Waste Enforcement
Waste Management Act
PART I
Preliminary and General
Short title and commencement.
1.—(1) This Act may be cited as the Waste Management Act, 1996.
(2) This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor either generally or with reference to a particular purpose or provision and different days may be so fixed for different purposes and different provisions:
Provided that if immediately before the expiration of the period of 2 years from the date of passing of this Act, this Act has not been commenced by an order under this section or any provision or provisions thereof remains or remain to be commenced by such an order (including as respects a particular purpose), this Act or the said provision or provisions shall come into operation (or, in the case of such provision or provisions that remains or remain to be commenced for a particular purpose, shall come into operation for that purpose) upon the expiration of the said period.
Annotations
Editorial Notes:
E3
Power pursuant to section exercised (1.07.1996) by Waste Management Act, 1996 (Commencement) Order 1996 (S.I. No. 192 of 1996).
2. The Waste Management Act, 1996 (other than sections 6 (2), 32 (2), 57 and 58) shall come into operation on the 1st day of July, 1996.
Community acts given effect to by this Act.
2.—The purposes for which the provisions of this Act are enacted include the purpose of giving effect to the Community acts specified in the Table to this section.
TABLE
F1[…]
F1[…]
Council Directive 76/403/EEC of 6 April, 1976 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls1
Council Directive 80/68/EEC of 17 December, 1979 on the protection of groundwater against pollution caused by certain dangerous substances2
F2[Directive No. 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment3F3[, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 20142
Council Directive 86/278/EEC of 12 June, 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture4
F1[…]
Council Directive 87/217/EEC of 19 March, 1987 on the prevention and reduction of environmental pollution by asbestos5
Council Directive 89/369/EEC of 8 June, 1989 on the prevention of air pollution from new municipal waste incineration plants6
F1[…]
Council Directive 91/157/EEC of 18 March, 1991 on batteries and accumulators containing dangerous substances7
Council Directive 91/271/EEC of 21 May, 1991 concerning urban waste water treatment8
F1[…]
Commission Directive 93/86/EEC of 4 October, 1993 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances9
F4[Council Directive 1999/31/EC of 26 April 199910 on the landfill of waste and Council Directive 2011/97/EU of 5 December 2011 amending Directive 1999/31/EC as regards specific criteria for the storage of metallic mercury considered as waste]
F5[Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste 11
European Parliament and Council Directive 94/62/EC of 20 December, 1994 on packaging and packaging waste12
F6[F1[…]
European Parliament and Council Directive 2000/53/EC of 18 September, 2000 on end-of-life vehicles13
European Parliament and Council Directive 2000/76/EC of 4 December, 2000 on the incineration of waste14
F7[European Parliament and Council Directive 2002/95/EC of 27 January 200315 on the restriction of the use of certain hazardous substances in electrical and electronic equipment
European Parliament and Council Directive 2002/96/EC of 27 January 200316 on waste electrical and electronic equipment
European Parliament and Council Directive 2003/108/EC of 8 December 200317 amending Directive 2002/96/EC on waste electrical and electronic equipment]
F8[Directive 2006/21/EC of the European Parliament and of the Council of 15 March 200618 on the management of waste from extractive industries
F9[…]
Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives]
Annotations
Amendments:
F1
Deleted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 3(a)-(f).
F2
Substituted (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 3, in effect as per reg. 1(2).
F3
Inserted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 5.
F4
Inserted (21.02.2013) by European Communities (Metallic Mercury Waste) Regulations 2013 (S.I. No. 72 of 2013), reg. 2(a).
F5
Substituted (1.07.2008) by Waste Management (Registration of Brokers and Dealers) Regulations 2008 (S.I. No. 113 of 2008), reg. 19(1)(b), in effect as per reg. 1(2).
F6
Inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 19, S.I. No. 393 of 2004.
F7
Inserted (1.07.2005) by Waste Management (Electrical and Electronic Equipment) Regulations 2005 (S.I. No. 290 of 2005), reg. 4, in effect as per reg. 2.
F8
Substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 3(g).
F9
Deleted (7.01.2014) by European Union (Industrial Emissions) Regulations 2013 (S.I. No. 138 of 2013), reg. 24, in effect as per reg. 2.
Editorial Notes:
E4
Previous affecting provision: power pursuant to section exercised (1.04.2010, 10.04.2010, and 1.12.2010) by Waste Management (End-of-Life Vehicles) (Amendment) Regulations 2010 (S.I. No. 142 of 2010), in effect as per reg. 3; as the only effect of this instrument was to amend S.I. No. 282 of 2006, it was rendered obsolete by its revocation, see below.
E5
Previous affecting provision: section amended (1.07.2008) by Waste Management (Registration of Brokers and Dealers) Regulations 2008 (S.I. No. 113 of 2008), reg. 19(1)(a), in effect as per reg. 1(2); section further amended as per F-note above.
E6
Previous affecting provision: power pursuant to section exercised (7.12.2007, 15.12.2007, and 31.03.2008) by Waste Management (Packaging) Regulations 2007 (S.I. No. 798 of 2007), in effect as per reg. 3; revoked (21.06.2014) by European Union (Packaging) Regulations 2014 (S.I. No. 282 of 2014), reg. 36(1), in effect as per reg. 3, subject to transitional provision and construed as per reg. 36(2), (3).
E7
Previous affecting provision: power pursuant to section exercised (8.06.2006) by Waste Management (End-Of-Life Vehicles) Regulations 2006 (S.I. No. 282 of 2006), in effect as per reg. 2; revoked (21.06.2014) by European Union (End-of-Life Vehicle) Regulations 2014 (S.I. No. 281 of 2014), reg. 37(1), in effect as per reg. 3.
1O.J. No. L 108/41, 26 April, 1976
10 OJ No L182, 16.07.1999, p. 0001.
11 OJ L 190, 12.7.2006, p.1 ]
12O.J. No. L 365/10, 31 December, 1994
13O.J. No. L269, 21.10.2000, p.34.
14O.J. No. L332, 28.12.2000, p.91. ]
15 O.J. No. L 37/19, 13 February, 2003.
16 O.J. No. L 37/24, 13 February, 2003.
17 O.J. No. L 345/106, 31 December, 2003
18 OJ No. L102, 11.04.2006, p.15
2O.J. No. L 20/43, 26 January, 1980
3 O.J. No. L 26, 28.1.2012 p.1 ]
4O.J. No. L 181/6, 4 July, 1986
5O.J. No. L 85/40, 28 March, 1987
6O.J. No. L 163/32, 14 June, 1989
7O.J. No. L 78/38, 26 March, 1991
8O.J. No. L 135/40, 30 May, 1991
9O.J. No. L 264/51, 23 October, 1993
F10[
Non-application of this Act.
3. (1) This Act shall not apply to—
(a) gaseous effluents emitted into the atmosphere and carbon dioxide captured and transported for the purposes of geological storage and geologically stored in accordance with Directive 2009/31/EC of the European Parliament and of the Council of 23 April 200919 on the geological storage of carbon dioxide or excluded from the scope of that Directive pursuant to Article 2(2) of that Directive,
(b) land (in situ) including unexcavated contaminated soil and buildings permanently connected with land,
(c) uncontaminated soil and other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated,
(d) the dumping (within the meaning of the Dumping at Sea Act 1981 (No. 8 of 1981)) of waste at sea,
(e) radioactive waste,
(f) decommissioned explosives, or
(g) faecal matter, if not covered by subsection (2)(b), straw and other natural non-hazardous agricultural or forestry material used in farming, forestry or for the production of energy from such biomass through processes or methods which do not harm the environment or endanger human health.
(2) This Act shall not apply to the following to the extent that they are covered by other Community acts:
(a) waste waters;
(b) animal by-products, including processed products covered by Regulation (EC) No. 1069/2009 of the European Parliament and of the Council of 21 October 200920 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No. 1774/2002 (Animal by-products Regulation) F11[, except those which are destined for incineration, landfilling or use in a biogas or composting plant];
(c) carcasses of animals that have died other than by being slaughtered, including animals killed to eradicate epizootic diseases, and that are disposed of in accordance with Regulation (EC) No. 1069/2009;
(d) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries covered by Directive 2006/21/EC.
F12[(e) substances that are destined for use as feed materials as defined in point (g) of Article 3(2) of Regulation (EC)No 767/200910 of the European Parliament and of the Council and that do not consist of or contain animal by-products.]
