Wicklow Council Consultant sought tender for clean-up of illegal waste

VILLAGEAugust/September 

HE multi-million scandal surround-

ing the illegal dumping of waste in

county 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

to lease the land while he was also investi-

gating the landowner in respect of criminal

charges related to illegal dumping. O’Reilly

was subsequently charged and convicted

along with other illegal dumpers.

O’Reilly instead agreed to sell the entire

site to Brownﬁeld Restoration for a sum

believed to be in the region of € million.

Brownﬁeld then successfully obtained a

licence, more restrictive than it sought, from

the EPA but was obstructed from commenc-

ing remediation work and from developing

its planned waste facility.

Transcripts of the High Court case which

was adjourned in late  following the

dramatic intervention by the Minister for the

Environment, Phil Hogan and his oﬃcials,

who promised to provide the council with

the m remediation costs, have revealed an

extraordinary series of questionable actions

by Council oﬃcers, according to local rep-

resentatives and Ms Childers.

Before the adjournment of the case the

court had heard of alleged conﬂicts of inter-

est involving O’Laoire and his company and

an allegation that he was in contempt of

court for breaching an order of the judge not

to discuss the evidence of other witnesses,

including that of County Manager Sheehy,

before his own cross-examination by coun-

cil for the defendants. O’Laoire was a leading

witness for the Council.

Instead, the court heard that O’Laoire had

obtained transcripts of Sheehy’s evidence

from the oﬃce of the law agent (solicitor) of

the council and had discussed issues central

to his cross-examination with another sen-

ior council oﬃcial and members of its legal

team before he entered the witness box in

July .

It also emerged during the action that

O’Laoire had helped prepare the Council’s

objection to the application by Brownﬁeld

for an EPA licence even though he had

himself sought to secure the contract and

licence for the remediation work only

months earlier. Furthermore he had been

chief witness in the criminal cases taken

by the Council against a number of those

responsible for dumping illegal waste at

August/September VILLAGE

Councillor

Tommy

Cullen

County Manager

Eddie Sheehy

THE illegal dumping was ﬁrst disclosed by independent Baltinglass Councillor, Tommy

Cullen, in the chamber of Wicklow County Council as far back as November 1998

following complaints by local residents, Emer and Russ Bailey. Over the years Cullen, a

former Labour Party councillor, continued to raise the issue of illegal dumping with the

Department of the Environment, and with Tánaiste Joan Burton, who, he says, raised

it with the former environment minister, John Gormley when he was in oﬃce.

Cullen has recently met advisors to the new environment minister, Alan Kelly, and of

Sinn Féin leader, Gerry Adams – who asked a series of questions in the Dáil concerning

controversial issues, including waste disposal in County Wicklow, and of the suitability

of Phil Hogan for the job as EU Commissioner given his failure as minister to investigate

many of the complaints made to the Department of the Environment during his tenure.

Wicklow County Manager Sheehy and Cullen have clashed over many issues in the

past. In July 2008, Sheehy directed the law agent (solicitor), David Sweetman, to have

Cullen removed from oﬃce as a member of Wicklow County Council. The Manager and

law agent carried out the removal of Cullen from his public oﬃce despite the Council

having received legal advice that they would be acting outside their authority by doing

so. Councillor Cullen immediately sought a judical review of the decision before Judge

Mary Laﬀoy in the High Court. The application was joined by the Attorney General who

opposed Sheehy’s unprecedented action. Gerard Hogan SC represented Cullen. Judge Laﬀoy

decided that Sheehy had acted outside of his authority and she also described his decision

as an “absurdity”.The law agent had to apologise to Councillor Cullen at the following

council meeting. The case cost the state in the region of 1300,000 in legal costs.

The issue which led to Cullen’s unlawful removal from the council emanated from

a controversial decision by the county manager to grant planning permission for an

animal incinerator to a Dublin based company to be built in the scenic area of Avoca.

The Manager’s decision was overwhelmingly opposed by the majority of county

councillors and local residents. The incinerator project never went ahead.

VILLAGEAugust/September 

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 

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

 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

i n ”.

She also queried the inconsistency in the

Council estimates of the cost of remediating

the site which she claimed ranged from €

million to €.m to €m. 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.

2 0 0 5 A p r i l 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.

2 0 0 9 J u l y 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. •