution concerned or prevent a recurrence thereof,

(b) the cesser of the holding, recovery or disposal concerned,

(c) the mitigation or remedying of any effects of any activity aforesaid in a specified manner,

within a specified period (not being less than 14 days commencing on the date of the service of the notice).

(3) A notice under this section—

(a) may be served whether or not there has been a prosecution for an offence under this Act in relation to the activity concerned;

(b) shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.

(4) A person on whom a notice under this section has been served may, within such period as may be specified in the notice for the purpose, make representations in writing to the local authority concerned regarding the terms of the notice, and the local authority, having considered any such representations, may amend the terms of the notice or confirm or revoke the notice, and shall inform the person of such amendment, confirmation or revocation.

(5) A person on whom a notice under this section has been served shall, within the period specified in the notice, comply with the terms thereof.

(6) If a person on whom a notice under this section has been served does not, within the period specified in the notice, comply with the terms thereof, the local authority concerned may take such steps as it considers reasonable and necessary to secure compliance with the notice, and may recover any expense thereby incurred from the said person as a simple contract debt in any court of competent jurisdiction.

(7) Without prejudice to the generality of subsection (2), a notice under this section may require—

(a) the removal of waste to any location or locations,

(b) the disposal of waste in a specified manner or at a specified facility,

(c) the taking of measures to prevent the continuance of the activity to which the notice relates,

(d) the treatment of affected lands or waters so as to mitigate or remedy the effects of the activity concerned,

(e) the taking of such other action as may be necessary to counteract any risk of environmental pollution arising from the activity concerned.

(8) A person who fails to comply with a notice under this section shall be guilty of an offence.

(9) Save where the context does not admit such a construction, references in this section to a notice thereunder shall, if the notice has been amended under subsection (4), be construed as references to the notice as so amended.”

116. Accordingly, under s. 55, the Council may require measures to be taken in relation to the holding, recovery or disposal of waste and may serve a notice on persons to prevent or limit environmental pollution caused by the holding, recovery or disposal of waste.

This notice may require specified measures to be taken within a specified period of not less than 14 days which the local authority considers necessary to prevent or limit environmental pollution or prevent a recurrence thereof. The notice may also require the cessation of holding, recovery or disposal activity or require specified mitigation or remedial measures.

117. A person on whom a notice has been served may make representations in writing to the local authority concerned regarding the terms of the notice, and the local authority, having considered any such representations, may amend the terms of the notice or confirm or revoke the notice, and shall inform the person of such amendment, confirmation or revocation. Failure to comply with a notice is an offence and the local authority may take steps which it considers to be reasonable and necessary to ensure compliance with the notice.

118. Section 56 of the 1996 Act vests the Council with power to take measures to prevent or limit environmental pollution caused by waste and to seek to recover the costs of such measures as a simple contract debt in a court of competent jurisdiction. Thus, the Council has power to enter upon a site to take remedial actions at the Council’s expense and thereafter to pursue the persons whose actions necessitated these actions. The Council has not invoked this power to carry out the remedial works which it asks the Court to direct on this application.

119. Section 57 of the 1996 Act allows a local authority, or any other person, to bring an application to the High Court by way of motion seeking the cessation of activity involving the recovery or disposal of waste where waste is being held, recovered or disposed of in a manner that causes or is likely to cause environmental pollution or where there is a contravention of s.34 or s.39(1) of the 1996 Act or requiring measures to be carried out to prevent or limit such poluution in the following terms:

“57.—(1) Where, on application by any person to the High Court, that Court is satisfied that waste is being held, recovered or disposed of in a manner that causes or is likely to cause environmental pollution or section 34 or 39(1) to be contravened, it may by order—

(a) require the person holding, recovering or disposing of such waste to carry out specified measures to prevent or limit, or prevent a recurrence of, such pollution or contravention, within a specified period,

(b) require the person holding, recovering or disposing of such waste to do, refrain from or cease doing any specified act, or to refrain from or cease making any specified omission,

(c) make such other provision, including provision in relation to the payment of costs, including costs incurred by the Agency in relation to the carrying out of relevant inspections or surveys and the taking of relevant samples and the analysis of the results of any such activities, as the Court considers appropriate.

(2) An application for an order under this section shall be by motion, and the High Court when considering the matter may make such interim or interlocutory order as it considers appropriate.

(3) An application for an order under this section may be made whether or not there has been a prosecution for an offence under this Act in relation to the activity concerned and shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.

(4) Without prejudice to the powers of the High Court to enforce an order under this section, a person who fails to comply with an order under this section shall be guilty of an offence.”

120. Section 58 of the 1996 Act allows for an application to be brought to the “appropriate court” where a person is holding, recovering and disposing of waste that is causing or has caused environmental pollution or where there is a breach of s.34 or s.39 of the 1996 Act in the following terms:

“58.—(1) (a) Where, on application by any person to the appropriate court, that court is satisfied that another person is holding, recovering or disposing of, or has held, recovered or disposed of, waste, in a manner that is causing, or has caused, environmental pollution or section 34 or 39(1) to be contravened, that court may make an order requiring that other person to do one or more of the following, that is to say:

(i) to discontinue the said holding, recovery or disposal of waste within a specified period, or

(ii) to mitigate or remedy any effects of the said holding, recovery or disposal of waste in a specified manner and within a specified period.

……..

(2) (a) An application for an order under this section shall be brought in a summary manner and the court when considering the matter may make such interim or interlocutory order as it considers appropriate.

(b) …...

(3) (a) An order shall not be made by a court under this section unless the person named in the order has been given an opportunity of being heard by the court in the proceedings relating to the application for the order.

(b) The court concerned may make such order as to the costs of the parties to or persons heard by the court in proceedings relating to an application for an order under this section as it considers appropriate.

(4) (a) Where a person does not comply with an order under subsection (1), a local authority, as respects its functional area, or the Agency, may take any steps specified in the order to mitigate or remedy any effects of the activity concerned.

(b) The amount of any expenditure incurred by a local authority or the Agency in relation to steps taken by it under paragraph (a) shall be a simple contract debt owed by the person in respect of whom the order under subsection (1) was made to the authority or the Agency, as the case may be, and may be recovered by it from the person as a simple contract debt in any court of competent jurisdiction.

(5) (a) …. .

(b)…. e.

(6) An application under subsection (1) may be made whether or not there has been a prosecution for an offence under this Act in relation to the activity

concerned and shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.

(7) Without prejudice to any powers of the court concerned to enforce an order under subsection (1), a person who fails to comply with an order under that subsection shall be guilty of an offence.”

121. Section 58 enables the Court to make an order requiring:

(a) the discontinuance of an unlawful activity, including the holding, recovery or disposal of waste within a specified period; or

(b) the mitigation or remediation of any deleterious effects of that activity in a specified manner and within a specified period.

122. Where a person fails to comply with an order, the local authority (or the EPA) may take any steps specified in the order to mitigate or remedy the effects of the injurious activity. The expenditure incurred by the local authority may be recovered as a simple contract debt. An application pursuant to s.58 may be made whether or not there has been a prosecution for an offence under the Waste Management Acts in relation to the activity concerned. Failure to comply with an order under s.58 is an offence.

123. As clear from the foregoing, an application may be made under ss. 57 and/or 58 whether there has been a prosecution for an offence under the 1996 Act or not and the making of an application expressly does not prejudice a prosecution for an offence in relation to the activity concerned. Both provisions are invoked in these proceedings, but the injunctive power thereby vested is not identical. While both sections deal with situations where pollution is occurring, s. 57 also deals with cases where it has not happened yet but is likely to occur, whereas s. 58 deals with cases where it has already happened.

Code of Practice on Environmental Risk Assessment

124. The Code of Practice on Environmental Risk Assessment for Unregulated Waste Disposal Sites was published by the Environmental Protection Agency (hereinafter “the EPA”) in 2007 pursuant to powers under s. 76 the Environmental Protection Agency Act, 1992 (as amended) following a Ministerial direction under s.60 of the 1996 Act made in May, 2005.

125. The Code of Practice seeks to remind local authorities of their obligations, under s.22 of the 1996 Act, to carry out an inventory and risk assessment of all historic unregulated waste disposal sites. In addition, local authorities are required under s.26(2) of the 1996 Act to identify sites at which ‘waste disposal activities, being activities that to a significant extent involved hazardous waste, have been carried on’. The Code of Practice published in 2007, sets out a risk-based assessment procedure, which is to be applied to these sites to evaluate the sites identified. The Code of Practice sets out a framework to allow the intrinsic risk posed by the activity to the environment to be assessed. The intrinsic risk relates to the risk posed without any mitigation measures having been put in place to reduce the risk.

126. The Code of Practice provides in relation to Category 3 sites, namely, sites on which the unregulated disposal of waste took place without a waste licence in the period after the coming into operation of the Waste Management Licensing Regulations, 1997 and private sites in operation after the coming into operation of the European Communities (Waste) Regulations 1979 (S.I. No. 390 of 1979), that the following steps shall be taken:

“The local authority shall seek to have the cost of the risk assessment borne by the person(s) responsible for the illegal activity including, where appropriate, pursuit of the amount concerned as a simple contract debt in a court of competent jurisdiction.

The following sites shall at all times be remediated:

…..

Wetlands;

Natural Heritage Areas, Candidate Special Areas of Conservation or Special Protection Areas;

In all of these cases, prior to embarking on the risk assessment process, it is to be assumed that the waste shall be removed from the site except only where it can be shown that an alternative solution provides greater protection to the environment and the health of the local population. The remediation plan for these sites should therefore centre on the removal of waste from the site and the manner in which this is to be done. In almost all such cases, the majority of waste is likely to be required to be removed and the only circumstance where waste can remain on the site is where it can be clearly demonstrated that this will lead to greater protection of the environment or enhancement of the environment and greater protection of the health of the local population.”

