Brownfield Restoration Ireland Ltd v Wicklow County Council (Approved)

Factual and Procedural Background

This case concerns a large illegal dump at a quarry site in West Wicklow, which began operating around 1979 and is possibly the largest in the State's history. Over 44 years, the situation has generated at least five sets of proceedings and 22 years of litigation, with numerous judgments, this being the eighteenth. The court had fixed a remediation period of six and a half years ending in January 2024, during which no significant waste removal has occurred despite orders requiring such remediation.

The site includes a candidate Special Area of Conservation near a river supplying drinking water. The local authority, under middle management, contributed to the dumping from 1979 to 2001, including hazardous waste. Complaints dating back to 1989 were ineffective until senior management "discovered" the dump in 2001 and attempted closure, though waste dumping continued on that day.

European Commission enforcement action began in 2001, culminating in a 2005 ruling by the Court of Justice of the European Union (CJEU) that Ireland failed to comply with waste directives concerning nearly 100 illegal sites, including this one.

The current landowner brought enforcement proceedings against the local authority in 2008, seeking remediation. The local authority had previously initiated proceedings against other alleged polluters and had also conducted a flawed remediation effort, leaving 93% of waste on site. The council's remediation approach was criticized as "bonsai" and "botched," and it failed to comply with environmental impact assessment requirements.

Subsequent litigation addressed various issues including the scope of remediation, timelines, costs, and appointment of an independent expert. The court has issued multiple judgments directing remediation, approving plans in part, and managing procedural steps. The present judgment deals with the terms of engagement of an independent expert to assist the court in overseeing remediation efforts.

Legal Issues Presented

1. Whether and on what terms an independent expert should be appointed to assist the court in ensuring full remediation of the illegal dump site.
2. The scope and powers of such an expert, including the extent of their involvement and authority.
3. The procedural mechanism for instructing the expert and managing communications between the parties and the court.
4. Allocation and management of costs related to the expert and associated proceedings.

Arguments of the Parties

Applicant's Arguments

• The expert should be appointed to independently verify the volume of waste and soil removed and assess the remediation plan's adequacy.
• The expert's brief should be intermediate in scope—focused on disputed matters and those where court assistance is needed, rather than narrowly limited or overly broad.
• The expert should have powers to request information and inspect the site but not invasive powers at this stage.
• The expert should report flexibly as directed by the court, including interim and final reports.
• The costs of the expert and reasonable costs of the applicant cooperating with the expert should be paid by the council.
• The applicant should have liberty to apply for costs or payments on account as needed.
• Concerns were raised about potential bias if the council instructs the expert, but the applicant acknowledged the official nature of the council's law agent and the professionalism involved.

Council's Arguments

• The council did not oppose the principle of appointing an expert or the intermediate scope of the expert's brief.
• The council objected to vague or potentially invasive powers proposed for the expert, preferring a more restrained approach at this stage.
• The council advocated that the expert be instructed via its law agent, facilitating orderly communication and oversight.
• The council accepted responsibility for paying the expert and managing the logistics of filings and affidavits.
• The council sought to limit open-ended cost obligations for the applicant, preferring liberty to apply on a case-by-case basis.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reasoned that appointing an independent expert is necessary to assist with the complex remediation issues where parties disagree and to ensure the remediation plan achieves the court's objectives for full site remediation. The court preferred an intermediate scope for the expert's engagement, allowing flexibility to address disputed matters without continuous or overly broad involvement.

The court considered the powers of the expert and found that no broad intrusive powers are needed at this stage; cooperation from parties should be voluntary, with the court available to intervene if non-cooperation arises. The court emphasized the ability to revisit powers or orders as circumstances develop.

Regarding instruction of the expert, the court accepted the council's law agent as the appropriate conduit for instructions and communications, noting the official and professional environment reduces risks of bias or undue influence. The court rejected the applicant's proposal for direct instructions by its own solicitors as impractical and unnecessary.

On reporting, the court favored flexible reporting schedules directed by the court rather than rigidly prescribed interim or final reports. Cost arrangements were confirmed with the council responsible for payment of the expert and reasonable applicant costs, subject to liberty to apply for further orders as needed.

The court highlighted the importance of continuing remediation progress without delay, regardless of pending procedural matters or timeline adjustments.

Holding and Implications

The court ORDERED as follows:

• An independent expert shall be appointed to report as directed by the court on matters arising in the proceedings, particularly to ensure the remediation plan meets the court's orders for full site remediation.
• The expert shall be instructed through the council's law agent, who will also communicate queries and reports to the court and applicant, with all correspondence copied to the applicant and the court informed of any disputes.
• The council shall manage the preparation and filing of affidavits by the expert.
• The issues before the court shall proceed in a sequenced manner as outlined in the judgment, including determining who the expert should be.
• Liberty to apply is granted generally and specifically regarding costs and other matters.
• The matter of who the expert should be is listed for mention on 15th January 2024 for directions.
• The council shall pay the expert within two months of payment requests, with disputes resolved by the court.
• The council shall pay the applicant's reasonable costs of cooperating with the expert, with liberty to apply for additional costs or payments on account.
• The costs of this application are adjourned to be dealt with alongside the applicant's costs motion, with parties to prepare a comprehensive costs table.

The direct effect is to formalize the role and terms of engagement of an independent expert to assist the court in overseeing the remediation of the illegal dump site. No new legal precedent is set beyond managing the procedural and practical aspects of expert involvement in this ongoing environmental enforcement matter.