(3) Without prejudice to obligations under other relevant Community acts, this Act shall not apply to sediments relocated inside surface waters for the purpose of managing waters and waterways or of preventing floods or mitigating the effects of floods and droughts or land reclamation if it is proved that the sediments are non-hazardous.]
Annotations
Amendments:
F10
Substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 4.
F11
Inserted (14.06.2011) by European Communities (Waste Directive) (No. 2) Regulations 2011 (S.I. No. 323 of 2011), reg. 3.
F12
Inserted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 4.
19 OJ No. L140, 05.06.2009, p.114
21 OJ No. L300, 14.11.2009, p.1
F14[
Definitions of “activity”, “disposal”, “hazardous waste”, “recovery” and “waste”.
4. (1) In this Act—
“activity” includes operation;
“disposal”—
(a) means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy, and
(b) without prejudice to the generality of paragraph (a), includes the disposal operations listed in the Third Schedule,
and “waste disposal activity” shall be construed accordingly;
“hazardous waste” means waste which displays one or more of the hazardous properties listed in the Second Schedule;
F13[‘non-hazardous waste’ means waste which is not covered by the definition of hazardous waste.]
“recovery”—
(a) means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy, and
(b) without prejudice to the generality of paragraph (a), includes the recovery operations listed in the Fourth Schedule,
and “waste recovery activity’ shall be construed accordingly;
“waste” means any substance or object which the holder discards or intends or is required to discard.
(2) A reference in this Act to waste shall be construed as including a reference to hazardous waste.]
Annotations
Amendments:
F13
Inserted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 5.
F14
Substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 4.
Editorial Notes:
E8
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E9
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E10
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part in effect as per reg. 1(2).
Interpretation generally.
5.—(1) In this Act, save where the context otherwise requires—
“the Act of 1963” means the Local Government (Planning and Development) Act, 1963;
“the Act of 1987” means the Air Pollution Act, 1987;
“the Act of 1992” means the Environmental Protection Agency Act, 1992;
“aftercare” means, in relation to a facility which has been used for the purpose of waste recovery or disposal, any measures that are necessary to be taken in relation to the facility for the purpose of preventing environmental pollution following the cessation of the activity in question at the facility;
“the Agency” means the Environmental Protection Agency established under section 19 of the Act of 1992;
“any Minister of the Government concerned” means any Minister of the Government (other than the Minister) who, having regard to the functions vested in him or her, in the opinion of the Minister might be concerned with or interested in the matter in question;
F19[“authorised person” means F20[(other than in section 10A)] a person who is appointed in writing by—
(a) the Minister,
(b) a local authority,
(c) the Agency,
(d) the Commissioner of the Garda Síochána (or a member of the Garda Síochána nominated by that Commissioner for the purposes of appointing authorised persons under this Act), or
(e) such other person as may be prescribed,
to be an authorised person for the purposes of this Act or any Part or section thereof;]
“authorised waste collector” means a holder of a waste collection permit that is in force;
F15[‘backfilling’ means any recovery operation where suitable non-hazardous waste is used for purposes of reclamation in excavated areas or for engineering purposes in landscaping. Waste used for backfilling must substitute non-waste materials, be suitable for the aforementioned purposes, and be limited to the amount strictly necessary to achieve those purposes;]
F21[“best available techniques” means best available techniques as defined in Article 2(12) of Directive 2008/1/EC;
F18[‘bio-waste’ means biodegradable garden and park waste, food and kitchen waste from households, offices, restaurants, wholesale, canteens, caterers and retail premises and comparable waste from food processing plants;]
“broker” means any person arranging the recovery or disposal of waste on behalf of others, including any such person that does not take physical possession of the waste;
“collection” means the gathering of waste, including the preliminary sorting and storage of waste for the purposes of transport to a waste treatment facility;]
“commercial waste” means waste from premises used wholly or mainly for the purposes of a trade or business or for the purposes of sport, recreation, education or entertainment but does not include household, agricultural or industrial waste;
“Community act” means an act adopted by an institution of the European Communities;
F15[‘construction and demolition waste’ means waste generated by construction and demolition activities;]
“contravention” includes, in relation to any provision, a failure or refusal to comply with that provision, and “contravene” shall be construed accordingly;
F21[“dealer” means any person who acts in the role of principal to purchase and subsequently sell waste, including any such person who does not take physical possession of the waste;]
F22[“development” has the meaning assigned to it by section 3 of the Planning and Development Act 2000]
F23[‘EIA Directive’ means Directive 2011/92/EU of the European Parliament and of the Council of 13 December 20111 as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 20142;]
“emission” has the meaning assigned to it by the Act of 1992;
“emission into the atmosphere” means the emission of a pollutant, within the meaning of the Act of 1987, into the atmosphere;
F24[“emission limit value” means the mass, expressed in terms of a specific parameter, concentration or level of an emission, or both a specific concentration and level of an emission, which may not be exceeded during one or more periods of time;]
F25[“Environment Fund” has the meaning assigned to it by section 74;]
F22[“environmental impact assessment” shall be construed in accordance with section 40(2A);]
F23[‘environmental impact assessment report’ shall be construed in accordance with section 40(2A);]
F26[F27[…]]
“environmental medium” has the meaning assigned to it by the Act of 1992;
“environmental pollution” means, in relation to waste, the holding, transport, recovery or disposal of waste in a manner which would F28[…] endanger human health or harm the environment, and in particular—
(a) create a risk to waters, the atmosphere, land, soil, plants or animals,
(b) create a nuisance through noise, odours or litter, or
(c) adversely affect the countryside or places of special interest;
“established activity” means—
(a) in relation to an activity the carrying on of which requires a waste licence, an activity—
(i) in respect of which a permission under Part IV of the Act of 1963 is granted before the date prescribed under section 39 (1) in respect of that activity (“the relevant date”) and which permission on that date has not ceased to have effect in accordance with the provisions of sections 2 and 4 of the Local Government (Planning and Development) Act, 1982, or
(ii) which is, immediately before the relevant date, being carried on or was, at any time during the period of 12 months ending on the said date, carried on, other than an activity which involves or is associated with an unauthorised structure or an unauthorised use within the meaning of the Act of 1963, and
(b) in any other case, an activity which was being lawfully carried on immediately before the commencement of the provision concerned of this Act that requires the use of the F29[best available techniques];
“European Communities” has the meaning assigned to it by the European Communities Act, 1972;
“European Waste Catalogue” means the list of waste set out in Commission Decision 94/3/EC of 20 December, 19931, (made pursuant to Article 1 (a) of Council Directive 75/442/EEC2 on waste) and includes such list as amended from time to time;
F25[“executive function” means a function other than a reserved function;]
F15[‘extended producer responsibility scheme’ means a set of measures taken by Member States to ensure that producers of products bear financial responsibility or financial and organisational responsibility for the management of the waste stage of a product’s life cycle.]
“facility” means, in relation to the recovery or disposal of waste, any site or premises used for such purpose;
F15[‘food waste’ means all food as defined in Article 2 of Regulation (EC) No 178/200211 of the European Parliament and of the Council that has become waste;]
“functions” includes powers and duties and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the carrying out of the duties;
F30[…]
“household waste” means waste produced within the curtilage of a building or self-contained part of a building used for the purposes of living accommodation;
F31[“Industrial Emissions Directive” means Directive 2010/75/EU1 of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast);]
“industrial waste” includes waste produced or arising from manufacturing or industrial activities or processes;
F31[“integrated pollution control activity” has the same meaning as it has in section 3 (amended by Regulation 4 of the European Union (Industrial Emissions) Regulations 2013) of the Act of 1992;1
“land” includes any subsoil thereunder and structure thereon and land covered with water (whether inland or coastal);
F32[“landfill” means a waste disposal site for the deposit of waste onto or into land (i.e. underground), including:
(a) internal waste disposal sites (i.e. landfill where a producer of waste is carrying out its own waste disposal at the place of production), and
(b) a permanent site (i.e. more than one year) which is used for temporary storage of waste, but excluding
(c) facilities where waste is unloaded in order to permit its preparation for further transport for recovery, treatment or disposal elsewhere, and
(d) storage of waste prior to recovery or treatment for a period less than three years as a general rule, or
(e) storage of waste prior to disposal for a period less than one year.]