127. The Code of Practice provides that the local authority shall ensure that the holder of the waste undertakes the following actions:

• Carry out, or arrange for the carrying out, of a risk assessment to determine the environmental impact, if any, of the waste illegally deposited;

• Where appropriate make application for a permit or licence to the relevant local authority or the Agency which will determine the actions required by the holder to remediate and manage the site into the future;

• Subject to the application being approved, comply with any permit or licence so given to ensure that all remediation and management measures determined by that permit or licence are complied with and that the site poses no identifiable future threat to the environment or human health;

• Not be permitted to import greater quantities of material for deposition other than such inert material/soil as may be necessary for site remediation and closure.

128. The Code of Practice requires that the local authority should consult with the NPWS to ensure that lands close to wetlands, Natural Heritage Area, Candidate Special Areas

of Conservation or Special Protection Areas or places of special interest such as high amenity areas are properly assessed.

129. In the case of wetlands the subject of landfill, the Code of Practice provides (at para.

7.1):

“In all of these cases, prior to embarking on the risk assessment process, it is to be assumed that the waste shall be removed from the site except only where it can be shown that an alternative solution provides greater protection to the environment and the health of the local population. The remediation plan for these sites should therefore centre on the removal of waste from the site and the manner in which this is to be done. In almost all such cases, the majority of waste is likely to be required to be removed and the only circumstance where waste can remain on the site is where it can be clearly demonstrated that this will lead to greater protection of the environment or enhancement of the environment and greater protection of the health of the local population.”

130. The Code of Practice refers to the decision of the CJEU in Commission v. Ireland case (C-494/01) in relation to the implementation of Directive 75/442/EEC38 on waste, which led to the establishment of an administrative system to regularise the position of those sites which had been identified as historical waste disposal sites and which had been subjected to a risk assessment in accordance with the Code of Practice.

131. The Code further addresses non-licensed closed landfill involving activities considered appropriate for inclusion on “section 22” and “section 26” Registers and states:

“In discharging these obligations to identify non-licensed closed landfills, local authorities should prioritise efforts in focussing upon such Primary Activities where there is a strong likelihood that waste disposal has taken place as follows:

Landfill

Illegal waste disposal

Land reclamation including infilling of wetlands.”

132. In Appendix 4 to the Code of Practice, the particular position of wetlands is addressed further. The Code of Practice reflects that wetlands perform very important functions at both a local and global scale, provide resources important for human welfare and represent a valuable cultural and natural heritage.

133. The Code of Practice notes with reference to the Ramsar Convention and the requirement to protect wetlands:

“However, despite the above, wetlands were until very recently regarded mistakenly by many simply as unproductive land whose conversion to a more profitable use, mainly agriculture, was beneficial to society. Alternatively, they were considered simply as wastelands ideally suited to the disposal of wastes.

The unsustainability of both approaches is now recognised and they are no longer considered acceptable practices. The European Union (EU) issued a Communication on the Wise Use of Wetlands in 1995, which outlines the importance of wetlands and their functions for human welfare, notes the increasing loss of wetlands at both a global and EU level and states its commitment to wise use of wetlands in the context of sustainable development and in accordance with the Ramsar Convention.”

134. The Code refers to Commission Guidance on the role of wetlands in the implementation of the Water Framework Directive (European Commission, 2003). The Code further states:

“The infilling of designated wetlands by either landfill, or through improvement or development of land, or through land reclamation is no longer an acceptable practice. Accordingly, illegal landfills should not be allowed to remain in-situ in wetlands under circumstances where it is deemed (following an assessment)

to result in a negative impact.”

135. The Code of Practice envisages that a permit application may be submitted by an operator seeking to carry out an in-situ remediation of an illegal site, which has involved the infilling of wetlands but is not considered to result in a negative impact. The Code requires that such a permit application:

“must address all impact and potential impacts: On the wetland itself, and the services, functions and value that the wetland provides (e.g. flood relief, water quality, biodiversity etc.) Such a permit application must contain sufficient detail and information so as to allow the competent authority to make a determination that the infilling of the wetlands will not have an adverse impact on the environment following execution of the proposed remediation works.

Remediation of a wetland or removal of waste from a wetland shall be supervised by an ecologist or suitably qualified and experienced person.”

136. The Code of Practice is intended to guide local authorities and is not akin to a statutory provision and should not be treated as though it lays down statutory requirements. Under s. 76 of the 1992 Act the stated purpose of a code of practice is to provide practical guidance with respect to compliance with any enactment or otherwise for the purposes of environmental protection. It is noteworthy, however, that when a code is introduced pursuant to a Ministerial direction, as this one was, the direction will also have been laid before each House of the Oireachtas in accordance with s. 60(4) of the 1996 Act. The terms of the Code of Practice introduced in relation Environmental Risk Assessment for Unregulated Waste Disposal Sites, informed as it is by international best practice, is relevant and carries weight when considering the proper exercise of a discretion under ss. 57 and 58 of the 1996 Act in respect of illegal landfills.

APPLICABLE LEGAL PRINCIPLES

Principles Guiding the Exercise of Discretion

137. A good starting point in considering the proper approach to the exercise of discretion under ss. 57 and 58 of the 1996 Act is the decision in Morris v. Garvey [1983] I.R. 319 where orders in the form of a statutory injunction requiring remedial measures (the taking down of a gable and front wall) were made in the planning context under s. 27 of the Local Government (Planning and Development) Act, 1976. The Supreme Court (Henchy J.) found that the new statutory jurisdiction vested under s. 27 of the 1976 Act was extremely wide. Henchy J. made it clear that the actions of developers in proceeding at haste to complete work which they know to be in breach of conditions on the basis that they can resist an injunction application by contending that it would cause undue expense and trouble, should not find favour with the court. He stated that (at p.

324):

“…such conduct is not a good reason for not making an order requiring work carried out in such circumstances to be pulled down.”

138. Henchy J. added that when a statutory jurisdiction of this kind is invoked, the High Court becomes the guardian and the supervisor of the carrying out of the permitted development according to its limitations. He stated:

“In carrying out that function, the court must balance the duty and benefit of the developer under the permission, as granted, against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infrct6ion, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is

“necessary to ensure that the development is carried out in conformity with the permission”.

139. He added that an order which merely restrains the development from proceeding with unpermitted work would not alone fail to achieve that aim but would often make matters worse by producing a partially completed structure which would be offensive to the eye as well as having the effect of devaluing neighbouring property. Although the costs of remediation were described as substantial, Henchy J. observed that they were “foreseeable and avoidable”. He found that the justice of the case required that they fall on the developer who acted in breach of planning permission. He had specific regard to the fact that the developer, served with due notice of unpermitted building operations, carried on with them despite the threat of legal proceedings. He noted that if the developer had wished to retain the unpermitted walls, he should have applied for fresh development permission.

140. In a later but somewhat similar application under s. 27 of the 1976 Act in which remedial orders concerning water pollution in respect of a landfill site which was not managed in in accordance with conditions of planning and waste permit, O’Hanlon J.

observed in his decision in Meath County Council v. Thorton & Anor. (judgment of the 14th of January, 1994), that the onus was on the landowner to come with a solution to the problem and it was not on the local authority in that case to provide it for them.

141. In Wicklow County Council v. Fenton [2002] IEHC 202, [2002] 4 I.R. 44, the High Court considered the exercise of the then relatively recently enacted powers under ss.

57 and 58 of the 1996 Act and expanded on the polluter pays principle under EU law (deriving initially from Article 174 of the Treaty of Rome (as amended)). Following a careful review of the applicable EU law provisions and case-law, O’Sullivan J.

concluded that he should apply teleological principles of interpretation and construe the 1996 Act in a manner which achieves the objectives of control and prevention of environmental pollution due to production, handling, recovery and disposal of waste on the basis that where environmental pollution occurs or is likely to occur, a person who causes it can be made subject of an order. He added that both ss. 57 and 58 use the

word “may” in defining the jurisdiction conferred on the court but in his view, this connotes:

“…that the jurisdiction is discretionary but, that said, such discretion must be exercised in accordance with principles which include the principle that the objectives of the Act and of the underlying directives must be achieved by the interpretation and application by this court of those sections.”

142. He noted that the “polluter pays” principles requires that the party causing pollution should pay for it in full rather than an innocence party such as the Council or the community at large. He observed that the community at large would “pay” for pollution if it were left unremediated or partially remediated.

143. In relation to remediation possibilities, O’Sullivan J. rejected the contention that the Council ought to have ascertained whether hazardous hospital waste to be removed would be accepted at a North Dublin dump, finding that the onus was not on the Council to go into this level of detail. Referring to the expense of remediation, O’Sullivan J.

was satisfied that the respondent must accept liability for the consequences of his actions and failures which were foreseeable. In deciding on the terms of the orders he proposed to make, O’Sullivan J. recalled that the precautionary principle must apply when making orders for the protection of the environment or remediation of pollution.

Applying a broad definition of “environmental pollution” in line with the definition in s. 5 of the 1996 Act, O’Sullivan J. noted that it is duty of the court to make orders necessary for the mitigation and remedying of risk of pollution.

144. Finally, it was made crystal clear in Fenton, that any order the Court makes should be specific having regard to the consequences of being found in contempt of court or guilty of a criminal offence for non-compliance with the terms of any order made under ss. 57 and/or 58. In Fenton, the Court was mindful of the fact that planning permission and a licence from the EPA were required in relation to the proposed remediation measures and that there was no certainty of outcome. Notwithstanding this lack of certainty, the

Court was prepared to make final orders directing the comprehensive remediation of the landfill by way of the staged process which had been proposed by the Council.

145. In Dublin City Council v. Eircom PLC [2002] 3 I.R. 327, it was held that once unauthorised development contrary to the planning code is established, the respondent bears the onus of showing that any discretion should be exercised in his favour. By analogy, it seems that where environmental pollution has been, is being or is likely to be caused by unauthorised activity on the part of a respondent, the onus of persuading the court not to direct remediation in the terms sought rests on the respondent.

