A recent High Court case examined how courts should address illegal landfill where new habitats have developed. The Court decided to adopt a staged approach to remediation, requiring applications for necessary consents before deciding on final remediation measures to ensure compliance with environmental and EU law. Our Health & Prosecutions team examines the decision.

Illegal landfill is a reality in Ireland with significant negative environmental and natural habitat repercussions. These unauthorised landfill sites can sometimes continue their illegal activities for many years before finally coming before the Courts. By the time this happens a new current habitat may have arisen for flora, fauna and wildlife. What should the Courts do? Order the removal of the illegal landfill with the corresponding negative impact on the current habitat - or leave the illegal landfill in place? A 2025 High Court case[1], sheds light on the options available to the Courts. These options include a middle way described as a “staged approach” where the Court plays an oversight role while awaiting further evidence before making final orders.

Cork County Council v Collins

Mr. John Collins, an equestrian farmer, placed infill material on land located in a Special Area of Conservation beginning in 2014. The infill material included construction and demolition waste. Cork County Council wanted the Court to order Mr. Collins to pay for the restoration of the land to its original state, i.e. full removal of all the illegal material. This process, known as “Full Remediation”, is often achieved through court orders granted in accordance with the following sections of the Waste Management Act 1996 as amended:

  • Section 57 - powers of the High Court relating to the holding, recovery or disposal of waste, and
  • Section 58 - remedies for unauthorised holding, recovery or disposal of waste

Section 57

Section 57 (1) of the 1996 Act states that where the High Court “is satisfied that waste is being held, recovered or disposed of in a manner that causes or is likely to cause environmental pollution, it may by order:

a. require the person holding, recovering or disposing of such waste to carry out specified measures to prevent or limit, or prevent a recurrence of, such pollution, within a specified period,

b. require the person holding, recovering or disposing of such waste to do, refrain from or cease doing any specified act, or to refrain from or cease making any specified omission,

c. make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.”

Section 58

Section 58 (1)(a) of the 1996 Act states the Court may make orders requiring the offender to action one or more of the following remedies for unauthorised holding, recovery or disposal of waste:

  • to discontinue the said holding, recovery or disposal of waste within a specified period, or
  • to mitigate or remedy any effects of the said holding, recovery or disposal of waste in a specified manner and within a specified period

In-situ remediation argument

Mr. Collins argued that the remedy of Full Remediation would cause further environmental and habitat damage. Otters and bats as protected species were living on the land. He argued that the illegal material should remain where it was, known as “In-Situ Remediation”.

EPA licence & in-situ remediation

Ms. Justice Phelan noted knowledge gaps on both sides of the argument. The Court felt these evidence gaps needed clarification before the Court could make fully informed final orders. Mr. Collins was not willing to seek an Environmental Protection Agency (EPA) licence, required for legal landfill. The Court stated that it could not consider making orders for In-Situ Remediation while Mr. Collins had no EPA licence in place as he continued to be in breach of Section 39 of the 1996 Act. Ms. Justice Phelan noted:

“It is fundamental to the 1996 Act, however, that the holding of waste be pursuant to licence. Any remediation proposal considered by me, to be viable, must be otherwise compliant with obligations imposed under environmental law. A proposal to remediate by leaving waste in situ without obtaining a licence from the EPA and complying with the conditions of any such licence is not a viable proposal.”

Full remediation vs In-situ remediation considerations:

The Court weighed up the available options considering the impossibility of ordering In-Situ Remediation in the current case. It then considered a hypothetical scenario where there could be an alternative option to the Council’s proposal and stated:

“were there an alternative, viable/legal proposal which could achieve the objectives of the 1996 Act, the following issues would be amongst matters which might arise for consideration in deciding whether to exercise a discretion to refuse the form of relief sought by the Council:

i) the extent to which harmful effects of past unlawful activity are reversible,

ii) the nature and extent of ongoing harm occasioned by this unlawful activity;

iii) whether additional or further harm will be occasioned by remedial actions sought to be directed and, if so, the nature and extent of same;

iv) how the benefits in terms of restoring wetland features by the removal of infill measure in comparison with the risk of further or new harm occasioned by remedial actions sought to be directed."

The only remedy available to the Court at this time was Full Remediation as proposed by the Council. However, the Court was concerned about the possible adverse environmental impact of this proposed remedial measure given the time lapse and current habitat considerations:

“The ecological evidence adduced...is such as to demonstrate a risk that an order directing removal in the terms sought on behalf of the Council could in turn be incompatible with EU law.”

“The Council offers me only the reassurance that these concerns will be addressed during an A.A. Assessment which will necessarily precede any remedial works. The inference from this position is that these issues need not trouble me.”

But, the Court was troubled about Full Remediation works breaching EU law stating:

“As already noted, works impacting on the breeding sites or resting places of species such as otter or bat, are only permitted under derogation licence pursuant to the European Union (Birds and Natural Habitats) Regulations, 2011 (as amended) with the result that it cannot be assumed that permission for remediation by removal (Full Remediation) will be forthcoming.”

The Court was also unsure as to the impact of Court orders upon any such consent process stating:

“I found there to be a lack of clarity in the Council’s submission as to what consent process would be required were the Court to direct remediation works. I note in this regard that in Brownfield Restoration Ireland Ltd and Dean Waste Co Ltd v Wicklow County Council (No 2) Humphrey J. was not persuaded that work entailing the removal of waste was ordered by the court required a licence. On the question of whether remedial works necessitated an E.I.A (Environmental Impact Assessment) or A.A. (Appropriate Assessment), Humphrey J. held that this may depend on the nature of the court order (see para. 81). He found that an order involving immediate and urgent removal of waste is enforcement of the Act to prevent environmental damage and on a purposive interpretation does not require to be delayed pending assessment. He acknowledged on the other hand, that long-term works, involving for example landscaping or storage of inert waste, may necessitate E.I.A. and/or A.A.”

Decision

In deciding on the appropriate form of remediation, Ms. Justice Phelan decided to adopt a “staged approach” to remediation as “This avoids a risk of making an order requiring works to be done in a manner which might potentially result in a breach of EU law, which I should not do.” The staged approach suggested by the Court set out the following steps:

1. The first stage: “submission of a coherent, complete and comprehensive application for any permission, consent, authorisation, derogation or other form of lawful authority as may be required to carry out the remediation".

“The Council will need to have an oversight role in this regard so that it can be satisfied that the Respondent does not wilfully sabotage the prospects of success”.

The Court directed that all preparatory work necessary for these applications be carried out.

Mr. Collins would need to comply with the Council’s specifications to ensure the applications were properly prepared.

The parties were to agree a schedule of precisely what works are required during the first stage.

If the parties could not agree, the Court would issue directions setting out a schedule and timetable for this stage.

2. The second stage: If the necessary consents were obtained, the matter was to be re-listed in Court. The Court would then ensure that the permitted works were completed in accordance with any conditions imposed by the relevant authorities.

If the necessary consents could not be obtained, the matter was to be re-listed for the Court to consider the best alternative remediation measures.

Conclusion

Ms Justice Phelan’s “staged approach” appears to indicate a more careful approach by the Irish Courts to Full Remediation orders. The stated aim is to ensure greater compliance with EU environmental law and is also in keeping with the polluter pays principle. Local authorities should seek expert legal advice regarding their various enforcement options when dealing with illegal landfill in their functional areas.