“leachate” means any liquid percolating through deposited waste and emitted from or contained within a landfill;
“local authority” means—
(a) in the case of a county borough, the corporation of the county borough, and
(b) in the case of any other administrative county, the council of the county,
and references to the functional area of a local authority shall be construed accordingly;
F25[“manager” means—
(a) with respect to the corporation of a county borough, the manager for the purposes of the Acts relating to the management of the county borough, and
(b) with respect to the council of a county, the manager for the purposes of the County Management Acts, 1940 to 1994;]
F15[‘material recovery’ means any recovery operation, other than energy recovery and the reprocessing into materials that are to be used as fuels or other means to generate energy. It includes, inter alia, preparing for re-use, recycling and backfilling;]
F21[“Minister” means the Minister for the Environment, Heritage and Local Government;]
“monitoring” includes the inspection, measurement, sampling or analysis, whether periodically or continuously, for the purpose of this Act, of waste, a premises at which waste is produced, or a facility at
which waste is held, recovered or disposed of, and of any emissions therefrom, or any environmental medium which is affected by or which, in the opinion of the local authority concerned or the Agency may be affected by, such emissions;
“municipal waste” means household waste as well as commercial and other waste which, because of its nature or composition, is similar to household waste;
F15[‘municipal waste’ means:
(a) mixed waste and separately collected waste from households, including paper and cardboard, glass, metals, plastics, bio-waste, wood, textiles, packaging, waste electrical and electronic equipment, waste batteries and accumulators, and bulky waste, including mattresses and furniture;
(b) mixed waste and separately collected waste from other sources, where such waste is similar in nature and composition to waste from households;
Municipal waste does not include waste from production, agriculture, forestry, fishing, septic tanks and sewage network and treatment, including sewage sludge, end-of-life vehicles or construction and demolition waste. This definition is without prejudice to the allocation of responsibilities for waste management between public and private actors;]
“occupier” includes, in relation to any premises, the owner, a lessee, any person entitled to occupy the premises and any other person having, for the time being, control of the premises;
“packaging” means any material, container or wrapping, used for or in connection with the containment, transport, handling, protection, promotion, marketing or sale of any product or substance, including such packaging as may be prescribed;
“person in charge” includes, in relation to any premises, the occupier of the premises or a manager, supervisor or operator of an activity relating to the holding, disposal or recovery of waste which is carried on at the premises;
“planning authority” has the meaning assigned to it by the Act of 1963;
“plant” includes any equipment, appliance, apparatus, machinery, vehicle, skip, works, building or other structure used for the purposes of, or the provision of which is incidental to, the holding, disposal or recovery of waste;
F30[…]
“premises” includes any messuage, building, vessel, structure or land (whether or not there are structures on the land and whether or not the land is covered with water), and any plant or vehicles on such land, or any hereditament of any tenure, together with any out-buildings and curtilage;
F33[“preparing for re-use” means checking, F34[cleaning] or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing;]
“prescribed” means prescribed by regulations made by the Minister under this Act;
F16[‘prevention’ means measures taken before a substance, material or product has become waste, that reduce:
(a) the quantity of waste, including through the re-use of products or the extension of the life span of products;
(b) the adverse impacts of the generated waste on the environment and human health; or
(c) the content of hazardous substances in materials and products;]
“product” includes any naturally occurring or manufactured thing;
“public authority” means—
(a) a Minister of the Government,
(b) the Commissioners of Public Works in Ireland,
(c) a local authority for the purposes of the Local Government Act, 1941,
(d) a harbour authority within the meaning of the Harbours Act, 1946,
(e) a health board established under the Health Act, 1970,
(f) a board or other body established by or under statute,
(g) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or
(h) a company in which all the shares are held by a board, company, or other body referred to in paragraph (f) or (g) of this definition;
F21[“recycling”—
(a) subject to paragraph (b), means any recovery operation by which waste materials are reprocessed into products, materials or substances, whether for the original or other purposes, including the reprocessing of organic material,
(b) does not include—
(i) energy recovery, and
(ii) the reprocessing into materials that are to be used as fuels or for backfilling operations;
“regeneration of waste oils” means any recycling operation whereby base oils can be produced by refining waste oils, in particular by removing the contaminants, the oxidation products and the additives contained in such oils;
“the Regulations of 2011” means the European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011);]
F15[‘the Regulations of 2020’ means the European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020);]
“reserved function” means—
(a) in relation to the council of a county, a reserved function for the purposes of the County Management Acts, 1940 to 1994,
(b) in relation to the corporation of a county borough, a reserved function for the purposes of the Acts relating to the management of the county borough;
F33[“re-use” means any operation by which products or components that are not waste are used again for the same purpose for which they were conceived;
“separate collection” means the collection where a waste stream is kept separately by type and nature so as to facilitate a specific treatment;]
“service station” means any installation where fuel is capable of being dispensed to motor vehicle fuel tanks from stationary storage tanks;
“sewage” and “sewage effluent” have the meanings assigned to them by the Local Government (Water Pollution) Act, 1977;
“scheduled activity” means any process, development or operation for the time being specified in the First Schedule to the Act of 1992;
“structure” means any building, erection, structure, excavation, or other thing, constructed, erected, or made on, in or under land, or any part of a structure so defined, and, where the context so admits, includes the land on, in, or under which the structure is situate;
“temporary storage of waste” shall be construed in accordance with subsection (3);
“transport” includes, in relation to waste, the movement of waste by road, rail, air, sea or inland waterway but does not include the movement of waste from one place to another—
(a) by means of any pipe or similar apparatus which joins those two places, or
(b) on and within the site at which the waste is held for the time being;
F21[“TFS Regulation” means Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 6 on shipments of waste;
“treatment” means recovery or disposal operations, including preparation prior to recovery or disposal;]
“vehicle” includes—
(a) part of a vehicle,
(b) an article designed as a vehicle but not capable of functioning as a vehicle,
(c) a skip designed or used for carriage on a vehicle,
(d) a load on a vehicle;
“waste collection permit” has the meaning assigned to it by section 34;
F33[“Waste Directive” means Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives;
“waste holder” means the waste producer or the person who is in possession of the waste;
F17[‘waste management’ means the collection, transport, recovery including sorting, and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker;]
“waste oils” means any mineral or synthetic lubrication or industrial oils which have become unfit for the use for which they were originally intended, such as used combustion engine oils and gearbox oils, lubricating oils, oils for turbines and hydraulic oils;
“waste producer” means anyone—
(a) whose activities produce waste (in this Act referred to as the “original waste producer”), or
(b) who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of such waste;
“waste prevention and management legislation and policy” means—
(a) this Act and regulations made under this Act,
(b) policy issued by the Minister,
(c) waste management plans made by a local authority, or
(d) waste prevention programmes guidance or policy issued by the Agency;]
“waste licence” shall be construed in accordance with section 37;
F35[“waste service” means any service, facility, approval or other thing which a local authority may or is required to render, supply, grant, issue or otherwise provide in the performance of any of its functions under this Act to any person or in respect of any premises;]
“waters” has the meaning assigned to it by the Local Government (Water Pollution) Act, 1977.
F36[(1A) In this Act, a reference to—
(a) the date on which a waste licence is granted is a reference to the date on which the licence is sealed with the seal of the Agency, and
(b) the date on which a decision by the Agency to refuse a waste licence is made is a reference to the date on which that decision, as reduced to writing, is so sealed.]
F37[(2) (a) A reference in this Act to “best available techniques” shall be construed as meaning the most effective and advanced stage in the development of an activity and its methods of operation, which indicate the practical suitability of particular techniques for providing, in principle, the basis for emission limit values designed to prevent or eliminate, or where that is not practicable, generally to reduce an emission and its impact on the environment as a whole.
(b) For the purposes of paragraph (a)—
(i) “best”, in relation to techniques, means the most effective in achieving a high general level of protection of the environment as a whole;
(ii) “available techniques” means those techniques developed on a scale which allows implementation in the relevant class of activity specified in the Third and Fourth Schedules, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced within the State, as long as they are reasonably accessible to the person carrying on the activity;
(iii) “techniques” includes both the technology used and the way in which the installation is designed, built, managed, maintained, operated and decommissioned.
(c) F38[…]]
(3) In this Act, a reference to the temporary storage of waste shall, without prejudice to any particular provision that may be made pursuant to section 39 (6), be construed as a reference to the storage of waste for a period not exceeding 6 months.
F39[(3A) References in this Act to Dublin City Council are references to Dublin City Council in its designation as the competent authority under Article 53 of the TFS Regulation as provided for in Regulation 4 of the Waste Management (Shipments of Waste) Regulations 2007 (S.I. No. 419 of 2007).]