146. When it comes to alternative remediation proposals, Laois County Council v. Scully & Ors. [2006] IEHC 2, [2006] 2 I.R. 292 is authority for the proposition that where two solutions are put forward to remedy a breach of the 1996 Acts and the EU directives given effect to therein, it is not permissible to chose to impose a remedy which is ease of the respondent but which, as a matter of probability was not one which would achieve the objectives of the legislation, where the other alternative remediation solution could achieve those objectives. Where a less expensive remediation option is equally effective, then there is no reason why a court would not countenance the less onerous proposal.

147. In Cork County Council v. O’Regan [2009] 3 I.R. 39, orders were again sought in respect of the holding, recovery and disposal of waste in a case where the respondent had pleaded guilty to illegal dumping in prior criminal proceedings, much as the Respondent in this case. Although the local authority had sought an order directing the removal of waste, at the hearing (and flagged before the hearing) the local authority refined its position and this was restricted to an initial order requiring the respondents to commission a site investigation and report for the purpose of enabling the court to make further orders.

148. In making an initial order rather than the final orders sought in the Notice of Motion, Clarke J. considered that a report of the type contemplated was a necessary step towards making specific orders to ensure the waste was no longer such as gave rise to a risk of environmental pollution. Clarke J. also endorsed the application of the principles developed in Morris v. Garvey to an application under s. 57 of the 1996 Act finding that while the jurisdiction conferred is a discretionary jurisdiction, it must be exercised to achieve the objectives of the 1996 Act and the underlying directives, that the court must balance the duty and benefit to the respondent against the environmental and ecological rights of the public and that exceptional circumstances are required before a court should exercise a discretion against the making of an order necessary to remedy harm done. He added further that the remedy ordered should be proportionate to the ends required and should place the least possible burden on the respondent to secure the objectives of the Act. In this regard, he observed (at para. 43):

“it does seem to me that the response of the court should be proportionate to the ends involved. Therefore, there should be some reasonable proportion between the burden placed upon the respondent and the good to be achieved by securing compliance with the environmental code concerned.”

149. Issue was taken in Cork County Council v. O’Regan with the fact that the refined relief pursued as an initial order had not been sought in the Notice of Motion and the jurisdiction of the Court to proceed in stages was called into question. Clarke J. did not accept these arguments recalling that the Act, on its terms, gives a very wide discretion to the court found the court had jurisdiction where, in summary, it was established that

(a) the conditions necessary to the invocation of the court’s discretion (in that case under s. 57) had arisen; and (b) the extent and nature of the waste concerned and the extent of the minimum works required to remedy the environmental pollution concerned was unclear; and (c) requiring such a report would be a proportionate response in all the circumstances of the case.

150. Of importance given the issues presented in this application, in Cork County Council v. O’Regan, Clarke J. also addressed the argument made that the effect of removal or remedial works might themselves cause environmental pollution by disturbance.

Acknowledging that this was a possibility, Clarke J. stated (at para. 50):

“that very fact seems to me to be a further justification for securing a detailed report which will, doubtless, address that issue amongst others in making recommendations as to the course to be followed.”

151. In making the initial order directing the commissioning of an investigation report, Clarke J. stated that a report of the type contemplated was a necessary preliminary to the court being able to fashion a proportionate order designed to achieve the objectives of the 1996 Act while not imposing an excessive burden on the respondents. He added that the initial order sought was encompassed in the proceedings as being a necessary step towards making specific orders designed to ensure that the waste concerned is not longer (whether by removal, remediation or part one and part the other) such as to give rise to a risk of environmental pollution. He was satisfied that an initial order was warranted in view of the interests of justice and the identifying the best way of procuring the objectives of the 1996 Act. He added that it would remain open to the respondents to seek to persuade the court that any of its recommendations should not be subject to court order. By commissioning the report under compulsion, the respondents were not to be treated bound by it.

152. Addressing the overlap between the s. 57 and s. 58 in South Dublin County Council v.

Fennell & Ors. [2011] IEHC 350, Clarke J. observed that the need for two separate provisions was not immediately apparent (para. 8.2) before adding that s. 58 was wider in ambit covering both present and past actions and expressly providing for the court’s jurisdiction to require remediation or mitigation of any effects of previous actions.

153. In Brownfield Restoration Ireland Limited v. Wicklow County Council [2017] IEHC 456, Humphreys J. was required to consider a remediation plan which proceeded based on leaving some waste on site on the premise that it did not present a current risk of environmental pollution. Humphreys J. noted that the application of the EPA Code of Practice gives rise to a starting presumption that all waste should be removed, a presumption which could only be displaced if retaining waste on site would provide better environmental protection than removing it. Humphreys J. was satisfied that this was certainly not the case on the facts before him before adding that even if the waste were not to be removed (at para. 280):

“its retention constitutes long-term storage which would require a licence which does not exist.”

154. He was reinforced in his conclusion as to the appropriate order by factors particular to that case which he identified as including the nature of the site, previous decisions requiring waste to be removed, the precautionary principle, the polluter pays principle, the principle of a high level of environmental protection, the volume of the waste, the location and nature of the waste and the risk arising therefrom (in that case the waste included hazardous waste), non-compliance with EU law and related standards, a science based approach underpinning the validity of the methodology to be followed and the need for effective enforcement action as emphasised by the CJEU and central government. Humphreys J. observed that as there was no licence to retain waste on site, he had jurisdiction under s. 58 to require the removal of waste even without environmental pollution being established or alternatively to direct that authorisation to retain the waste be applied for and obtained if waste is to be permitted to remain on site.

155. Ultimately, underpinning the Court’s final ruling was the EU Charterlevel commitment to a high level of environmental protection and the implied constitutional commitment to intergenerational solidarity which he found militated against a lax and forgiving approach to fundamental issues of stewardship of the environment in trust for future generations.

156. Vigilant and effective protection of the environment was described by Humphreys J.

in Brownfield Restoration Ltd as an implied constitutional obligation, to be laid at the door of private parties as well as the State before adding that it is also (at para. 307)

“an express obligation under International, EU and national legal provisions”. He further stated that a failure to order remediation would be to seriously inhibit the effectiveness of EU environmental law as it would substantially weaken the deterrence of future illegal dumping. Humphreys J. was unequivocal (at para. 310) that polluters generally need to know that they will be required to provide full remediation and to pay

for it in full as any other message would seriously undermine the public interest as well as undermining the effectiveness of the implementation of EU law.

157. I was not referred during the hearing of this case to the Framework Waste Directive or the decision of the CJEU in Commission v. Ireland (C-494/01) other than indirectly by reliance placed on the EPA Code of Practice where the enforcement action taken by the Commission against the State is mentioned. In bringing an enforcement action against Ireland pursuant to Article 226 EC, the Commission cited several instances involving Ireland’s failure to dispose of waste properly and expressed the view that the cited violations were illustrations of the systemic and consistent tolerance of such violations by Irish authorities.

158. Amongst the complaints ventilated in those enforcement proceedings was a complaint in respect of Cork County Council whom the Commission identified as having tolerated since 1990 the carrying out by a private operator without a permit of operations involving the storage on a large scale of organic waste in lagoons at Ballard and the disposal of that waste by land spreading, failing to ensure that those operations ceased and were punished.

159. Ultimately, the CJEU found that Ireland had failed to comply with its obligations under the Directive by ensuring that the measures provided for in the 1996 Act were applied including by tolerating unauthorised depositing of construction and demolition waste on wetlands (in Limerick in the case cited in the judgment).

160. Given the role of this Court in providing remedies sufficient to ensure effective legal protection in the fields governed by EU law particularly under Article 19 of the TEU, the fact that the Council was guilty of failing to progress action to effectively stop unauthorised waste disposal and secure remediation in a timely manner is a factor which I must consider and to which I next turn.

Delay as a Factor in the Exercise of the Court’s Discretion

161. Undoubtedly there was inordinate delay in bringing and prosecuting this application for a statutory injunction. As apparent from the decision of the CJEU in Commission v. Ireland (C-494/01), delay in moving to secure remediation in a timely manner may be characterised as failure on the part of Ireland to comply with its obligations under EU law. The obligation on emanations of the State (which include the Courts) to give effect to EU law and to make EU effective domestically in matters of environmental concern, where broad public interest considerations relating to conservation arise, is a requirement of pressing concern and will be afforded considerable weight in the exercise of discretionary powers. Whether and in what way delay impacts on the exercise of the court’s discretion to grant injunctive relief under the 1996 Act is not a straightforward question and requires careful consideration of a range of factors and the circumstances of each case but very heavy weight must at all times attach to the duty to give effect to EU law.

162. I have been referred to the recent Supreme Court decisions in Kirwan v. Connors & Ors. [2025] IESC 21 on an application to strike out proceedings for want of prosecution and/or delay. The Supreme Court decisions in Kirwan reiterate the need to advance litigation with expedition or at least without inordinate or inexcusable delay and refine the applicable test on a strike out application on grounds of delay. In Kirwan the preexisting Primor test was criticised on the basis that it proceeded on the assumption that an order dismissing proceedings was an interference with a right of access to the court and did not give sufficient weight to the fact that lapse of time alone is harmful to the administration of justice and should be a sufficient basis in itself for the dismissal of proceedings.

163. The Supreme Court in Kirwan laid down pointers in relation to periods of inactivity which would not be tolerated. Although the test is not mechanical, a four-year period of inactivity in terms of want of prosecution should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time. The Supreme Court has emphasised that it is not necessary to point to any factor of specific prejudice

- passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

164. The delay in question in this case is not confined to post-commencement prosecutorial delay since 2020 but also includes pre-commencement delay dating to 2013 when the Council admits it became aware of unauthorised infill activity at the site. This amounts to a total of almost twelve years delay in bringing on an application for a statutory injunction for hearing. Even allowing for the fact that this case is not dependent on oral evidence, by Kirwan criteria this timeline would warrant serious consideration being given to dismissal. It seems to me, however, that the principles pronounced in Kirwan can have no automatic or direct application in a case where ongoing non-compliance with measures designed to give effect to the requirements of EU law is demonstrated, as in this case.

