The Supreme Court has directed that the High Court should determine a complaint by a coastal campaigner, Ms Karin Dubsky, that works to create alternative feeding grounds for wild birds on the estuary of the Boyne river have not been properly carried out.
The area, near Drogheda, Co Louth, is an ornithologically important wetland.
The Chief Justice, Mr Justice Hamilton, said Ms Dubsky, who is co-ordinator of Coastwatch Ireland, should apply to the acting President of the High Court for an early date to determine whether Drogheda Port Company (DPC) is providing alternative feeding grounds in accordance with a High Court order made by Mr Justice O'Sullivan last September.
The matter involved complex issues, especially whether work carried out by DPC as part of its dredging operations was damaging the environment and areas set aside for compensatory feeding grounds for wintering wild birds.
The five-judge court yesterday granted Ms Dubsky an order restraining the removal of Spartina grass from the mudflats at Baltray, on the north side of the estuary, and overturned the High Court's refusal to grant that order.
Ms Dubsky had complained that the removal of the grass by machines was leading to several inches of sediment being taken off, making the area barren and therefore useless as compensatory feeding ground.
However, the Supreme Court rejected an application by Ms Dubsky for a second order directing DPC to take steps to restore the tidal flow to Stagrennan polder (which is being filled in as part of the company's dredging operations) in order to provide feeding grounds until the compensatory feeding grounds are completed.
DPC had claimed that its dredging operations would be effectively stopped if such an order was granted and that it could lose up to £100,000 a day as a result.
Coastwatch Ireland and DPC have been in dispute for some months over dredging one million tonnes of sand and gravel from the river channel and the dumping of that material into the Stagrennan polder, which had been used by wintering birds.
Coastwatch complained that the works had damaged part of the designated Special Protection Area for wild birds and expressed concern about the methods used to remove Spartina grass from the mudflats at Baltray, on the north side of the estuary, to provide alternative feeding grounds.
In the High Court in September, Mr Justice O'Sullivan directed that DPC could proceed with its dredging programme on condition it created compensatory feeding grounds on the north side of the estuary by mechanically removing Spartina grass.
Duchas, the national parks and wildlife service, was to determine the exact boundaries of the grass removal area.
On October 22nd, 1998, Ms Dubsky complained to Mr Justice Kelly in the High Court that the Spartina grass was not being removed in an ecologically-friendly way and produced scientific evidence to that effect.
DPC rejected the claims and produced a letter from Duchas saying it approved the works. Mr Justice Kelly rejected Ms Dubsky's application and awarded costs against her.
Giving the Supreme Court's judgment granting Ms Dubsky's appeal against that decision, Mr Justice Hamilton said it was impossible to consider Mr Justice Kelly's decision without reference to the previous order of Mr Justice O'Sullivan.
It was clear the purpose of that order was to provide a compensatory feeding ground.
Mr Justice Kelly had held he could not go against the view of Duchas, who were experts in the area, that the works were being properly carried out.
Ms Dubsky had claimed the judge erred in law in failing to give due consideration to her scientific evidence and in relying on an assertion in a letter from Duchas. The Chief Justice said Ms Dubsky was entitled to succeed on that point.
He said the matter had been before the courts as an application for interlocutory orders.
The Supreme Court believed it raised complex issues of fact and should be remitted to the High Court for a full hearing.
The court would grant Ms Dubsky an order, pending that hearing, restraining the removal of Spartina grass.
But it would refuse, at this stage, an order directing DPC to open the controlling sluice and restore the tidal flow to Stagrennan polder.
The court also discharged the High Court order awarding costs against Ms Dubsky and granted her the costs of the appeal.