F40[(3B) Subject to this Act, a word or expression that is used in this Act and that is also used in the EIA Directive has, unless the context otherwise requires, the same meaning in this Act as it has in that Directive.]
(4) In this Act, a reference to a Part, section, or Schedule is a reference to a Part or section of, or a Schedule to, this Act unless it is indicated that reference to some other enactment is intended.
(5) In this Act, a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision (including a Schedule) in which the reference occurs, unless it is indicated that a reference to some other provision is intended.
(6) In this Act a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment (including this Act).
Annotations
Amendments:
F15
Inserted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 7.
F16
Substituted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 6
F17
Substituted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 6.
F18
Substituted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 6.
F19
Substituted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 20(1)(a), S.I. No. 498 of 2003.
F20
Inserted (31.08.2015) by Environment (Miscellaneous Provisions) Act 2015 (29/2015), s. 33, S.I. No. 358 of 2015.
F21
Substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 5(a)(i), (ii), (iv), (vii), (viii) and (x).
F22
Inserted (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 4(a), in effect as per reg. 1(2).
F23
Inserted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 6(a)(i), (ii).
F24
Inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 20(1)(b), S.I. No. 393 of 2004.
F25
Inserted (17.07.2001) by Waste Management (Amendment) Act 2001 (36/2001), s. 3, commenced on enactment.
F26
Substituted (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 4(b), in effect as per reg. 1(2).
F27
Deleted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 6(a)(iii).
F28
Deleted (1.07.2008) by Waste Management (Registration of Brokers and Dealers) Regulations 2008 (S.I. No. 113 of 2008), reg. 19(2)(c), in effect as per reg. 1(2).
F29
Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 21, S.I. No. 393 of 2004.
F30
Deleted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 5(a)(iii) and (v).
F31
Inserted (23.04.2013) by European Union (Industrial Emissions) Regulations 2013 (S.I. No. 138 of 2013), reg. 25(a).
F32
Substituted (8.12.2008) by Waste Management (Certification of Historic Unlicenced Waste Disposal and Recovery Activity) Regulations 2008 (S.I. No. 524 of 2008), reg. 11(1).
F33
Inserted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 5(a)(vi), (ix), and (xi).
F34
Substituted (14.06.2011) by European Communities (Waste Directive) (No. 2) Regulations 2011 (S.I. No. 323 of 2011), reg. 4.
F35
Inserted (8.09.2003) by Protection of the Environment Act 2003 (27/2003), s. 20(1)(c), S.I. No. 393 of 2003.
F36
Inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 20(2), S.I. No. 393 of 2004.
F37
Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 20(3), S.I. No. 393 of 2004, subject to saver in s. 59.
F38
Deleted (7.01.2014) by European Union (Industrial Emissions) Regulations 2013 (S.I. No. 138 of 2013), reg. 25(b), in effect as per reg. 2.
F39
Inserted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 5(b).
F40
Substituted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 6(b).
Editorial Notes:
E11
Definition of “municipal waste” superseded by insertion of new definition (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 7.
E12
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E13
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E14
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
E15
Previous affecting provision: definition of “prevention” substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 5(a)(vii); substituted as per F-note above.
E16
Previous affecting provision: subs. (1) amended (1.07.2008) by Waste Management (Registration of Brokers and Dealers) Regulations 2008 (S.I. No. 113 of 2008), reg. 19(2)(a), (b) and (d), in effect as per reg. 1(2); substituted as per F-notes above.
E17
Previous affecting provision: subs. (3B) inserted (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 4(c), in effect as per reg. 1(2); substituted as per F-note above.
1 OJ No. L 26, 28.1.2012, p.1
11 OJ L 31, 1.2.2002, p. 1
2 OJ No. L 124, 25.4.2014, p.1
6 OJ No. L 190, 12.7.2006, p.1
Offences by bodies corporate.
9.—(1) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.
Annotations
Editorial Notes:
E102
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E103
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E104
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
Penalties.
10.—(1) A person guilty of an offence under this Act (other than an offence referred to in subsection (2)) shall be liable—
(a) on summary conviction, to a F42[class A fine] or to imprisonment for a term not exceeding 12 months, or to both such fine and such imprisonment, or
(b) on conviction on indictment, to a fine not exceeding F43[€15,000,000] or to imprisonment for a term not exceeding 10 years, or to both such fine and such imprisonment.
(2) A person guilty of an offence under section 16 (5), 32 (6) (where the offence consists of a contravention of regulations under subsection (4) of that section), 33 (8) F44[34(1)(c), in so far as the offence consists of contravention of a condition attached, under section 34(7)(d), to a waste collection permit, 34(10A), 34A(13)], 38 (7) or 40 (13) shall be liable on summary conviction to a F45[class A fine] or to imprisonment for a term not exceeding 12 months, or to both such fine and such imprisonment.
(3) If the contravention in respect of which a person is convicted of an offence under this Act is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable, on summary conviction, to a fine not exceeding F43[€1,000] or (in the case of an offence to which subsection (1) applies) on conviction on indictment, to a fine not exceeding F43[€130,000].
(4) In imposing any penalty under subsection (1), the court shall, in particular, have regard to the risk or extent of environmental pollution F46[, and any remediation required,] arising from the act or omission constituting the offence.
Annotations
Amendments:
F42
Substituted (31.08.2015) by Environment (Miscellaneous Provisions) Act 2015 (29/2015), s. 34(a), S.I. No. 358 of 2015.
F43
Substituted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 22(b) and (d), S.I. No. 498 of 2003.
F44
Inserted (31.08.2015) by Environment (Miscellaneous Provisions) Act 2015 (29/2015), s. 34(b)(i), S.I. No. 358 of 2015.
F45
Substituted (31.08.2015) by Environment (Miscellaneous Provisions) Act 2015 (29/2015), s. 34(b)(ii), S.I. No. 358 of 2015.
F46
Inserted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 22(e), S.I. No. 498 of 2003.
Editorial Notes:
E105
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E106
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E107
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
E108
Previous affecting provision: subss. (1)(a) and (2) amended (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 22(a) and (c), S.I. No. 498 of 2003, subject to saver in s. 59; section further amended as per F-notes above.
F47[
Fixed payment notice for certain offences relating to producer responsibility
10A.— (1) Where an authorised person has reasonable grounds for believing that a person has committed a relevant offence the authorised person may give to the person a notice (in this Act referred to as a “fixed payment notice”) in writing and in the prescribed form stating that—
(a) the person is alleged to have committed that offence,
(b) the person may, during the period of 21 days beginning on the date of the notice, make to the local authority concerned or the Agency, as appropriate, at the address specified in the notice a payment of the amount specified in subsection (4) in respect of that offence, accompanied by the notice,
(c) the person is not obliged to make the payment specified in the notice, and
(d) a prosecution of the person to whom the notice is given in respect of the relevant offence concerned will not be instituted during the period of 21 days beginning on the date of the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of that offence will be instituted.
(2) Where a fixed payment notice is given—
(a) the person to whom it applies may, during the period of 21 days beginning on the date of the notice, make to the local authority concerned or the Agency, as appropriate, at the address specified in the notice the payment specified in the notice, accompanied by the notice,
(b) the local authority concerned or the Agency, as appropriate, shall receive the payment and shall, upon receipt of the payment, issue a receipt for it and any payment so received shall not be recoverable by the person who made it and the local authority or Agency, as appropriate, shall retain the money for disposal in accordance with subsection (5), and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(3) In proceedings for a relevant offence it shall be a defence for the defendant to prove that he or she has made a payment in accordance with this section, pursuant to a fixed payment notice issued in respect of that offence.
(4) The amount to be specified in a fixed payment notice in respect of a relevant offence is—
(a) €2,000, where the relevant offence consists of a contravention of Regulation 10(5)(a) of the WEEE Regulations,
(b) €1,000, where the relevant offence consists of a contravention of—
(i) Regulation 17(3) or 21(1)(b) of the Batteries and Accumulators Regulations,
(ii) Regulation 14(1)(b)(i), 14(1)(b)(iii), 20(a) or 22(1) of the End-of-Life Vehicles Regulations,
(iii) Regulation 10(1)(b), 10(1)(c) or 10(1)(d) of the Packaging Regulations, or
(iv) Regulation 10(7) or 15(1)(a)(ii) of the WEEE Regulations,
(c) €500, where the relevant offence consists of a contravention of—
(i) Regulation 21(4)(a) or 32(c) of the Batteries and Accumulators Regulations,
(ii) Regulation 10(1)(a), 15(1)(b) or 15(2)(c) of the Packaging Regulations, or
(iii) Regulation 13(5), 29(a)(i), 29(a)(ii) or 30(3) of the WEEE Regulations,
or
(d) €100, where the relevant offence consists of contravention of Regulation 33 of the End-of-Life Vehicles Regulations.