165. The on-going nature of non-compliance with obligations on the State pursuant to EU law is a crucially important factor distinguishing this case from the type under consideration in Kirwan. These proceedings do not concern private, inter partes litigation, rather the Council in exercising its statutory powers is discharging a public law function to protect the environment in discharge of obligations on the State under EU and domestic law in respect of a continuing breach of environmental law.

166. Although the effectiveness of a delayed order requiring remediation may be undermined by delay and harm may have already been caused during the period of delay, if it is established that there is ongoing breach of environmental controls, then it seems to me that the ongoing duty on the State to enforce environmental controls supports the conclusion that the power vested under ss. 57 and 58 of the 1996 Act is not disabled by delay where breaches are ongoing.

167. While inordinate delay of the type apparent in these proceedings reflects very poorly on the Council and suggests that the concerns expressed by the Commission and reflected in the decision of the CJEU in Commission v. Ireland in relation to undue tolerance of unauthorised waste activities may not yet be historic concerns, I am satisfied that I should not refuse relief on delay grounds alone if environmental pollution is established as present and wrongdoing is continuing.

168. While delay simpliciter would not normally warrant the refusal of relief in the face of ongoing breaches of environmental law, as the facts of this case illustrate, the passage of time may nonetheless be an important factor in the exercise of discretion where environmental considerations change and evolve during the delay period. A real dilemma arises when a court is confronted with evidence that the remedial action sought

is likely itself to result in some environmental harm because of existing habitat established over the period of protracted delay.

169. It seems that in deciding on the exercise of powers under ss. 57 and 58 after an inordinate and inexcusable delay where harm is ongoing but remedial action itself is not without potential adverse consequences, the Court must consider where the balance of justice now lies, with the prevailing consideration being the remediation of environmental pollution caused by the infill works in a manner which best gives effect to the objectives of the 1996 Act and the underlying directives viz. the protection of environmental and conservation interests assessed with due regard to the prevailing environmental and conservation factors more than 11 years post infill works. This requires an evaluation of the facts and circumstances of the case as established in evidence and is this case requires consideration of competing evidence.

Competing Expert Evidence

170. In this case I have been urged by both sides to “follow the science” and to prefer one side’s scientific evidence over the other in circumstances where the experts make opposing recommendations.

171. In terms of the approach to be adopted to the assessment of competing expert evidence, I have been referred to the decision of Clarke J. in Donegal Investment Group Plc v. Danbywiske & Ors. [2017] IESC 14 where he relied on the decision of Charleton

J. in James Elliott Construction Limited v. Irish Asphalt Limited [2011] IEHC 269 to identify the proper role of a trial judge in assessing expert evidence. At para. 12 of his judgment in the Elliott case, Charleton J. stated:

“Every expert witness has to be evaluated on the basis of sound reasoning. An expert witness is, however, no different to any other witness simply because he or she is entitled to express technical opinions; all of us are subject to human frailty: exaggerated respect based solely on a witness having apparent mastery of arcane knowledge is not an appropriate approach by any court to the assessment of expert testimony. Every judge has to attempt to apply common sense and logic to the views of an expert as well as attempting a shrewd assessment as to reliability.”

172. In setting out the reasons why he preferred certain expert testimony over others in that case, Charleton J. went on to say that:

“Of these criteria, the most important reasons whereby I have chosen one expert over another have been the manner in which an opinion has been reasoned through and the extent to which opposing views have been genuinely and objectively considered on the basis of their merit. A judge must bear in mind that, notwithstanding that an expert may firmly declare a duty to the court, it is a natural aspect of human nature that even a professional person retained on behalf of a plaintiff or defendant may feel themselves to be part of that side’s team. Of particular importance in this case, therefore, has been the extent to which an expert has been able to step back and to consider and to think through an opposing point of view. As with demeanour, this is not readily demonstrated on a transcript of evidence. Rather, to a trial judge, it can be possible to see the degree to which a witness is thinking through the potential for an opposing theory before giving a reasoned answer. Experience in other cases demonstrates that there is a danger that experts may erect a barrier of apparent learning in order to disguise what would be an answer awkward to their side were it to be expressed plainly. Apart from the attractions of logic and reasoning, therefore, assessing an answer based on what is seen and heard in the courtroom remains important.”

173. While this extract refers to the way in which oral evidence is given, the way in which evidence is given is also relevant when it comes to affidavit or written evidence. In his judgment, Clarke J. endorsed the approach in Elliott whereby an important part in the assessment of any evidence was said to be the application by the trial judge of logic and common sense to the testimony. Where experts differ, a decision to prefer the evidence of one expert over another is likely to be influenced, to a much greater extent than might be the case in respect of factual evidence, by the rationale put forward by the competing witnesses.

174. In McKillen v. Tynan [2020] IEHC 189, O’Moore J. addressed the indicia or requirements of expert evidence having regard to legal principles established through caselaw with reliance on the dicta of Cresswell J. in “The Ikarian Reefer” [1993] 2 Llyod’s Reports 68. The principles cited by O’Moore J. (at para. 59) are:

“(1) The evidence of such witnesses should be, and be seen to be, independent and uninfluenced in form or content by the exigencies of litigation;

(2) Such witnesses should provide independent assistance to the court by way of objective, unbiased, opinion in relation to matters within their expertise and should never act as advocates;

(3) Such witnesses should state the facts or assumptions upon which their opinion is based, and consider material facts which could detract from their concluded opinion;

(4) Expert witnesses should make it clear when a particular question or issue is outside their expertise;

(5) If such witnesses consider that insufficient data is available, they should say so, and indicate that the opinion is provisional only; and

(6) If the witness is not sure that their report contains the truth, the whole truth and nothing but the truth, without some qualification, they should state that qualification in their report. If an expert witness changes his views on a material matter such change of views should be communicated (through lawyers) should the other side without delay and when appropriate to the court;

(7) Where expert evidence refers to photographs, plans, calculations analyses, measurements, survey reports or other similar documents these must be provided to the opposite party at the same time as the exchange of reports.”

175. Of these, O’Moore J. particularly emphasised principle (1), principle (2) and principle (4).

176. In the light of the foregoing authorities, the proper approach to the assessment of the differing expert evidence is on a common-sense basis and having due regard to the gaps in the evidence on either side. Guiding me in this approach in a case of this nature, however, is the overriding conviction that the evidence which most aligns with the best protection of environmental and conservation interests sought to be preserved by the 1996 Act and the measures it seeks to transpose should heavily influence the outcome on this application. It is also true that in this case I am confronted not so much with competing evidence in relation to matters of environmental concern but more competing recommendations as to outcome. This is because each side has adopted a distinct approach in arriving at their recommendations viewing the environmental concerns arising through different lens and from differing perspectives.

DISCUSSION AND DECISION

Triggering the Jurisdiction under ss. 57 & 58 of the 1996 Act

177. The Applicant must be taken to have been aware at all material times that his lands formed part of a candidate SAC. A candidate SAC is entitled to the same protections as an SAC (see C-258/11 Sweetman v. An Bord Pleanála which was codified into Irish law by a 2011 amendment to the Planning and Development Act, 2000 (as amended)). I do not understand it to be in dispute that the 2011 and 2019 Regulations and other domestic transposing measures giving effect to the requirements of the Habitats and Birds Directives have application to the Lands and arise for consideration where remedial works are contemplated on the subject lands. Since the refusal of his application for a declaration of exempt status under s. 5 of the 2000 Act in 2009 following on from earlier engagement with the NPWS, the Respondent could be under no illusion but that there were legal constraints governing further infill work on the Lands and that environmental concerns arose.

178. It has been established on the Council’s evidence (largely uncontested) that in full knowledge that this was being done otherwise than in accordance with a duly obtained permission, extensive, unauthorised infilling has occurred on the Lands. It follows that there has been a “disposal” as broadly defined within the meaning of the 1996 Act.

Section 39 of the 1996 Act clearly applies to all such disposals. In the absence of permission under s. 39, I am quite satisfied on the evidence, largely undisputed and in any event the subject of a guilty plea, that land reclamation works by way of infill were illegally carried out.

179. The inescapable conclusion in the light of compelling evidence in relation to enforcement action taken, not least in the form of service of repeat notices under s.55 of the 1996 Act while the work was ongoing in 2014, is that the Respondent finds himself in his current predicament because of wanton and blatant disregard for the law.

This fact is underscored by the Respondent’s guilty plea in the criminal proceedings taken against him and his conviction and sentence for same. It makes his invocation of environmental concerns now to resist relief on this application unpalatable and of dubious sincerity.

180. There is no evidence before me that the Respondent ever sought to regularise his position through application for a licence or permit allowing for in situ remediation of an illegal site involving the infilling of wetlands but not causing a negative impact as envisaged by the Code of Practice. This is telling, as is the fact that it forms no part of the Respondent’s defence of this application that he intends to apply for such authorisation. It seems to me that this can only be understood as an implicit acknowledgement of ongoing negative impact of the presence of infill on the Lands and knowledge that the presence of measurable ongoing negative impact bodes ill for the prospects of any licence application to permit in situ remediation.

181. I note that in the submission made on the Respondent’s behalf in response to a question from me, it appeared to be maintained that there is no requirement to obtain permission to continue to hold waste, following a conviction. This is not a legally sound submission. A licence would be required from the EPA in respect of any remediation which involves leaving waste infill in situ. The Respondent’s position that the material could be left on site without such a licence is untenable. By waste remaining in situ without permission under s. 39, the presence of this infill gives rise to an ongoing breach

of the requirements of the 1996 Act having regard to the definition of “disposal” under the 1996 Act.

