High Court rules waste facility operator must remove all waste and equipment from Wicklow site
Published 29/10/2015 | 16:16
The operator of a waste management facility must take steps to remove all waste and equipment from the site in Rathnew, Co Wicklow, the High Court ruled.
Stan O'Reilly, who operated C&D Recycling, had claimed the plant did not require planning permission as the site was previously used for solid fuel bagging and grain storage.
It was argued the collection, sorting and recycling of construction materials came within the definition of "industrial process" contained in regulations dealing with exempted development.
Wicklow Co Council disagreed and took enforcement proceedings against him.
In July last year, the Circuit Court held there had been an unauthorised material change of use.
However, the court refused to order Mr O'Reilly remove all waste and equipment from the site on grounds that the council had revoked his waste permit during the currency of the court proceedings, thereby depriving the court of the power to direct an orderly winding down of activities at the site.
The council appealed that aspect of the Circuit Court decision.
Today in the High Court , Ms Justice Iseult O'Malley said she did not accept the argument on behalf of Mr O'Reilly that it was now "out of his power" to remove the material and equipment from the site. It had been argued that because his lease from the owners had ended and he would not be able to enter the site except as a trespasser.
Ms Justice O'Malley said she found it hard to imagine the owners, the Stafford family, would prefer to keep the site in its current condition rather than co-operate with its remediation.
She also rejected the suggestion Mr O'Reilly cannot afford to carry out the removal as this was not supported by the evidence as to his means and current occupation.
She said she would make an order that he remove the material and equipment but, given the lapse of time since the court proceedings began, she asked the parties to put forward a realistic timetable for the works with a view to incorporating it into her order later.
She also ruled that because Mr O'Reilly did not appeal the refusal of a declaration that the plant was exempted development, the court could not accede to the argument that no planning permission was required for his business. The Circuit Court was correct in finding it was unauthorised development.
In her judgment, Ms Justice O'Malley said in July 2006 the council granted a waste management permit to Mr O'Reilly for the premises. Later that month, a complaint alleging unauthorised use was made and an investigation was commenced by the council.
In 2009, Mr O'Reilly applied for a declaration (under Section 5 of the Planning and Development Act 2000) that his "recycling activity" was exempted.
However, the council determined it constituted a material change of use from the previous established activity on the site. That decision was not appealed or challenged by Mr O'Reilly, the judge said.