(5) (a) Moneys received by a local authority pursuant to the giving of a fixed payment notice shall be lodged to the credit of the local fund maintained by the local authority concerned pursuant to, and in accordance with, section 97 of the Local Government Act 2001 and expended in accordance with that section.
(b) Moneys received by the Agency pursuant to the giving of a fixed payment notice shall be disposed of in a manner determined by the Agency with the prior consent of the Minister and the Minister for Public Expenditure and Reform.
(6) (a) In this section—
“authorised person” means—
(i) in relation to a relevant offence referred to in paragraph (b)(i), an authorised person within the meaning of the Batteries and Accumulators Regulations,
(ii) in relation to a relevant offence referred to in paragraph (b)(ii), an authorised person within the meaning of the End-of-Life Vehicles Regulations,
(iii) in relation to a relevant offence referred to in paragraph (b)(iii), an authorised person within the meaning of the Packaging Regulations, and
(iv) in relation to a relevant offence referred to in paragraph (b)(iv), an authorised person within the meaning of the WEEE Regulations;
“Batteries and Accumulators Regulations” means the European Union (Batteries and Accumulators) Regulations 2014 (S.I. No. 283 of 2014);
“End-of-Life Vehicles Regulations” means the European Union (End-of-Life Vehicles) Regulations 2014 (S.I. No. 281 of 2014);
“Packaging Regulations” means the European Union (Packaging) Regulations 2014 (S.I. No. 282 of 2014);
“WEEE Regulations” means the European Union (Waste Electrical and Electronic Equipment) Regulations 2014 (S.I. No. 149 of 2014).
(b) In this section “relevant offence” means—
(i) an offence under Regulation 47 of the Batteries and Accumulators Regulations consisting of a contravention of Regulation 17(3), 21(1)(b), 21(4)(a) or 32(c) of those regulations,
(ii) an offence under Regulation 34 of the End-of-Life Vehicles Regulations consisting of a contravention of Regulation 14(1)(b)(i), 14(1)(b)(iii), 20(a), 22(1) or 33 of those regulations,
(iii) an offence under Regulation 34 of the Packaging Regulations consisting of a contravention of Regulation 10(1)(a), 10(1)(b), 10(1)(c), 10(1)(d), 15(1)(b) or 15(2)(c) of those regulations, or
(iv) an offence under Regulation 39 of the WEEE Regulations consisting of a contravention of Regulation 10(5)(a), 10(7), 13(5), 15(1)(a)(ii), 29(a)(i), 29(a)(ii) or 30(3) of those regulations.]
Annotations
Amendments:
F47
Inserted (31.08.2015) by Environment (Miscellaneous Provisions) Act 2015 (29/2015), s. 35, S.I. No. 358 of 2015.
Editorial Notes:
E109
The section heading is taken from the amending section in the absence of one included in the amendment.
E110
Power pursuant to section exercised (14.07.2016) by Waste Management (Fixed Payment Notice) (Producer Responsibility) Regulations 2016 (S.I. No. 373 of 2016).
F48[
Fixed payment notice for certain offences relating to waste collection permit
10B.— (1) Where an authorised person has reasonable grounds for believing that a person has committed an offence under section 34(1)(c), in so far as the offence consists of contravention of a condition attached, under section 34(7)(d), to a waste collection permit, the authorised person may give to the person a notice in writing (in this Act referred to as a “fixed payment notice”) in the prescribed form stating that—
(a) the person is alleged to have committed that offence,
(b) the person may, during the period of 21 days beginning on the date of the notice make to the local authority concerned at the address specified in the notice a payment of €500 in respect of that offence, accompanied by the notice,
(c) the person is not obliged to make the payment specified in the notice, and
(d) a prosecution of the person to whom the notice is given in respect of the offence will not be instituted during the period of 21 days beginning on the date of the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of that offence will be instituted.
(2) Where a fixed payment notice is given—
(a) the person to whom it applies may, during the period of 21 days beginning on the date of the notice, make to the local authority concerned, at the address specified in the notice, the payment specified in the notice accompanied by the notice,
(b) the local authority concerned shall receive the payment and shall, upon receipt of the payment, issue a receipt for it and any payment so received shall not be recoverable by the person who made it and the local authority shall retain the money for disposal in accordance with subsection (4), and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(3) In proceedings for an offence under section 34(1)(c), in so far as the offence consists of contravention of a condition attached, under section 34(7)(d), to a waste collection permit, it shall be a defence for the defendant to prove that he or she has made a payment, in accordance with this section, pursuant to a fixed payment notice issued in respect of that offence.
(4) Moneys received by a local authority pursuant to the giving of a fixed payment notice shall be lodged to the credit of the local fund maintained by the local authority concerned pursuant to, and in accordance with, section 97 of the Local Government Act 2001 and expended in accordance with that section.]
Annotations
Amendments:
F48
Inserted (31.08.2015) by Environment (Miscellaneous Provisions) Act 2015 (29/2015), s. 36, S.I. No. 358 of 2015.
Editorial Notes:
E111
The section heading is taken from the amending section in the absence of one included in the amendment.
E112
Form prescribed for purposes of subs. (1) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), reg. 38 and sch. 9, as inserted (16.01.2016) by Waste Management (Collection Permit) (Amendment) Regulations 2016 (S.I. No. 24 of 2016), reg. 2(t) and (w).
F49[
Fixed payment notice for certain offences relating to single use plastic
10C.— (1) Where an authorised person has reasonable grounds for believing that a person has committed an offence under the European Union (Single Use Plastic) (No. 2) Regulations 2021 and the offence is to be prosecuted summarily the authorised person may give to the person a notice in writing (in this Act referred to as a “fixed payment notice”) in the prescribed form stating that —
(a) the person is alleged to have committed that offence,
(b) the person may, during the period of 21 days beginning on the date of the notice make to the local authority concerned or to the Agency, as appropriate, at the address specified in the notice a payment of € 2,000 in respect of that offence, accompanied by the notice,
(c) the person is not obliged to make the payment specified in the notice, and
(d) a prosecution of the person to whom the notice is given in respect of the offence will not be instituted during the period of 21 days beginning on the date of the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of that offence will be instituted.
(2) Where a fixed payment notice is given —
(a) the person to whom it applies may, during the period of 21 days beginning on the date of the notice, make to the local authority concerned or to the Agency, as appropriate, at the address specified in the notice, the payment specified in the notice,
(b) the local authority concerned or the Agency, as appropriate, shall receive the payment and shall, upon receipt of the payment, issue a receipt for it and any payment so received shall not be recoverable by the person who made it and the local authority concerned or the Agency, as appropriate, shall retain the money for disposal in accordance with subsection (4), and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(3) In proceedings for an offence under the European Union (Single Use Plastic) (No. 2) Regulations 2021 it shall be a defence for the defendant to prove that he or she has made a payment, in accordance with this section, pursuant to a fixed payment notice issued in respect of that offence.
(4) (a) Moneys received by a local authority pursuant to the giving of a fixed payment notice shall be lodged to the credit of the local fund maintained by the local authority concerned pursuant to, and in accordance with, section 97 of the Local Government Act 2001 and expended in accordance with that section.
(b) Moneys received by the Agency pursuant to the giving of a fixed payment notice shall be disposed of in a manner determined by the Agency with the prior consent of the Minister and the Minister for Public Expenditure and Reform.]
Annotations:
Amendments:
F49
Inserted (8.10.2021) by European Union (Single Use Plastics) (No. 2) Regulations 2021 (S.I. No. 516 of 2021), reg. 4.
Editorial Notes:
E113
The section heading is taken from the content of the section in the absence of one included in the amendment.
Prosecution of offences.
11.—(1) Subject to subsection (5), summary proceedings for an offence under this Act may be brought by a local authority (whether or not the offence is committed in the authority’s functional area) or by the Agency.
(2) Notwithstanding subsection (1), the Minister may, by regulations, provide that summary proceedings for an offence aforesaid specified in the regulations may be brought by such person (including the Minister) as is so specified.