182. The fact alone that s. 39 has been contravened and this contravention is continuing is sufficient for this purpose of establishing the Court’s jurisdiction to exercise powers under ss. 57 and 58. Accordingly, whatever the reason for the failure on the part of the Respondent to attempt to regularise his position by seeking consent to in situ remediation (be it ignorance or an acceptance of the futility of the application due to acknowledged negative environmental impacts or some other reason), I am now required to determine this application in circumstances where an unlawful infilling of wetlands has undoubtedly occurred and is continuing.

183. In addition to an ongoing breach of s. 39 which triggers my jurisdiction under ss. 57 and 58, I am further satisfied that by reason of illegal infilling there has been a loss of a protected lagoon/wetland habitat. While this loss is coincidental with a decline of Wigeon and other bird numbers and a clear, causative link between the loss of habitat and the actual decline in bird numbers has not established on the evidence, I have no doubt that it impacted adversely on Wigeon given its established significance nationally as Wigeon habitat by reason of the significant reduction in wetland and a loss in range, thereby constituting a risk to water and animals within the meaning of (a) of the definition of environmental protection in the 1996 Act. The Respondent in evidence adduced on his behalf did not address, still less rebut, the Council’s evidence in this regard.

184. Whether the decline in bird numbers is attributable to the loss of the wetland area or not, I am satisfied that the loss of wetland habitat within a candidate SAC / SPA constitutes “environmental pollution” in and of itself. These are clearly areas of countryside or of special interest which have been adversely affected coming within the meaning of (c) of the definition of environmental pollution provided in s. 5 of the 1996 Act.

185. Even absent sufficient evidence to establish that the decline in bird numbers was caused by the Respondent’s illegal actions, the environmental importance of the objective of maintaining wetland habitat is clearly established. Proof of actual impact on bird numbers directly attributable to the loss of wetland is not required for me to determine that environmental pollution has occurred and continues to occur consequent upon the Respondent’s unlawful activities.

186. In addition to impact on Wigeon and other waterfowl, environmental concerns relied upon in this application extend further to the question of an increased flood risk. The evidence in relation to an increased flood risk is outdated and no up-to-date evidence based on flood events since 2014 has been put before me by the Council. An increased flood risk is, however, established on the earlier evidence which remains relevant despite the passage of time. The Respondent adduces no evidence that the presence of infill does not lead to an increase in flood risk, relying principally on the fact that as he is maintaining the flaps on the causeway and they are now functioning, flood risk to the area is now better managed generally and there is limited evidence of flooding on his land, which is more low lying than surrounding land, since the infill is in situ.

187. While I am mindful that the potential impact of climate change on water levels upstream of this site could be an important consideration, this impact is not necessarily measurable by reference to what has already occurred over the past 11 years and the increased flood risk by reason of loss of capacity associated with climate change has not been addressed in any real or quantitative terms on the evidence before me. It is not a response that the tidal flaps are now functioning, when previously they did not.

Clearly, this alleviates a flood risk but it does not address the increased flood risk directly associated with the presence of infill and the consequential loss of capacity.

188. Given the risk established by the 2014 report, combined with the undeniable logic and force to the contention that it is likely that the infill works have exacerbated flood risks for neighbouring lands upstream, I find an increased flood risk established even absent quantification of the extent of the increased risks or evidence of specific flood events which would not have occurred but for the infill works. The failure on the part of the Council to further engage in evidence in relation to any actual adverse flood impact over the 11 years since infill works concluded does not negate the earlier evidence which is clear and makes sense. I am satisfied as a matter of common sense on the Council’s evidence that raising the land level is likely to give rise to an increased flood risk for areas upstream of the site, even when flood risk is mitigated by properly functioning tidal flaps on the causeway.

189. Although I have not been presented with evidence directed to confirming that the loss of wetland habitat is reversible, I accept, on the balance of probabilities and in the absence of contradictory evidence that given that the wetland was a man-made feature consequent upon the construction of the causeway, it is likely that it could be restored to its previous form. I also accept that a heightened upstream flood risk caused by infill would be remediated by the removal of infill. These factors weigh heavily in favour of directing the removal of infill in the manner sought by the Council, as consistent also with the EPA Code of Practice and proper enforcement of environmental law.

190. It is clear based on the foregoing that my power to make orders under ss. 57 and 58 of the 1996 Act is engaged and orders are warranted if necessary to ensure compliance with the requirements of the 1996 Act and in further discharge of EU law obligations.

The issue is not whether I have power to make orders in terms akin to those sought but rather whether I should exercise injunctive powers to make the orders sought upon a balancing of all relevant considerations. The onus is on the Respondent, however, to persuade me that the unlawful disposal of waste which has caused and is causing environmental pollution, as has been established, should not be the subject of an order directing remediation in accordance with law (Dublin City Council v. Eircom).

191. Insofar as I have flagged issues with the evidence as regards causation in this judgment, these issues only really come to the fore if or when it comes to weighing competing risk of environmental harm resulting from any court directed remediation where there is more than one viable option before the Court to address ongoing environmental harm or breaches of environmental law. In such circumstances, the quantification of risk to birds and the causative connection with a decline in numbers and the ability to reverse this trend and restore the bird population could be important for the purpose of assessing which of two options best achieves the objectives of the 1996 Act as a guide to the exercise of discretion under ss. 57 and 58. Similarly, an evidential deficit in substantiating the nature and extent of the flood risk could be a relevant consideration bearing on the exercise of discretion under ss. 57 and 58 where there are alternative remediation proposals before the Court in a manner which allows for weighing of competing environmental considerations.

Factors relied upon in Resisting Exercise of Discretion

192. Having established that the jurisdiction to make orders under both ss. 57 and 58 is triggered in this case, I must now decide whether it is proper to exercise that jurisdiction.

193. Several factors are identified on behalf of the Respondent as weighing against the exercise of the statutory discretion to grant injunctive relief. The primary issues identified are those of cost of the measures sought to be imposed, delay in seeking the relief pursued in these proceedings and the adverse environmental impact of the remedial measures sought, each relied upon as militating against the exercise of a discretion to make the orders sought. Of these three, for reasons which I will now explain, the last is that which has caused me the greatest concern and ultimately has caused me to tailor the orders I propose to make in a departure from the terms sought in the Notice of Motion. I will address each in turn.

Costs

194. The costs of the Council’s proposed works are potentially ruinous for all but the wealthiest person. Although there is no evidence before me as to the Respondent’s financial wherewithal, it is unlikely that he is one of those rare people who could carry a cost burden of this magnitude easily. Accordingly, I am prepared to accept that the costs are entirely out of proportion to the likely value of the land in financial terms and will result in very significant hardship for the Respondent if the works are ordered. I cannot go further than this without evidence of the Respondent’s financial situation.

195. Where the Respondent knowingly embarked on a course of action without the necessary consents following the refusal of a declaration that infill work was exempt development under s. 5 in 2009, it is established on the authorities that the prohibitive scale of remedial costs, no matter how ruinous, cannot be a basis for refusing relief (See in this regard Morris v. Garvey, Wicklow County Council v.

Fenton and Laois County Council v. Scully).

196. In this case, the Respondent persisted with unauthorised, entirely illegal works in the face of the planning and waste management enforcement proceedings pursued by the Council against him in 2013 and 2014. Not one but three s. 55 notices were served on him during 2014. The Respondent could have been under no doubt that his actions were unlawful. In the circumstances, the Respondent could not be entitled to any indulgence where, in consequence, he is now exposed to a very significant and onerous cost burden in properly remediating the effects of his wilful wrongdoing. Any other conclusion would not be in keeping with the “polluter pays” principle and the requirement to give effect to environmental protection measures.

197. Enforcement of environmental law protections must be effective. Brazen flouting of the law cannot be tolerated. If through persisting in behaviour knowing it to be wrong, the polluter creates such a massive cost exposure for himself that a court concludes he should not be required to carry out full remediation by properly undoing what he has wrongfully done, environmental protection law would be seriously undermined.

198. It is for this reason that the undoubtedly significant cost burden to which the Respondent is exposed if directed to carry out remediation works as sought by the Council could only become a legitimate factor in my decision on this application if measures are proposed at lesser cost which are equally capable or more effective in safeguarding the environmental and conservation interests of this special area. I have not been presented with an equally effective measure because the remediation plan the Respondent proposes does not envisage seeking and obtaining permission for in situ remediation. Accordingly, I cannot refuse the relief sought on costs grounds.

Delay

199. Unlike in Kirwan, there is no application to dismiss for want of prosecution or by reason of delay before me, albeit I am asked to refuse to grant the relief sought because of delay. In terms of delay, as already noted above, the evidence of inaction on the part of the Council in this case during extended periods is damning. It beggars belief that the Council waited from 2013 until 2020 to institute these proceedings and thereafter allowed them to remain in abeyance for several years. It is clear from the terms of s.

57(3) and s. 58(6) that the Legislature expressly envisaged the bringing of applications under ss. 57 and 58 contemporaneously with any criminal prosecution and the existence of a prosecution was no impediment to the bringing of an application. Although it was urged on behalf of the Council that it is common place for civil proceedings to be adjourned while criminal proceedings are ongoing and also that it was anticipated that the Respondent would engage in relation to remedial measures in the context of the criminal prosecution, these explanations or excuses cannot justify the extent of precommencement delay in this case in the face of flagrant refusal on the part of the Respondent to cease unlawful activity and ongoing failure to engage appropriately in relation to the remediation his wrongdoing.

