High Court rules Limerick Council's issuing of waste facility licence was 'unlawful'

Claire Boylan owned lands next to the site which she claimed had been flooded as a result of the company dumping material from a road construction project.

The High Court heard evidence that the council had granted the waste facility permit in November 2018 on the basis it was satisfied the development would not cause environmental pollution at a time when it was aware dumping of waste by the company had already caused pollution on the site.

A decision by Limerick City and County Council to award a waste facility permit to a company which it already knew had caused pollution and breached a condition of its planning permission was “flawed and unlawful”, a High Court judge has ruled.

Mr Justice Mark Heslin quashed the decision of the council to award the permit to P&D Lydon Plant Hire, a Co. Mayo-based civil engineering contractor, in November 2018 in relation to lands at Clondrinagh, Ennis Road, Limerick.

The ruling came as a result of a judicial review requested by Claire Boylan who owned lands adjacent to the site which she claimed had been flooded as a result of the company dumping material from a road construction project on the site in excess of permitted quantities.

The High Court heard evidence that the council had granted the waste facility permit in November 2018 on the basis it was satisfied the development would not cause environmental pollution at a time when it was aware dumping of waste by the company had already caused pollution on the site.

Mr Justice Heslin said the council’s statement that the facility was compliant with its planning permission was “wholly inconsistent” as the council had acknowledged two months earlier that P & D Lydon had exceeded the permitted amount of waste on the site and should be considered an unauthorised development. 

The judge said the council knew all relevant activity had ceased on the site even before the company had applied for the permit.

Ms Boylan claimed P&D Lydon had been awarded the permit without an environmental impact assessment report (EIAR) being provided contrary to national and EU law, while a screening report for an appropriate assessment, which is used to identify any potential negative effects on protected EU habitats, was irrational and did not meet the required legal standard.

In addition, Ms Boylan claimed over 78,000 tonnes of material had been dumped on the site in late 2017 when 25,000 tonnes was the limit.

In reply, the council claimed the plaintiff’s case was moot and her challenge “irrelevant” as the company had subsequently surrendered its permit in April 2019.

Contrary to Ms Boylan’s claims, the council maintained that it had requested an EIAR from P&D Lydon which was provided by the company.

However, Mr Justice Mark Heslin said no such report had been presented to the court.

"This was not an innocent mistake"

The judge said it was also an unusual feature of the case that the council had not denied any of the claims made by Ms Boylan.

On the contrary, he claimed the council had accepted that the permit had been granted “other than in accordance with law”. Mr Justice Heslin said it was also clear from documents that the council was aware from March 2018 that the dumping of waste on the land at Clondrinagh by P&D Lydon was unlawful as it had exceeded the amount permitted.

The judge said a notice issued by the council to the company instructing it to cease dumping further waste on the site prompted the firm to seek the waste facility permit.

He observed that the granting of the permit regularised the breach about which the council had previously complained.

The judge said the company was misleading when it stated in its application for the permit how material would be spread on the land when it had already taken place.

“I am satisfied this was not an innocent mistake,” he remarked, adding the council was also aware of the fact.

Although the council claimed Ms Boylan’s legal action was moot as P&D Lydon surrendered its permit, the judge said the issuing of the permit continues to have a material effect which he said was “to cure a planning breach”.

He said it was not fair to characterise the case as “moot” as the overriding requirements of justice favoured a ruling on a challenge to the council’s flawed decision and real consequences would flow from allowing it to stand.

The court heard that Ms Boylan is taking a separate legal action against P&D Lydon Plant Hire over the pollution to her lands.