(3) Notwithstanding the provisions of section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings in relation to an offence under this Act may be commenced—
(a) at any time within 12 months from the date on which the offence was committed, or
(b) if, at the expiry of that period, the person against whom the proceedings are to be brought is outside the State, within 6 months of the date on which he or she next enters the State, or
(c) at any time within 6 months from the date on which evidence that, in the opinion of the person by whom the proceedings are brought, is sufficient to justify the bringing of the proceedings, comes to such person’s knowledge,
whichever is the later, provided that no such proceedings shall be commenced later than 5 years from the date on which the offence concerned was committed.
(4) For the purpose of this section, a certificate signed by or on behalf of the person bringing the proceedings as to the date on which evidence relating to the offence concerned came to his or her knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purpose of this subsection and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate.
(5) Subject to any order under section 69, summary proceedings for an offence under this Act in respect of a failure to comply with a condition attached to a waste licence or any other requirements of or under this Act in relation to the carrying on of an activity, the subject of such a licence, may only be brought by the Agency.
Annotations
Modifications (not altering text):
C5
Power to prosecute extended (20.05.1998) by Waste Management (Miscellaneous Provisions) Regulations 1998 (S.I. No. 164 of 1998), reg. 4, in effect as per reg. 1(2).
4. It is hereby prescribed that summary proceedings for an offence under the Act may be brought by any person.
Editorial Notes:
E114
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E115
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E116
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
E117
Power pursuant to section exercised (20.05.1998) by Waste Management (Miscellaneous Provisions) Regulations 1998 (S.I. No. 164 of 1998), in effect as per reg. 1(2).
F50[Presumption in certain prosecutions.
11A.—In a prosecution for an offence under section 32(6) or 39(9) relating to the recovery or disposal of waste on, in, over or under any land where it is proved that, by reason of—
(a) the nature of the particular recovery or disposal activity that was carried on,
(b) the period of time over which it appears that activity was carried on,
(c) the characteristics of the land and the degree of use or control it appears the owner of the land made of, or exercised in relation to, the land at the relevant time or times, or
(d) any other relevant circumstances,
it is a reasonable inference that that recovery or disposal was carried on with the consent of the owner of the land then, it shall be presumed, until the contrary is shown, that that recovery or disposal was carried on with that owner’s consent.]
Annotations
Amendments:
F50
Inserted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 23, S.I. No. 498 of 2003.
Cost of prosecutions.
12.—Where a person is convicted of an offence under this Act in proceedings brought by a local authority, the Agency, or a person specified under section 11 (2), the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the local authority, Agency or other person, as the case may be, the costs and expenses, measured by the court, incurred by the local authority, Agency or other person in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of directors, employees, consultants and advisers, as the case may be.
Payment of certain fines to local authority, Agency or other persons.
13.—Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under this Act in proceedings brought by a local authority, the Agency or a person specified under section 11(2) it shall, on the application of the local authority, the Agency or the said person, as the case may be (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the local authority, the Agency or the said person and such payment may be enforced by the local authority, the Agency or the said person, as the case may be, as if it were due to it or him or her on foot of a decree or order made by the court in civil proceedings.
Powers of authorised person.
14.—(1) An authorised person may, for any purpose connected with this Act—
(a) at all reasonable times, or at any time if he or she has reasonable grounds for believing that there may be a risk of environmental pollution arising from the carrying on of an activity at the premises or that such pollution is occurring, enter any premises and bring thereon such other persons (including members of the Garda Síochána) or equipment as he or she may consider necessary for the purpose, and
F51[(b) at any time halt (if necessary) and board any vehicle and have it taken, or require the driver of the vehicle to take it, to a place designated by the authorised person, and such a vehicle may be detained at that place by the authorised person for such period as he or she may consider necessary for the purpose.]
(2) Subject to subsection(7), an authorised person shall not, other than with the consent of the occupier, enter into a private dwelling under this section unless he or she has given to the occupier of the dwelling not less than 24 hours notice in writing of his or her intended entry.
(3) Every authorised person shall be furnished with a certificate of his or her appointment and when exercising any power conferred on him or her by or under this Act, the authorised person shall, if requested by any person affected, produce the certificate to that person.
(4) Whenever an authorised person enters any premises or boards any vehicle, pursuant to this section, the authorised person may therein, as appropriate—
(a) make such plans, take such photographs F52[, record such information on data loggers, make such tape, electrical, video or other recordings] and carry out such inspections,
(b) make such tests F53[make such copies of documents and records (including records in electronic form) found therein and take such samples],
(c) carry out such surveys, take such levels, make such excavations and carry out such examinations of depth and nature of subsoil,
(d) require that the premises or vehicle or any part of the premises or anything in the premises or vehicle shall be left undisturbed for such period,
(e) require from an occupier of the premises or any occupant of the vehicle or any person employed on the premises or any other person on the premises, such information,
(f) require the production of and inspect such records and documents F54[, including records held in electronic form], and take copies of or extracts from, or take away if considered necessary for the purposes of inspection or examination, any such records or documents,
as the authorised person, having regard to all the circumstances, considers necessary for the purposes of exercising any power conferred on him or her by or under this Act.
(5) (a) An authorised person who, having entered any premises or boarded any vehicle, pursuant to this section, considers that waste thereon or therein is such, or is being handled or transported in such manner, as to constitute a risk of environmental pollution, may direct the holder of such waste to take such measures as are considered by that authorised person to be necessary to remove that risk, including the disposal of the waste, in such manner and place and within such period as the authorised person may specify.
(b) If a holder of waste fails to comply with a direction of an authorised person under this subsection, the authorised person may do all things as are necessary to ensure that the direction is carried out and the costs incurred by him or her in doing any such thing shall be recoverable from the holder of the waste by him or her, or the person by whom he or she was appointed, as a simple contract debt in any court of competent jurisdiction.
(6) Any person who—
(a) refuses to allow an authorised person to enter any premises or board any vehicle or to take any person or equipment with him or her in the exercise of his or her powers under this section,
(b) obstructs or impedes an authorised person in the exercise of any of his or her powers under this section,
(c) gives either to an authorised person, a relevant local authority or the Agency, information which to his or her knowledge is false or misleading in a material respect, or
(d) fails or refuses to comply with any requirement of this section or of an authorised person,
shall be guilty of an offence.
(7) (a) Where an authorised person in the exercise of his or her powers under this section is prevented from entering any premises or if an authorised person has reason to believe that evidence related to a suspected offence under this Act may be present in any premises and that the evidence may be removed therefrom or destroyed, the authorised person or the person by whom he or she was appointed may apply to a judge of the District Court for a warrant under this subsection authorising the entry by the authorised person into the premises.
(b) If on application being made to him or her under this subsection, a judge of the District Court is satisfied, on the sworn information of the applicant, that the authorised person concerned has been prevented from entering a premises as aforesaid or that the authorised person has reasonable grounds for believing the other matters aforesaid, the judge may issue a warrant under his or her hand authorising that person, accompanied, if the judge deems it appropriate so to provide, by such number of members of the Garda Síochána as may be specified in the warrant, at any time or times within 1 month from the date of the issue of the warrant, on production if so requested of the warrant, to enter, if need be by force, the premises concerned and exercise the powers referred to in subsection (4) or (5).
(8) An authorised person may, in the exercise of any power conferred on him or her by this Act involving the bringing of any vehicle to any place, or where he or she anticipates any obstruction in the exercise of any other power conferred on him or her by or under this Act, request a member of the Garda Síochána to assist him or her in the exercise of such a power and any member of the Garda Síochána of whom he or she makes such a request shall comply therewith.
(9) An authorised person may enter on land for the purpose of assessing the suitability of the land for waste disposal; such an entry shall be subject to the relevant provisions of section 83 (other than subsection (6)) of the Act of 1963 as if it were an entry made under that section.
(10) The Minister may make regulations for the purposes of this section.
(11) Without prejudice to the generality of subsection (10), regulations under this section may provide for all or any of the following matters—
(a) the taking of samples and the carrying out of tests, examinations and analyses,
(b) the specification of the classes of persons to be responsible for taking such samples and for the carrying out of such tests, examinations and analyses, or
(c) the specification of the certificate or other evidence to be given of the result of any such test, examination or analysis and the class or classes of person by whom such certificate or evidence is to be given.
(12) Any certificate or other evidence given or to be given in respect of any prescribed test, examination or analysis of any sample shall in relation to that sample be evidence, without further proof, of the result of the test, examination or analysis unless the contrary is shown.