200. There is no principle in law that a plaintiff should be debarred from pursuing a civil action merely because to do so might result in the defendant having to disclose its defence. The right to silence does not extend to the defendants as a matter of right in civil proceedings and might have to yield to the exigencies of the common good provided that the interference was proportionate. It is noted that in a decision in a preliminary action in Wicklow County Council v O'Reilly and Others (No. 1) [2006] IEHC 273, [2006] 3 I.R. 623 Clarke J. (as he then was) refused a stay on civil proceedings and an application for an adjournment where the defendants were the subject of criminal proceedings. Clarke J. was satisfied that significant weight needed to be attached to the importance of permitting a plaintiff charged with the enforcement of the civil regime for remedying environmental pollution to be able to obtain, in a timely fashion, whatever orders might be justified on the facts of an individual case.

What needs to be weighed against those considerations are the contentions on the part of the defendants as to the prejudice which might arise in respect of the criminal proceedings if civil proceedings are allowed to progress. No such weighing exercise could be conducted in this case because civil proceedings were not brought.

201. It is particularly striking that very considerable work was done during 2014, undoubtedly at considerable expense to the public purse. This work included serving site notices, procuring photographic evidence (including aerial photographs) together with expert reports on foot of site inspections and convening meetings with the

Respondent, coupled with the service of notices pursuant to ss. 55 of the 1996 Act.

Most of the material relied upon in commencing proceedings in 2020 was therefore available to the Council in 2014 and an identified issue with this application is that the evidence relied upon was so dated. Despite this, there was no meaningful follow through by the Council, as public authority with enforcement responsibility, contemporaneously with or proximate in time to the carrying out of the infill works.

202. It was not a proper discharge of statutory function under the 1996 Act (implementing the requirements of EU law) for the Council to wait so long to bring this application.

Where it was apprehended that the civil proceedings might prejudice rights in a criminal trial, an adjournment application could have been brought and applications to casemanage the proceedings with a view to minimising delay could have been made. The existence of criminal proceedings was no impediment to the initiation of this application and the hope that the Respondent might engage did not justify failure to exercise powers available to enforce environmental protection law in a far timelier manner, particularly in view of his very poor compliance record from which it ought to have been clear that the Respondent was unlikely to voluntarily remediate the Lands by removing the infill. Nor was this an outcome that could have been achieved through the criminal process save by acquiescence on the part of the Respondent.

203. It is unfortunate that the commencement of proceedings coincided with the onset of Covid-19 restrictions, but those restrictions were eased several years before any attempt was made to reactivate these proceedings and there has been no reasonable explanation or justification for delay between 2021 and 2024, a period of some three years. It is noted that the reactivation of the proceedings in 2024 coincided with a site inspection which disclosed new, additional material on the Lands in apparent contemplation of yet further infill works. It is reasonable to infer that this further evidence of indifference to legal restraints on the part of the Respondent would have reinforced the Council in a view that something beyond a criminal conviction was needed to ensure a cessation of the Respondent’s unlawful infill activity. Nonetheless, the inertia which has dogged these proceedings is both unpalatable and inexcusable.

204. While this case is not dependent on oral evidence, of its nature an application for injunctive relief under the 1996 Act warrants expedition. The delay in question here is

not confined to post commencement delay at issue in Kirwan but includes precommencement delay dating to 2013 when the Council admits it became aware of unauthorised infill activity at the site. This amounts to a total of almost twelve years delay in bringing on an application for hearing.

205. Crucially, however, this application concerns a continuing breach of waste management law. It is of real significance that the Council in exercising its statutory powers is discharging a public law function to protect the environment in discharge of obligations on the State under EU and domestic law which continue to apply and which continue to be contravened. Accordingly, while proceedings of the type envisaged under ss. 57 or 58 of the 1996 Act, of their very nature, should be moved with all due expedition which effective protection of the environment mandates, as explained above, a failure on the part of the Council to do so will not result in the mechanical refusal of relief on delay grounds. Delay alone, without evidence of real prejudice, is unlikely to ever outweigh the obligation on the State, which includes the Court, to give effect to EU and domestic environmental controls.

206. Delay alone could not defeat an application of this kind in the face of established ongoing environmental pollution absent very special circumstances, even though expedition and good administration are also core elements of the right of access to the courts under EU law.

207. While inordinate delay certainly reflects poorly on the Council in terms of the effectiveness of its enforcement of planning control, when it is established, as it has been in this case, that environmental pollution has been caused and breach of environmental controls is ongoing and where no prejudice to the Respondent has been established consequent upon Council delay, the Court’s power to grant injunctive relief in discharge of obligations on the court as an emanation of the State and as a remedy afforded through the domestic courts in furtherance of EU law, is not disabled because the Council failed to bring the proceedings more quickly in this case. There is no evidence of special prejudice to the Respondent arising from delay and there is no basis for refusing relief sought because of the impact of delay on the Respondent.

208. There could nonetheless be a real significance to delay, even in a case of this nature involving ongoing breach of environmental law, where the environmental considerations which the law strives to protect have been impacted by the passage of time. Thus, the passage of time could become an important factor because in consequence a new status quo prevails. It is to this question of the current status quo, a status quo which after almost twelve years of waste infill in situ may involve bats and otters and a consideration of their protected status and invasive species warranting special control measures, that I now turn.

Consideration of Adverse Environmental Impact of the Remedial Measures

209. It is established that where environmental pollution has been caused by an unlawful disposal of waste and pollution is continuing, the starting presumption is that the waste should be removed. It is apparent from the EPA Code of Practice that this starting position is informed by international best practice and conventional wisdom. The presumption is only displaced if retaining waste on site would provide better environmental protection than removing it (Brownfield Restoration Ireland Limited v.

Wicklow County Council).

210. While the Council’s focus in evidence has been retrospective, displaying only limited engagement with the protection of the currently existing habitat and deferring this issue to a future A.A. process, I have concluded that I must prefer the Council’s evidence to the Respondent’s when it comes to remedial measures. This is because it is manifest that the Respondent has adopted a selectively narrow, prospective approach which fails to engage with the ongoing harm caused by the presence of infill and the need to secure permission for same in accordance with the requirements of the 1996 Act if it is to remain in situ. Nor does the Respondent’s evidence address the effectiveness of measures proposed in the detail of the OCM Remediation Plan to mitigate against risk of harm or consider what measures might be taken to mitigate against harm to identified otter and bat in the event of remediation being ordered.

211. To refuse relief on the Council’s application in this case, it is for the Respondent to persuade me that detrimental impacts of removing the waste exceed those occasioned by leaving the infill in situ. The Respondent cannot discharge this burden without

engaging with the fact that infill is on the Land in breach of the requirements of the 1996 Act, can only be permitted to remain with a Licence or permit from the EPA.

212. For a meaningful exercise to be conducted whereby different remediation options are considered to see whether the objectives of the 1996 Act can be better achieved by the means advocated by a respondent or the local authority, there must be viable/legal alternatives before the Court. In this case, this means a viable alternative to remediate by leaving waste in situ which affords at least equivalent environmental benefit to the remediation by removal option that the Court could properly exercise discretion to refuse the relief sought in line with the purpose and objectives of the 1996 Act. It is fundamental to the 1996 Act, however, that the holding of waste be pursuant to licence.

Any remediation proposal considered by me, to be viable, must be otherwise compliant with obligations imposed under environmental law. A proposal to remediate by leaving waste in situ without obtaining a licence from the EPA and complying with the conditions of any such licence is not a viable proposal.

213. I am not prepared to consider as an alternative remediation proposal a plan which does not envisage in situ remediation under a licence/permit from the EPA and in accordance with the conditions attaching to any such licence/permit. Simply ignoring ongoing breach of environmental control is not an option I can properly countenance as an appropriate remediation measure justifying the refusal of the injunctive relief sought notwithstanding ongoing breaches of environmental law. Indeed, all the issues identified as weaknesses in the Council’s application and as an impediment to the proper exercise of discretion by directing remediation by removal, namely, the costs, the passage of time and evidential deficits as to environmental assessment, carry little weight in the exercise of my discretion where I am satisfied that the remedial orders sought are warranted because environmental pollution and breach of s. 39 has occurred and is ongoing, unless there is a viable proposal for in situ remediation which is at least equivalent in terms of environmental protection.

214. The options in this case are stark. What is required is either removal subject to such conditions as may be applied to safeguard the environment in the process of removal or, alternatively, permission to leave in situ in accordance with law subject to conditions of the permission granted. The Respondent’s proposal is put before me on the basis that I should accept as adequate remediation the minimal terms proposed without a permit from the EPA authorising waste to remain in situ being obtained in lieu of the Council’s proposal that the unlawfully disposed of waste material be removed and the Lands restored.

215. In my view, the Respondent’s proposal is not a tenable remediation plan because it requires me to tolerate ongoing unlawful activity which I could only do if I had no other option at all. As there is no tenable proposal before me on behalf of the Respondent to apply for a licence so that in situ remediation may take place in keeping with the proposal advanced on behalf of the Respondent, I have only been presented with one potential remediation option. The reality in this case is that I must determine this application in circumstances where the Respondent has raised environmental concerns substantiated by credible evidence in relation to the Council’s remediation plan but has not proposed an alternative plan for remediation by leaving the waste in situ. I consider that the absence of an alternative plan for in situ remediation reduces considerably any discretion I may otherwise have under ss. 57 and 58.

216. Where there are two viable alternatives, an assessment of the environmental impact of taking the proposed remedial measures, which may be impacted by delay, compared with that of any counter proposal, would be warranted to determine which ensured a better environmental outcome, thereby informing the exercise of discretion under ss.

57 and 58 in lines with the objectives and purposes of the 1996 Act and the measures it seeks to transpose. Were there an alternative plan available on the case presented on behalf of the Respondent, a proper exercise of discretion could therefore require consideration of the impact of the respective remediation measures to ascertain whether the Respondent’s proposal better achieved the objectives of the 1996 Act thereby obviating the necessity for orders in terms sought on behalf of the Council. This could entail a consideration of whether remediation by removal, which may have been appropriate in 2014 or even 2018 is now less appropriate in the face of a viable in situ remediation plan and having regard to the evidence of likely negative impact on habitats established on the Lands in the intervening years of proceeding with the Council’s proposal such that the relief sought by the Council should be refused. Afterall, these early remediation proposals were developed at a time when environmental considerations on site were different.

