The Court of Appeal has upheld the High Court timetable requiring Wicklow County Council to fully remediate the Whitestown illegal dump in County Wicklow, while changing several costs orders in favour of Brownfield Restoration Ireland Limited.
In a judgment delivered on 16 October 2019, Ms Justice Costello rejected Brownfield’s appeal against the time allowed for the cleanup. The High Court had set a process lasting 78 months, including preparation and consultation on a remediation plan, a court hearing to resolve any remaining disputes, tendering for a contractor, up to 36 months for remediation works and six months of monitoring.
The Court of Appeal said the High Court judge was entitled to allow time for the necessary planning and consultation. Public procurement requirements still applied, and the site’s history and environmental risks supported a detailed process. Brownfield did not challenge the time allowed for the works and post-remediation monitoring. The intermediate deadlines were indicative; the overall deadline was that the process be completed within 78 months.
The underlying proceedings concerned the council’s responsibility for waste at the site. The High Court had ordered the council to remove all waste and contaminated or potentially contaminated soil. The Court of Appeal judgment recounted that more than 250,000 tonnes of mixed domestic, industrial and hospital waste had been deposited there between 1979 and 2001, and that tests in 2015 found waste was polluting groundwater flowing into the River Slaney.
Brownfield had brought separate proceedings against the council in 2008. The council discontinued its earlier proceedings against Brownfield after the High Court ruling. Brownfield’s appeal concerned the remediation timetable and the allocation of costs, not a new determination of the underlying cleanup findings.
The appeal court allowed the costs challenge in part. It ordered the council to pay Brownfield’s costs of agreeing the issue paper, the application for a modular trial, the council’s unpursued application to re-enter proceedings against Swalcliffe Limited, and Modules III and IV. It also directed that there be no order as to costs for the council’s application to file a supplemental affidavit about its remediation decision.
The court rejected Brownfield’s remaining costs challenges, including its challenge to the treatment of costs in the 2005 proceedings and the costs associated with allegations concerning the council’s conduct. The balance of the High Court order was affirmed.