The Court of Appeal has dismissed Offaly County Council’s appeal against an order applying special environmental costs rules to judicial review proceedings concerning a waste collection permit.
The judgment, delivered by Mr Justice Murray on 20 March 2020, concerns an order made by the High Court under section 7 of the Environment (Miscellaneous Provisions) Act 2011. The order determined that section 3 applied, under which each party generally bears its own costs in qualifying proceedings. The Court of Appeal did not decide the underlying judicial review challenge or determine whether the permit was unlawful.
The proceedings challenged Offaly County Council’s 31 March 2016 decision to renew a national waste collection permit for Tag-A-Bin Limited. The permit authorised collection of 75 categories of waste throughout the State. Fergus O’Connor, who operated a riding school and equestrian centre on property beside Tag-A-Bin’s premises in Dunmoe, County Meath, alleged that waste was brought to and stored at those premises and that trucks and skips were washed there. He said the site was not an authorised waste facility and alleged noise, odours and health and safety concerns forced him to close the school. These were allegations, not findings in this appeal.
O’Connor argued that the council had failed to address complaints about alleged breaches of permit conditions and should have refused renewal or revoked the permit. He also raised grounds concerning environmental assessment, the council’s authority to act as the national permit office, and delegation of the renewal decision. The Court of Appeal said the parties had not argued whether separate grounds could be treated differently for the costs rules, and left that question open.
The court held that judicial review proceedings can qualify under the 2011 Act; the form of the case is not decisive. It found that the claim, as framed, sought to prevent the continued collection of waste under a permit alleged to be invalid, and therefore came within section 4(1)(a). For an early section 7 determination, the court said there was no general requirement to prove more than a stateable claim. It concluded that the arguments under Articles 28 and 29 of the Waste Management (Permit Collection) Regulations 2007 met that threshold. It did not rule that those arguments would succeed at trial.
The Court of Appeal dismissed the council’s appeal, leaving the High Court’s section 7 order in place. The judgment notes that the High Court had separately dismissed the substantive judicial review proceedings on 20 December 2019, after the oral hearing of the appeal.