217. When regard is had to what can only be described as weighty, if selectively narrow, ecological evidence advanced on behalf of the Respondent in respect of evolution of habitat at the site since 2014, including the presence on site of protected species such as otter or bat, several questions bearing on the proper exercise of my discretion under ss. 57 and 58 would come into sharp focus, if a legal alternative to removal whilst ensuring respect for environmental law were available. Specifically, were there an alternative, viable/legal proposal which could achieve the objectives of the 1996 Act, the following issues would be amongst matters which might arise for consideration in deciding whether to exercise a discretion to refuse the form of relief sought by the Council:

i. the extent to which harmful effects of past unlawful activity are reversible, ii. the nature and extent of ongoing harm occasioned by this unlawful activity;

iii. whether additional or further harm will be occasioned by remedial actions sought to be directed and, if so, the nature and extent of same;

iv. how the benefits in terms of restoring wetland features by the removal of infill measure in comparison with the risk of further or new harm occasioned by remedial actions sought to be directed.

218. In such a scenario, the evidence before me would not be entirely satisfactory in assisting me in answering these questions. The Respondent has elected in his expert evidence to ignore the specific mitigation measures (e.g. silt curtain) identified in the OCM Remediation Report which are intended to mitigate risks of the kind identified on behalf on his behalf. For the Court to elect as between two potential remediation options, it would require evidence as to why these mitigation measures will not be effective if asked to conclude that the proposed process carries disproportionate risks which warrant refusal of the orders sought. In the approach taken in response to these proceedings, the Respondent does not discharge this burden. There are imponderables in the Council’s remediation plan too and it is now acknowledged that there is a requirement for screening for A.A. in the first instance with the not unlikely consequence of a further requirement for a full A.A. and possible further requirements including Habitats Regulations Derogation Application (H.R.D.A.), Environmental

Impact Assessment (E.I.A.) and planning permission before this remediation plan could be given effect to.

219. In deference to the submissions made regarding the proper approach to the assessment of evidence and I see the evidence in this case not so much as conflicting but as partial and incomplete. Both parties have proceeded on a particular path. The Council has deferred full consideration of the impact of the proposed measures on the changed, existing habitat until an A.A. process conducted in the context of court orders. The Respondent has not engaged at all with the reality that in situ remediation could only ever be accepted as an alternative to removal if it had the benefit of a permit/licence from the EPA which he has never sought and apparently does not propose seeking, perhaps because impact of infill remaining in situ in terms of loss of wetland and increased flood risk is impossible to present as other than negative.

220. To be fair to the Council, whose inactivity has attracted heavy criticism in this judgment, its’ approach in the presentation of evidence which does not assess impact of its proposed remediation by removal on the existing habitat needs to be viewed in the light of the fact that no real, alternative plan for in situ remediation has been proposed such as might give rise to a requirement to compare two alternatives before deciding whether to order the remedial measures sought by the Council. In the absence of an alternative proposal, once I am satisfied that remediation orders are warranted because of ongoing breach of environmental law and negative environmental impact, as I am, then requirement for a consideration of whose evidence I prefer in terms of the environmental merits of remediation by removal versus in situ remediation does not arise because other things are not equal. The Respondent has not obtained and does not propose seeking permission for in situ remediation. Absent same the Respondent’s proposal would leave him in continuing breach of waste management law, an untenable proposition which could not justify me in refusing the relief sought by the Council.

221. The Respondent wishes to leave infill in situ without applying for necessary permission and without addressing the ongoing impact of leaving waste in situ on the decline in bird numbers, all the while unconvincingly denying a heightened flood risk upstream of the site. Given the approaches taken in evidence, I have concluded that there is no requirement for me to now prefer one over the other as part of a balancing

exercise whereby it is necessary to explain why I prefer that evidence. This is because the Respondent’s plan is patently not a viable one as it does not contemplate at all the need to obtain permission from the EPA for the in situ remediation which would be entailed were the remediation proposal developed on the Respondent’s behalf to be pursued.

222. This does not mean that I am satisfied that it is appropriate to make the Order sought by the Council in an outright fashion or that the Respondent’s ecological evidence that additional or further harm may be occasioned by remedial actions which the Council requests me to direct is without significance. The ecological evidence adduced on behalf of the Respondent is such as to demonstrate a risk that an order directing removal in the terms sought on behalf of the Council could in turn be incompatible with EU law.

The Council’s initial response to ecological concerns associated with removal went little further than maintaining that the harm done now would be less than the harm done originally by the Respondent’s unlawful actions and mitigation measures, such as the suggested silt curtain and staged, monitored works, are available to reduce risk. In response to concerns in relation to the newly established habitat on site arising from Ms. Devereux’ belated report (including otters and bats), the Council offers me only the reassurance that these concerns will be addressed during an A.A. assessment which will necessarily precede any remediation works. The inference from this position is that these issues need not trouble me.

223. It concerns me, however, that that in proceeding on foot of old evidence, the Council may not have properly addressed its mind to the most appropriate form of remediation in environmental terms considering changes on site over time. As I understand their position, the Council seeks full orders to direct works which may result in unlawful interference with existing habitat and may not ultimately be permissible in law by reason of changed circumstances over time. As already noted, works impacting on the breeding sites or resting places of species such as otter or bat, are only permitted under derogation licence pursuant to the European Union (Birds and Natural Habitats)

Regulations, 2011 (as amended) with the result that it cannot be assumed that permission for remediation by removal will be forthcoming. The Council seeks these orders now notwithstanding these unknowns relying on the fact highlighted in response to an articulation of my concerns that the remediation it proposes will be subject to an assessment process and is likely to require full A.A. and planning permission in a manner which ensures that environmental risks associated with remediation by removal will be carefully considered. It might be inferred from this, but was not convincingly stated on behalf of the Council, that permission for remediation works would be refused by the relevant authorities should associated adverse environmental impact warrant refusal notwithstanding the making of a court order directing remediation in the terms sought.

224. Thus, the Council seeks a direction that infill be removed without the impact on current habitat (including otters and bats) of such removal yet having been considered and without knowing whether the necessary consents will be given for their proposed course of action in view of environmental risks occasioned by the remedial steps proposed. This does not seem to me to be a sound platform for making final orders of the type sought given the remaining areas of uncertainty.

225. To be clear, my concern is that were I to direct remediation in the terms sought in the Notice of Motion, the effect of the Court order might be construed as bypassing the safeguards of A.A. and the necessity to secure appropriate consents. While the Council now refer to an A.A. screening process as a preliminary to any remedial action taking place, I found there to be a lack of clarity in the Council’s submission as to what consent process would be required were the Court to direct remediation works. I note in this regard that in Brownfield Restoration Ireland Ltd and Dean Waste Co Ltd v Wicklow County Council (No. 2) Humphreys J. was not persuaded that work entailing the removal of waste as ordered by the court required a licence. On the question of whether remedial works necessitated and E.I.A. or A.A., Humphreys J. held that this may depend on the nature of the court order (see para. 81). He found that an order involving immediate and urgent removal of waste is enforcement of the Act to prevent environmental damage and on a purposive interpretation does not require to be delayed pending assessment. He acknowledged, on the other hand, that long-term works, involving for example landscaping or storage of inert waste, may necessitate E.I.A.

and/or A.A.

226. It would be surprising to me that if a derogation licence or other consent involving E.I.A. or A.A. would be required to interfere with the site by removal of infill absent court order, that the fact that a court order was made could circumvent these requirements, but it seems to me that this could be the possible effect. As I see it, I have no function in deciding on applications for consent. I have already recorded concerns arising from evidential deficits which make it difficult for me to conduct a risk benefit analysis of removal with safeguards versus remediation in situ should remediation in situ be permitted. Decisions on licenses, permissions and derogations are taken by public authorities with the necessary expertise to require appropriate investigations and determine the conditions to be applied to the grant of consent. These important processes should not be bypassed by me through the terms of injunctive relief ordered by me unless there is a sound basis for doing so arising from a demonstrated legal necessity. It seems to me, however, that there is scope for ambiguity as to the effect of any order I might make and its consequence for any requirement to otherwise obtain permission following appropriate assessment for proposed works.

It is my firm view that if development and other consents are required for the work the Council requires by way of remediation, then these consents should be obtained and their conditions complied with. Equally, if there is a requirement to obtain development consents and/or derogations following further assessment as a precursor to carrying out remediation works, the possibility that such consents may not be forthcoming should not be overlooked by me when making orders under ss. 57 and 58 of the 1996 Act and I should not make orders which are futile or the enforcement of which could be incompatible with EU law. Accordingly, I am not prepared to make final orders without first knowing that the work to be ordered can be lawfully carried out through the procurement of the necessary consents on foot of such assessments as would normally be required in accordance with the requirements of EU law.

227. Recognising my concerns in this regard as articulated during the hearing, the Council maintained in submissions that the requirement to seek authorisation or permission of was “baked into the proposal from the start” (Transcript, Day 3, p. 112). It is true that one of the orders sought in the Notice of Motion is an order, if necessary, requiring the Respondent to carry out all such assessments that are required by law in giving effect to the orders directed by the Court.

228. There are several advantages to a staged approach as I see it. Firstly, it would entail further assessment of any environmental impact of proposed measures in a manner which avoids the risk that because the court has made an order, proper assessment is not conducted on the assumed basis that because works are authorised by the Court further permission from the appropriate authorities is not required. Secondly, it would allow clarity as to whether permission for the proposed works will be forthcoming before the Court makes an order requiring those works. If it was to transpire that the remediation measures identified in the OCM Plan are not authorised, a requirement to consider alternative remediation measures would arise.

