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Ireland's political and cultural magazine
1 0 April 2017
T
HE FORMER Minister for the Environ-
ment, Phil Hogan, made a promise he
did not and could not deliver to spend
€50m of public money on the remedia-
tion of an illegal waste dump. This was
in order to avoid the emergence of damaging evi-
dence in the High Court about the role of Wicklow
County Council (WCC) in the management of the
site.
In recent weeks, the High Court has heard that
the former Wicklow County Manager, Eddie
Sheehy, was aware of plans by an authorised
officer of the Council to set up a private company
in order to make up to €30m in profits from the
remediation of the huge waste site at Whites-
town in West Wicklow.
In the case, brought by Brownfield Restoration
Ltd against WCC before Justice Richard Hum-
phreys, former authorised officer, Donal
O’Laoire, has claimed that he was involved in a
corrupt attempt to make huge profits by setting
up a private company to clean up the site and
that he was operating under the direction and
with the full knowledge of senior officials,
including Sheehy.
O’ Laoire has admitted to the court that his
actions were corrupt and that Mr Sheehy “was
up to his neck in it” when he put forward a pro
-
posal to set up a company, Environmental
Remediation Ltd, and sought to purchase the
dump from landowner, John O’Reilly, in 2002.
O’Laoire said he had discussed the plan with
Sheehy and then WCC Director of Services,
Michael Nicholson, after he had been employed
by the Council to identify the nature, source and
amount of polluted material on the site in 2001.
O’Laoire admitted that he was the person
authorised by the Council to inspect the site and
identify the polluters, including the role of
O’Reilly, in allowing the waste dumping on his
land for payment, over many years. O’Laoire
then sought to lease the land with a view to set-
ting up a commercial entity to remediate the site
and turn it into a depository for the treatment of
waste dumped illegally at various sites in
Wicklow.
Instead O’Reilly sold the Whitestown lands -
which the company wanted to turn into a licensed
waste facility after removing toxic and other dan-
gerous, commercial and domestic from the site
- to Brownfield in 2002 for €2m. It received a
licence to do this from the Environmental Protec-
tion Agency but sued Wicklow County Council for
failing to remove material including inert waste
from road clearing work and dangerously toxic
Phil Hogan promised to spend €50m
to avoid corruption embarrassment to
Wicklow County Council
by Frank Connolly
NEWS
Wicklower
still
O’Laoire was the witness used by the
Council to prosecute private waste firms
for dumping but had failed to inform the
authorities that the Council had also dumped a lot of
waste and he wrongly discussed issues with other
witnesses, including Manager Sheehy
April 2017 1 1
tarmac it had dumped.
O’Laoire and Sheehy have been giving evi-
dence in a case for damages brought by
Brownfield over the failure by the Council to
remediate the site after the dramatic interven-
tion by Phil Hogan during an earlier court hearing
in 2011. Just weeks before a full hearing of the
matter was due before the High Court in January
2012, representatives of the Council told a hear
-
ing before Mr Justice O’Keeffe that the
department had confirmed that it intended to
provide €50m to cover the costs of
remediation.
As a result, the judge agreed to an indefinite
adjournment of the case until the promised
remediation had been carried out.
In evidence over the past two weeks, Sheehy
has branded O’Laoire “a liar and a perjurer” and
denied he had colluded with the authorised
officer in plans to set up a private company to
clean up the site he had been paid to inspect.
O’Laoire had been the principal witness used by
the Council to prosecute private waste firms that
had illegally dumped vast quantities of commer-
cial, domestic and medial, including hazardous
waste on the site through the 1990s. He had
failed to inform the authorities that Wicklow
County Council had also dumped tens of thou-
sands of tonnes of waste at Whitestown and had
wrongly discussed issues with other witnesses,
including Sheehy, during an earlier trial despite
being forbidden by the presiding judge to do so.
The adjournment of the case in November
2011, following the promise by Hogan to provide
the Council with €50m, came before Sheehy and
other officials were called to give evidence about
the private company set up by O’Laoire. It also
meant they did not have to deal with the role of
the Council itself in illegal dumping or the
involvement of the EPA and Department of the
Environment officials in the handling of the ille-
gal dumping controversy. It has now emerged
that Hogan did not have €50m to provide to the
Council. RTÉ News carried the story of the
planned intervention by the Department and the
minister following a briefing the night before the
court case in November 2011 in the Custom
House provided by Hogan and senior depart
-
ment officials.
