The operator of a waste management facility must take steps to remove all waste and equipment from the site in Rathnew, Co Wicklow, the High Court has ruled.
Stan O’Reilly, who operated C&D Recycling, had claimed the plant did not require planning permission as the site was previously used for solid fuel bagging and grain storage.
It was argued the collection, sorting and recycling of construction materials came within the definition of “industrial process” contained in regulations dealing with exempted development.
Wicklow County Council disagreed and took enforcement proceedings against him.
In July last year, the Circuit Court held there had been an unauthorised material change of use but it refused to order Mr O’Reilly to remove all waste and equipment from the site. Because the council revoked his waste permit during the currency of the proceedings, the court said it was deprived of power to direct an orderly winding down of activities at the site.
The council appealed that aspect of the Circuit Court decision.
In her judgment on Thursday, Ms Justice Iseult O’Malley said she did not accept arguments on behalf of Mr O’Reilly that it was now “out of his power” to remove the material and equipment from the site. It had been argued, because his lease from the owners had ended, he would not be able to enter the site except as a trespasser.
Ms Justice O’Malley said she found it hard to imagine the owners, the Stafford family, would prefer to keep the site in its current condition rather than co-operate with its remediation.
She also rejected the suggestion that Mr O’Reilly cannot afford to carry out the removal. That was not supported by the evidence as to his means and current occupation, she said.
She said she would order him to remove the material and equipment. Given the lapse of time since the proceedings began, the parties should put forward a realistic timetable for the works to be incorporated into her order later, the judge added.
In her judgment, she said the council had in July 2006 granted a waste management permit to Mr O’Reilly for the premises.
Later that month, a complaint alleging unauthorised use was made and an investigation was commenced by the council.
In 2009, Mr O’Reilly applied for a declaration (under Section 5 of the Planning and Development Act 2000) that his “recycling activity” was exempted development.
The council instead determined it constituted a material change of use from the previous established activity on the site.
That decision was not appealed or challenged by Mr O’Reilly, the judge said.
The Circuit Court was correct in finding it was unauthorised development, she said.