229. It was protested on behalf of the Respondent that a staged approach which I now favour should not be directed by me as this was not the relief sought on the Notice of Motion. It was argued instead that the Council had failed to prove an entitlement to the orders sought in the Notice of Motion and therefore relief should be refused.

230. I do not consider the Respondent’s objections to a staged process to be well founded.

While the Council’s approach certainly evolved from its staring position of seeking final orders, the Council’s general approach, even in advance of the motion coming on for hearing and in response to the raising of ecological concerns by Ms. Devereux, has been to contend that in directing far-reaching remedial works which may impact on existing habitats, I can be satisfied that any harm caused by such remedial works is likely to be less than the harm caused by the original infill works ending in 2014 because these works will be carried out under supervision, following screening for A.A. and likely requirement for second stage assessment and in accordance with mitigation measures as advised by experts to be retained. Accordingly, a staged process has been explicit in the Council’s approach in response to the Devereux Report and it was at least implicit before that.

231. Furthermore, there is good precedent for adopting a staged approach. It is recalled that when issue was taken in Cork County Council v. O’Regan with the fact that the refined relief pursued as an initial order when the matter came on for hearing had not been sought in the Notice of Motion, Clarke J. rejected these arguments on the basis that the Court has a very wide discretion. In making the initial order directing the commissioning of an investigation report, Clarke J. stated that a report of the type

contemplated was a necessary preliminary to the court being able to fashion a proportionate order designed to achieve the objectives of the 1996 Act and that such initial order was encompassed in the proceedings as being a necessary step towards making specific orders designed to ensure that the waste concerned is no longer (whether by removal, remediation or part one and part the other) such as to give rise to a risk of environmental pollution.

232. In line with authorities such as Brownfield Restoration Ireland Limited v. Wicklow County Council and the EPA Code of Practice representing best international practice, my starting position in terms of the relief to be granted on this application is that all waste should be removed unless retaining waste on site is viable (as in lawful) and would provide better environmental protection. I should only move from this position if retaining waste on site is lawful and has been shown to provide better environmental protection than removing it. It has not been necessary for me to decide whether leaving waste in situ would provide better environmental protection because there is no proposal to do so in accordance with the terms of a permission from the EPA. Such permission would be necessary in my view for any real consideration to be given to the Respondent’s proposal. I cannot refuse relief based on a proposal to continue to flout the law.

233. On the authority of Cork County Council v. O’Regan, I am satisfied that it is appropriate in the circumstances of this case to adopt a staged approach. In my view a staged approach is a necessary step to permit the crafting final orders which best achieve the objectives of the 1996 Act and underlying Directives and properly balances the duty and benefit to the Respondent against the environmental and ecological rights of the public, particularly where the possibility that the effect of removal or remedial works might themselves cause environmental pollution by disturbance is established.

Adopting a staged approach is appropriate as I understand that the remedial measures the Council asks me to direct are of a nature and extent that is likely to require consent from relevant public authorities. It is also anticipated that on foot of application for requisite consent, a requirement for A.A. is likely to be triggered following initial screening.

234. Where there is a real basis for believing that development consent is required for the remedial measures which the Council urge but the evidence substantiates a concern that such consent might not be forthcoming, it seems to me that the better way for me to proceed is to ensure all necessary permissions and consents have been obtained, following such assessments as are required by law, before making final directions in respect of remediation to be carried out. Any required development consent is, in my view, a necessary preliminary step to directing remediation works in accordance with any such consent in view of the ecological concerns substantiated on the evidence before me.

235. Proceeding in a staged manner by requiring that any necessary development consent is obtained as a preliminary step ensures both a properly informed exercise of my discretion on this application and that environmental risks associated with performing the remediation works sought by the Council in line with the OCM Remediation Plan

(2018) have been considered and an expert body (or bodies) has/have determined that they are not such as to result in a level of harm which cannot be justified by the benefit of removal in accordance with law.

236. I am satisfied that after a delay of more than 11 years and in the light of a changed status quo on site involving new habitats and protected species, that no remedial action should be directed by me without first requiring the Respondent to make application in terms agreed with the Council for such consents as are required by law for the remedial plan which the Council wishes me to direct.

237. Where, following A.A., all necessary consents have been obtained and the proposed remedial measures are sanctioned following due consideration of the environmental impact of the proposed measures by the appropriate authorities, I propose to direct specific remedial action directly aligned to the terms and conditions of applicable consents or permissions, should a court order in this regard remain necessary.

Presuming all necessary development consents are obtained, I consider that there would at that point be no impediment to me exercising my discretion to direct the remediation sought by the Council, unless a viable and equally effective alternative were by then presented on behalf of the Respondent. A viable alternative is one necessarily based on a permitted in situ remediation on foot of a licence from the EPA.

238. It is a matter for the Respondent whether, in conjunction with court ordered steps in relation to the OCM Remediation process, he takes the opportunity to voluntarily pursue the question of in situ remediation in tandem. Were permission for in situ remediation to be forthcoming, at that point further submissions could be made as to whether the OCM Remediation proposal (presuming permission for same were also granted) or the in situ remediation process better achieved the objectives of the 1996 Act as I would not have yet made final orders.

239. An advantage of the staged process I now propose as I see it is that should the outcome of such A.A. or E.I.A. or other process as may be required in the context of the preparatory stage of the OCM Remediation Plan result in a refusal of consent for such remediation, then I would have an opportunity to consider directing alternative remediation works in circumstances where I could not be satisfied to simply do nothing in this case. Should this happen, proposals as to alternative measures directed to ensuring that harm done and continuing is remediated to the greatest extent possible, appropriate and lawful would need to be presented to me. In this scenario, I would need to consider the evidential support for alternative suggested remediation measures and both parties would have a right to be heard further.

CONCLUSION

240. For the reasons given above, I have concluded that in deciding on the form of remediation I direct in this case, I should adopt a staged approach in making orders pursuant to ss. 57 and 58 of the 1996 Act requiring the removal of waste, the restoration of the Lands, the mitigation or remediation of the effects of unlawful waste activity and the discontinuance of unlawful holding of waste. This avoids a risk of making an order requiring works to be done in a manner which might potentially result in a breach of EU law, which I should not do.

241. As noted above, it seems to me that there was some confusion between what might properly be described as “Preparatory Works” and “Main Works” in the OCM Remediation Report. The presentation of an application for permission does not feature

as part of the envisaged “Preparatory Works” other than with regard to the removal of Japanese Knotwood (which it is noted requires prior approval of the NPWS) and while some features of what has been identified may be required as a part of presentation of a comprehensive application (e.g. baseline monitoring, commitments to appoint experienced earthworks contractor, details in relation to proposed haulage routes, proposals for site supervision during works, etc.), other elements appear to relate to the actual conduct of the remediation work. As a result, I will now require the parties to agree a schedule of precisely what works are required in a first stage.

242. The first stage as I envisage it involves the submission of a coherent, complete and comprehensive application for any permission, consent, authorisation, derogation or other form of lawful authority as may be required to carry out the remediation by removal in the manner envisaged by the OCM Remediation Plan. To secure necessary consents, carefully prepared applications are required and the Council will need to have an oversight role in this regard so that it can be satisfied that the Respondent does not wilfully sabotage the prospects of success of application for permission to carry out remediation works envisaged under the OCM Remediation Plan by making a substandard application or a failure to co-operate in the process.

243. In a first stage, I will therefore direct all preparatory works necessary for the presentation said coherent, complete and comprehensive applications for all necessary development or other consents or derogations required to permit remediation measures (to include, to the extent required, Appropriate Assessment (A.A.), Habitats Regulations Derogation Application (H.R.D.A.), Environmental Impact Assessment (E.I.A.) and planning permission), in terms identified in the OCM Remediation Plan to take place in accordance with law. It will be necessary for the Respondent to comply with the Council’s specifications in relation to the constituent elements of those applications to ensure that the applications are properly presented. I will incorporate the said specifications in the form of my order, if necessary. The said applications will require to be advanced in accordance with a timetable which I will fix, with liberty to apply in the event of any unforeseen difficulty.

244. If a schedule and timetable cannot be agreed, I will hear the parties as to their respective positions before making any necessary directions.

245. Having made these directions (be they by agreement or otherwise), I will adjourn these proceedings to allow the application(s) for permission to be progressed.

246. Presuming all necessary consents are forthcoming, the matter will be relisted before me for such further directions as may be required to ensure that permitted works are completed in accordance with such conditions as may have been imposed by the appropriate authorities.

247. If at that stage there is a viable, alternative proposal for in situ remediation on foot of a licence from the EPA, I will afford both parties an opportunity to adduce evidence and hear submissions as to which proposal most effectively achieves the environmental objectives pursued by the 1996 Act and under EU law. I stress that I am not directing such an application which is entirely a matter for the Respondent and his advisors and is one to be pursued at their own election cognisant that it will lead to additional costs and ultimately any such proposal might not find favour with the Court, even if permission for in situ remediation were to be granted, as my focus then will remain on which approach best achieves the objectives of the 1996 Act in circumstances where there are two viable options.

248. Alternatively, if required consents are not forthcoming for the remediation proposals advanced whether at my direction or otherwise, these proceedings will then be relisted before me for consideration of the best alternative remediation measures then available.

This may require affording the parties an opportunity to present evidence upon which to ground an order directing an alternative remediation plan.

249. In the first instance, the timing of delivery of this judgment should allow the parties a sufficient opportunity to prepare a draft timetable for a staged process to form part of an interim order. The proceedings will be listed before me at the start of next term to allow for the making of initial orders and directions to ensure the progression of remediation works. Where a timetable has not been agreed, I will hear the parties at that stage and before deciding on the terms of the court’s interim directions. Any other consequential matters requiring court order may be addressed at that point also.