Sheehy has insisted in his recent evidence
that he had known that O’Laoire had been
engaged in corrupt activities since 2002 and that
he had asked him to desist. However, counsel for
Brownfield, Peter Bland SC, has challenged this
and has claimed that Sheehy knew for many
years about O’Laoire’s role and had failed to dis-
close it to the department or in previous court
evidence.
In evidence on, 31 March, Bland showed
Sheehy an email sent by the Department to him
about an article published in Village magazine,
and about questions posed by this writer follow-
ing the adjourned court case in November 2011.
Questioning Mr Sheehy, Bland asked: “….we
have a journalist, Frank Connolly...writing to the
department, saying that the lead lawyer for
Hogan did not have €50m to provide to
the Council though RTÉ News carried
the story of the planned payment by the
minister following a briefing the night
before the court case in November 2011
provided by Hogan
VILLAGEAugust/September
T
HE multi-million scandal surround-
ing the illegal dumping of waste in
count y Wicklow is another legacy left
to the new environment minister, Alan Kelly,
by his predecessor, Phil Hogan and another
reason why the latter’s proposed elevation
to the post of European Commissioner has
been questioned.
In October last, Nessa Childers, MEP
wrote a letter of complaint to then EU envi-
ronment commissioner Janez Potocnik
detailing the history of illegality, incom-
petence and downright dishonesty with
which a succession of state agencies and
private waste companies have dealt with
the massive dumping of hazardous hospi-
tal, commercial and domestic waste in the
‘Garden County’ which first came into the
media spotlight as long ago as .
In particular, she referred to the illegal
landfill site at Whitestown, County Wicklow,
where an estimated million tonnes of illegal
waste is located and which requires urgent
remediation due to the environmental threat
it poses to a local waterway that runs into
the river Slaney – and to salmon-spawning
and otter habitats.
Childers pointed out that the failure of
Wicklow County Council and the Department
of the Environment to clean up the site is in
breach of a judgment of the European Court
of Justice in which specifically ordered
immediate remediation action.
The remediation has been delayed due
to an extraordinary sequence of events
which were revealed in a High Court action
taken by Wicklow County Council against a
number of parties it claimed was responsi-
ble for the illegal dumping.
The Council was seeking to get dam-
ages off the polluters in order to raise the
necessary cost of remediation which was
estimated to be in the tens of millions by
the local authority.
During hearings of the case in July ,
it emerged that an authorised officer of the
Council, Donal O’Laoire, had been employed
to identify the nature and source of pollution
at the landfill in but had then sought
to secure a contract worth in excess of €
million to clean it up. The court heard that
O’Laoire had discussed the plan with County
Manager Eddie Sheehy and County Head of
Services Michael Nicholson during .
But it later came unstuck when he failed to
obtain the necessary lease or other inter-
est in the landfill which would allow his
company to apply for a licence from the
Environmental Protection Agency (EPA).
In late , the landowner John O’Reilly,
refused a lease offer of €, per year
from O’Laoire’s company, Environmental
Remediation Ltd. It emerged later that
O’Laoire sought to do a deal with O’Reilly
NEWS
Also in this section:
Heather Perrin 19
Law reform 20
Aarhus Convention 22
Donegal planning 24
Donal O’Laoire sought
€30m contract, tried
to do commercial
deal with polluter
he was investigating
for criminality, and
allegedly discussed
Manager’s evidence in
contempt of court.
By Frank Connolly
Wicklow Council Consultant
sought tender for clean-up of
illegal waste
junior minister calls for investigation into Wicklow waste and zoning
controversies. Pic: Whitestown Quarry
18 village August/September 2014
Whitestown and other sites in Wicklow
before the High Court action for damages
took place. It also emerged that O’Laoire
had failed to disclose the illegal dumping
by the Council itself at Whitestown over a
number of months, dumping which he had
been employed to investigate.
A former member of the Irish defence
forces, O’Laoire was described by lawyers
for the council as incommunicado when the
case resumed in late 2011
The Minister’s intervention on that day
when lawyers for Wicklow County Council
said that it had agreed to undertake the
remediation of the site with funding pro-
vided by the Department, meant that the
court never heard even more serious alle-
gations of corruption which the owner of
Brownfield Restoration had made to the
Garda during its lengthy investigation into
the illegal dumping and which were to be
introduced by his senior counsel, Ian Finlay,
during the proceedings.