Annotations
Amendments:
F51
Substituted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 24(1)(a), S.I. No. 498 of 2003.
F52
Inserted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 24(2)(a), S.I. No. 498 of 2003.
F53
Substituted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 24(2)(b), S.I. No. 498 of 2003.
F54
Inserted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 24(2)(c), S.I. No. 498 of 2003.
Modifications (not altering text):
C6
Section applied with modifications (1.07.2008) by Waste Management (Registration of Brokers and Dealers) Regulations 2008 (S.I. No. 113 of 2008), reg. 4(4), in effect as per reg. 1(2).
Designation of competent authority
4. …
(4) Without prejudice to the powers conferred on the competent authority or its authorised officers by these Regulations, it is declared that the provisions of section 14 of the Act, subject to any modifications or adaptations as may be required, shall apply in relation to these Regulations.
C7
Section applied with modifications (12.07.2007) by Waste Management (Shipments of Waste) Regulations 2007 (S.I. No. 419 of 2007), reg. 4(3), in effect as per reg. 1(2).
Designation of competent authority.
4. …
(3) Without prejudice to the powers conferred on the competent authority or its authorised officers by the TFS Regulation and these Regulations it is declared that the provisions of section 14 of the Act, subject to any modifications or adaptations as may be required, shall apply in relation to these Regulations.
Editorial Notes:
E118
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E119
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E120
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
E121
Offence under subs. (6) prescribed for purposes of Environmental Protection Agency Act 1992 (7/1992), s. 84(4)(a), (24.07.2013) by Environmental Protection Agency (Integrated Pollution Control) (Licensing) Regulations 2013 (S.I. No. 283 of 2013), reg. 41(d).
E122
Offence under subs. (6) prescribed as offence for purposes of Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), regs. 36 and 38, (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), reg. 22(g), in effect as per reg. 2.
E123
Offence under subs. (6) prescribed as offence for purposes of s. 34(5)(a) (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), reg. 21(g), in effect as per reg. 1(2).
E124
Previous affecting provision: power pursuant to section exercised (1.04.2010, 10.04.2010, and 1.12.2010) by Waste Management (End-of-Life Vehicles) (Amendment) Regulations 2010 (S.I. No. 142 of 2010), in effect as per reg. 3; as the only effect of this instrument was to amend S.I. No. 282 of 2006, it was rendered obsolete by its revocation, see below.
E125
Previous affecting provision: offence under subs. (6) prescribed (12.07.2004) for purposes of Environmental Protection Agency Act 1992 (7/1992), s. 84(4)(a) by Environmental Protection Agency (Licensing) (Amendment) Regulations 2004 (S.I. No. 394 of 2004), reg. 6(d), in effect as per reg. 2; revoked (24.07.2013) by Environmental Protection Agency (Integrated Pollution Control) (Licensing) Regulations 2013 (S.I. No. 283 of 2013), reg. 42(1) and sch. 2, subject to transitional provision in para. (2).
E126
Previous affecting provision: pursuant to section exercised (1.04.2010, 1.06.2010, 1.12.2010, 10.04.2010, and 1.06.2015) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2010 (S.I. No. 143 of 2010), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E127
Previous affecting provision: pursuant to section exercised (16.07.2008) by Waste Management (Batteries and Accumulators) Regulations 2008 (S.I. No. 268 of 2008); revoked by European Union (Batteries and Accumulators) Regulations 2014 (S.I. No. 283 of 2008), reg. 49(1), subject to transitional provision in para. (2) and construed as per para. (3), as amended (30.07.2017) by European Union (Batteries and Accumulators) (Amendment) Regulations 2014 (S.I. No. 349 of 2014), reg. 2.
Monitoring and inspection.
15.—(1) (a) Each local authority and the Agency shall carry out, or cause to be carried out, such monitoring of the nature, extent and effects of emissions to the environment arising from the holding, recovery or disposal of waste as it considers to be necessary for the performance of its functions under this Act.
F55[(b)(i) Establishments or undertakings which carry out waste treatment operations, establishments or undertakings which collect or transport waste on a professional basis, brokers and dealers, and establishments or undertakings which produce hazardous waste, shall be subject to appropriate periodic inspections by the local authorities, the Agency and Dublin City Council, as appropriate.
(ii) Inspections concerning collection and transport operations shall cover the origin, nature, quantity and destination of the waste collected and transported.
(iii) The authorities referred to in subparagraph (i) may take account of registrations obtained under the Community Eco-Management and Audit Scheme (in this Act referred to as ‘EMAS’), in particular regarding the frequency and intensity of inspections.]
F56[(1A) Each local authority and the Agency shall carry out, or cause to be carried out, such monitoring of compliance with environmental conditions attached to a waste licence under section 41(2A) or section 41(2B) as it considers to be necessary having regard to the nature, location and size of the activity and the significance of its effects on the environment.]
F55[(2)(a) The persons referred to in section 39(1), the producers of hazardous waste and the establishments and undertakings which collect or transport hazardous waste on a professional basis, or act as dealers and brokers of hazardous waste, shall keep a chronological record of the quantity, nature and origin of the waste, and, where relevant, the destination, frequency of collection, mode of transport and treatment method foreseen in respect of the waste, and shall make that information available, on request, to the local authorities, the Agency or Dublin City Council, as appropriate.
(b) For hazardous waste, the records shall be preserved for at least 3 years (except in the case of establishments and undertakings transporting hazardous waste which shall keep such records for at least 12 months).
(c) Documentary evidence that the management operations have been carried out shall be supplied by the establishment or undertaking concerned at the request of the local authorities, the Agency or Dublin City Council, or of a previous holder, as appropriate.]
(3) (a) Where it appears necessary so to do for any purpose of this Act, a local authority or the Agency may require any person who holds or is in control of the recovery or disposal of any waste to carry out or arrange to have carried out such monitoring in relation to the activity concerned as the local authority or the Agency may specify and to keep and to supply to the local authority or the Agency such records of the said monitoring as the local authority or the Agency may specify.
(b) A person who fails to comply with a requirement under this subsection shall be guilty of an offence.
(4) Each local authority and the Agency shall, if so requested by the Minister, supply to the Minister or to any person specified by the Minister, at such intervals and in such manner as the Minister may require, records of any monitoring carried out under this section that are in its possession or control.
(5) Each local authority and the Agency shall carry out or take or cause to be carried out or taken such monitoring or other measures as it considers necessary to verify that any monitoring or records of such monitoring required by it under subsection (3) to be carried out or kept are being carried out or kept.
(6) Without prejudice to any other provisions of this Act, the Minister shall make regulations requiring the making of payments to the Agency or a local authority by any person holding, dealing in, or in control of the recovery or disposal of, waste for the purpose of defraying costs which may be incurred by the Agency or local authority in carrying out any monitoring or inspection or taking other measures under this section in relation to the activities aforesaid of that person.
(7) A defrayment, the payment of which is required under regulations under this section, shall be payable on demand and, in default of being so paid, shall be recoverable from the person concerned by the Agency or local authority concerned as a simple contract debt in any court of competent jurisdiction.
Annotations
Amendments:
F55
Substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 2011), reg. 6.
F56
Inserted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 7.
Modifications (not altering text):
C8
Application of subs. (2) restricted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011), reg. 36 as substituted (27.08.2020) by European Union (Waste Directive) Regulations 2020 (S.I. No. 323 of 2020), reg. 23.
[Hazardous waste produced by households
36. (1) By 1 January 2025, the Minister, the Agency or the local authorities in carrying out their respective functions under the Act of 1996, shall set up separate collection for hazardous waste fractions produced by households to ensure that they are treated in accordance with in accordance with sections 21A and 32(1) of the Act of 1996 and do not contaminate other municipal waste streams.
(2) Section 15(2) of the Act of 1996 and Regulations 33, 34, 35 and 45 shall not apply to mixed waste produced by households.
(3) Section 15(2) of the Act of 1996 and Regulations 35 and 45 shall not apply to separate fractions of hazardous waste produced by households until they are accepted for collection, disposal or recovery by an establishment or an undertaking which has obtained a waste licence or has been registered in accordance with section 39(1) of the Act of 1996 or Regulation 39.]
Editorial Notes:
E128
Power pursuant to section exercised (16.01.2016) by Waste Management (Collection Permit) (Amendment) Regulations 2016 (S.I. No. 24 of 2016).