In her complaint to the EU Commission,
Nessa Childers stated that “a major con-
tributor to the inordinate delay enforcing
remedial action from the landowner and ille-
gal dumpers was the behaviour of the County
Council’s authorised officer appointed in
2001 who was responsible for the investiga-
tion of this site; in that the authorised officer
sought to profit personally from the reme-
diation by setting up his own remediation
company and sought to have the site leased
from the owner who he was responsible for
investigating, to this company”.
She continued: “The owners of the site
and Wicklow County Council were then
engaged in court action regarding the site.
The County Council and the authorised
officer did not comply with a High Court
order for discovery of documents and the
authorised officer eventually failed to com-
municate with the County Council and the
court. As a result, many years of investiga-
tion and evidence were rendered useless and
the County Council had to re-start the proc-
ess of investigating the necessary remedial
action required at the site. Further delays
were caused by the County Council’s refusal
to admit to the court the full extent of their
own illegal dumping on the same site prior
to their official discovery of the illegal site
in 2001”.
She also queried the inconsistency in the
Council estimates of the cost of remediating
the site which she claimed ranged from €8
million to €33.5m to €50m. Her primary
concern remains the failure of the council
or the responsible department to effectively
clean up the Whitestown site as required by
the European Court of Justice.
NEWS WICKLOW
1998 Two reports were made notifying Wicklow County Council about illegal dumping in
Whitestown Quarry. Wicklow County Councillor, Tommy Cullen, raised the issue of illegal
dumping at Whitestown in the Council chamber and local residents Emer and Russ Bailey
made a complaint to the Council providing dates, times and lorry-registration details.
Councillor Cullen’s statements are fully recorded in the minutes of the Council meeting.
1999 Wicklow County Council made an offer to lease this illegal dump
during the period when illegal dumping was on-going.
2001 November: Wicklow County Council officially discovered illegal dumping at Whitestown
although the complaints dated back three years. Wicklow County Council employed
a consultant, Donal O’Laoire, and appointed him as the authorised officer to take
charge of the investigation into the large-scale commercial illegal dumping.
2003 March The site holding the illegal waste was purchased by Brownfield
Restoration Ltd for over €2m from the previous landowner.
2004 Brownfield Restoration Ltd applied for planning permission and
a licence to operate a landfill at Whitestown Quarry.
2005 April In a landmark judgment against Ireland the European Court of Justice
ruled that Ireland had infringed the Waste Framework Directive by generally
and persistently failing to fulfil its obligation to fulfil various articles under that
Directive. The European Court of Justice declared, inter alia, that, “ by failing to take
all the measures necessary to ensure a correct implementation of the provisions
of Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July
1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991,
Ireland has failed to comply with its obligations under those provisions”.
2006 September A licence was issued to Brownfield Restoration Ltd. at the insistence
of Wicklow County Council and the EPA, to remove all waste from the site.
2009 July Court case commenced; Wicklow County Council v. Brownfield Restoration,
Dean Waste, A1 Waste; and Brownfield Restoration v. Wicklow County Council.
2009 October Case adjourned after 26 days of hearings.
2009 December Judgment issued against Wicklow County Council for costs in the
application to strike out proceedings because of its conduct as plaintiff.
The case was due to re-commence following further delays in compliance
with discovery by Wicklow County Council on 24 January 2012.
2011 24 November The Department of the Environment intervened saying they would pay
for remediation, bringing about the effective abandonment of the case. Wicklow
County Council (with officials from the Department of the Environment present),
sought an indefinite adjournment of the proceedings until the remediation had
been carried out. This unprecedented intervention six weeks in advance of the
recommencement of final proceedings to be held on 24 January 2012 (which
would have made available all the evidence of discovery in the public arena)
effectively prevented the case from being determined and concluded.
2013 2nd October Nessa Childers MEP, Ireland East, announced that she would lodge a formal
complaint to the European Commission over lack of remedial action at the Quarry site.
2013 8th October Bryan Doyle of Wicklow County Council announced
that it planned to remove 84,000 tons of waste at a cost of €8m
and the balance of the 1.1m tons would be left in situ.
Summary chronicle of actions regarding illegal
dumping in Whitestown Quarry, Co. Wicklow
Meanwhile, Brownfield Restoration is
pursuing a potentially costly legal action
against the Council which has so far failed
to make any of the responsible polluters pay
for the multi-million-euro mess.
Newly appointed junior minister and
Wicklow TD, Simon Harris, told Village
that the range of controversies in the county
needs to be investigated. “All of these issues
need to be examined as there appears to be a
crisis of confidence in the administration of
local government in Wicklow”, he said. •
Village article in August
2014 outlining the
history of the Whitestown
illegal dumping saga
and allegations made
concerning former
Wicklow County Manager,
Eddie Sheehy and other
senior officials.
1 2 April 2017
Wicklow County Council attended the High Court on the
24th November, 2011, and told the Court that the Depart-
ment agreed with the Council to underwrite the cost of
the remediation of Whitestown illegal dump up to a cost
of €50 million”.
Quoting the Village email query to the department,
Bland continued: “Two officials of the Department were
present (at the court case). Can you confirm whether or
not the Department subsequently paid towards reme-
diation and to what amount?”.
In response, the press officer of the Department asks
the relevant Department official in an internal email:
“Can we get a line on this? I presume we didn’t cough up
any shillings since we probably didn’t have a pot to piss
in”
The relevant, finance department, official replies in an
internal communication to the press officer: “The
attached sets out the full position. The €50 million is well
wide of the mark….total remediation cost is approxi-
mately €5 million. The case falls within the deliverables
of the ECJ (European Court of Justice) case so the State
has been required to take these remediation costs on.
However, it should be noted that Wicklow Co. Co. is seek-
ing to recover costs through the courts”.
In subsequent questions, Peter Bland asked Sheehy
about a request from the department for his response to
a Village article outlining the history of the Whitestown
illegal dumping saga and allegations made concerning
him as County Manager and other senior officials.
Sheehy replied by letter on 23 February, 2015.
The exchange continued.
Peter Bland: “Yes, so it is 23rd February 2015, six
years after you (claimed to have) discovered that Mr
O’Laoire is corrupt and incompetent. Here you are in the
second last paragraph:
(Quoting from the Sheehy letter to the department,
obtained by Brownfield under FOI, Bland continues)
Mr O’Laoire’s work contributed to the success of the
Council’s effort to have a number of sites, including the
Fenton site, where hospital waste was found, and a large
Roadstone site near Blessington remediated, at no cost
to the Council, by landowners and those who have
dumped on the site. His work also contributed to the
success of the NBCI (National Bureau of Criminal Inves-
tigation) in securing criminal convictions for illegal
dumping in County Wicklow……A report prepared by Mr
O’Laoire included technical details of how the Whites
-
town site could be remediated and an offer by him to
carry out the work on behalf of the Council. He was told
by the County Manager the Council’s policy was that
those responsible should be costed for the
remediation.
The letter went on to say that two years later ‘there
were subsequent allegations by Brownfield which
resulted in a finding by the Gardai of no credible evi-
dence to show that Donal O’Laoire had committed any
criminal offence’.
Then, the letter continued, ‘Mr O’Laoire made a
number of admissions (in the High Court in July 2009)
which were at variance with the statements (both to the
NBCI and WCC). As a result of those admissions the pro
-
ceedings became more complex and more protracted
and were adjourned on several occasions in the inter-
vening years. As a result of those delays the site is being
remediated by the Council at the request of the Depart-
ment, they are under pressure from the EU’”.
Finally, Bland read the final line of the letter which
stated that “the Brownfield allegations against the
Council’s consultant, Donal O’Laoire, are likely to be tra-
versed fully in two sets of High Court proceedings when
they are heard after the remediation of the site is com-
plete. There are millions of euros at issue in these
proceedings…”.
Bland continued: “That is your statement to the
Department. You don’t say in that statement that you
have issued proceedings or counterclaim against your
consultant, Mr O’ Laoire, for professional negligence in
botching the investigation against Whitestown or for a
conflict of interest leading to the necessity for the Coun-
cil to pay the costs of these proceedings. You don’t say
that to the Department”.
Sheehy replied: “I didn’t say that to the Department,
no……What I was asked for was a note giving our
response to the Village Magazine article, which had a
load of allegations against the County Council. I pre-
pared a note for the Department”.
In evidence, given earlier in court, Sheehy claimed
that he had known about O’Laoire’s allegedly corrupt
activities for many years before he wrote the letter
responding to the Village article in February 2015.
The trial is continuing in the High Court.
In response to Village’s
questions, the press officer of the
Department asks in an internal
email: “Can we get a line on this?
I presume we didn’t cough up any
shillings since we probably didn’t
have a pot to piss in"
NEWS
Pot: Department of Environment reckoned it didn't have even one to piss in