E129
Offence under subs. (3) prescribed (24.07.2013) for purposes of Environmental Protection Agency Act 1992 (7/1992), s. 84(4)(a), by Environmental Protection Agency (Integrated Pollution Control) (Licensing) Regulations 2013 (S.I. No. 283 of 2013), reg. 41(d).
E130
Power pursuant to section exercised (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), in effect as per reg. 2.
E131
Power pursuant to section exercised (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), in effect as per reg. 1(2).
E132
Power pursuant to section exercised (31.03.2008) by Waste Management (Collection Permit) (Amendment) Regulations 2008 (S.I. No. 87 of 2008).
E133
Power pursuant to section exercised (31.03.2008) by Waste Management (Facility Permit and Registration) (Amendment) Regulations 2008 (S.I. No. 86 of 2008).
E134
Power pursuant to section exercised (20.05.1998) by Waste Management (Miscellaneous Provisions) Regulations 1998 (S.I. No. 164 of 1998), in effect as per reg. 1(2).
E135
Power pursuant to section exercised (20.05.1998) by Waste Management (Hazardous Waste) Regulations 1998 (S.I. No. 163 of 1998), in effect as per reg. 2.
E136
Previous affecting provision: pursuant to section exercised (1.04.2010, 1.06.2010, 1.12.2010, 10.04.2010, and 1.06.2015) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2010 (S.I. No. 143 of 2010), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E137
Previous affecting provision: power pursuant to section exercised (1.04.2010, 10.04.2010, and 1.12.2010) by Waste Management (End-of-Life Vehicles) (Amendment) Regulations 2010 (S.I. No. 142 of 2010), in effect as per reg. 3; as the only effect of this instrument was to amend S.I. No. 282 of 2006, it was rendered obsolete by its revocation, see below.
E138
Previous affecting provision: pursuant to section exercised (26.09.2008) by Waste Management (Restriction of Certain Hazardous Substances in Electrical and Electronic Equipment) (Amendment) Regulations 2008 (S.I. No. 376 of 2008), in effect as per reg. 3; rendered obsolete by revocation of S.I. No. 341 of 2005, see below.
E139
Previous affecting provision: pursuant to section exercised (23.09.2008, 26.09.2008, and 1.01.2009) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2008 (S.I. No. 375 of 2008), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E140
Previous affecting provision: pursuant to section exercised (16.07.2008) by Waste Management (Batteries and Accumulators) Regulations 2008 (S.I. No. 268 of 2008); revoked by European Union (Batteries and Accumulators) Regulations 2014 (S.I. No. 283 of 2008), reg. 49(1), subject to transitional provision in para. (2) and construed as per para. (3), as amended (30.07.2017) by European Union (Batteries and Accumulators) (Amendment) Regulations 2014 (S.I. No. 349 of 2014), reg. 2.
E141
Previous affecting provision: offence under subs. (6) prescribed (12.07.2004) for purposes of Environmental Protection Agency Act 1992 (7/1992), s. 84(4)(a) by Environmental Protection Agency (Licensing) (Amendment) Regulations 2004 (S.I. No. 394 of 2004), reg. 6(d), in effect as per reg. 2; revoked (24.07.2013) by Environmental Protection Agency (Integrated Pollution Control) (Licensing) Regulations 2013 (S.I. No. 283 of 2013), reg. 42(1) and sch. 2, subject to transitional provision in para. (2).
E142
Previous affecting provision: pursuant to section exercised (30.08.2001) by Waste Management (Collection Permit) Regulations 2001 (S.I. No. 402 of 2001); revoked (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), art. 2(1) and sch. 1, in effect as per art. 1(2); subject to transitional provision in art. 2(2).
E143
Previous affecting provision: pursuant to section exercised (20.05.1998) by Waste Management (Permit) Regulations 1998 (S.I. No. 165 of 1998), in effect as per reg. 1(2); revoked (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), art. 3(1) and sch. 1, in effect as per art. 2; subject to transitional provisions in art. 3(2), (3), and (4).
E144
Previous affecting provision: pursuant to section exercised (20.05.1998) by Waste Management (Transfrontier Shipment of Waste) Regulations 1998 (S.I. No. 149 of 1998), in effect as per reg. 1(2); revoked (12.07.2007) by Waste Management (Shipments of Waste) Regulations 2007 (S.I. No. 419 of 2007), reg. 12, in effect as per reg. 1(2).
E145
Previous affecting provision: pursuant to section exercised (20.05.1998) by Waste Management (Movement of Hazardous Waste) Regulations 1998 (S.I. No. 147 of 1998), in effect as per reg. 1(2); revoked (31.12.2011) by European Communities (Shipments of Hazardous Waste exclusively within Ireland) Regulations 2011 (S.I. No. 324 of 2011), reg. 19(2), in effect as per reg. 19(2).
Service of notices.
16.—(1) Any notice required to be served or given by or under this Act shall be addressed to the person concerned and served or given in one of the following ways—
(a) by addressing it to the person by name and delivering it to him or her,
(b) by leaving it at the address at which the person ordinarily resides,
(c) by sending it by post in a prepaid registered letter addressed to the person at the address at which he or she ordinarily resides,
(d) if an address for the service of notices has been furnished by the person, by leaving it at, or sending it by prepaid registered post addressed to him or her to, F57[that address,]
(e) where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and notice is required to be served on, or given to, him or her in respect of any premises, by delivering it to a person over the age of 16 years of age resident in or employed on the premises, or by affixing it in a conspicuous position on or F57[near the premises, or]
F58[(f) by such other means as may be prescribed.]
(2) Where the name of the person concerned cannot be ascertained by reasonable inquiry, a notice under this Act may be addressed to “the occupier”, “the owner” or “the person in charge”, as the case may be.
(3) For the purposes of this section, a company registered under the Companies Acts, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
(4) A person shall not at any time during the period of 3 months after a notice is affixed under subsection (1) (e) remove, damage or deface the notice without lawful authority.
(5) A person who contravenes subsection (4) shall be guilty of an offence.
Annotations
Amendments:
F57
Substituted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 25(a) and (b), S.I. No. 498 of 2003.
F58
Inserted (22.10.2003) by Protection of the Environment Act 2003 (27/2003), s. 25(c), S.I. No. 498 of 2003.
Editorial Notes:
E146
Previous affecting provision: pursuant to section exercised (16.07.2008) by Waste Management (Batteries and Accumulators) Regulations 2008 (S.I. No. 268 of 2008); revoked by European Union (Batteries and Accumulators) Regulations 2014 (S.I. No. 283 of 2008), reg. 49(1), subject to transitional provision in para. (2) and construed as per para. (3), as amended (30.07.2017) by European Union (Batteries and Accumulators) (Amendment) Regulations 2014 (S.I. No. 349 of 2014), reg. 2.
Time for the doing of certain things: Saturdays, Sundays, public holidays, etc.
17.—(1) Where a provision of this Act, or of any regulation made under this Act, or of any notice served under this Act, enables representations or objections to be made, or requires documents, particulars or other information to be furnished, before the expiration of a specified period and the last day of the period is a Saturday, a Sunday, a public holiday (within the meaning of the Holidays (Employees) Act, 1973) or any other day on which the principal office of the local authority concerned or the Agency (as the case may be) is closed, the representations, objections, documents, particulars or other information (as the case may be) shall be regarded as having been received before the expiration of that period if received by the local authority or the Agency on the next following day on which the principal office of the local authority or the Agency is open.
(2) In this section “representations or objections” includes submissions and observations.
Information.
18.—(1) The Minister, a local authority or the Agency may, for any purpose relating to his or her or its functions under this Act, by the service of a notice in writing on the person, require—
(a) any holder of waste, or
(b) any person, engaged in the importation, exportation, production, collection, recovery or disposal of waste, or any related or ancillary activity, or
(c) any person acting as a waste broker or dealer, or
(d) the occupier or person in charge of any waste facility,
to maintain such records and to furnish in writing to the Minister, local authority or Agency, as the case may be, within such period (being not less than 14 days after the date of the service of the notice) and, if appropriate, thereafter at such frequency as may be specified in the notice, such particulars, as to—
(i) any activity or process as aforesaid or any facility concerned,
(ii) provision proposed to be made or made or measures taken for the importation, exportation, collection, recovery or disposal of any waste concerned,
(iii) the origin, type, quantity, nature, composition and properties of waste concerned, or
(iv) any other related or ancillary matter,
as may be so specified.
(2) A person who fails to comply with a notice under this section or who furnishes any information in reply to such a notice which he or she knows to be false or misleading in a material respect shall be guilty of an offence.
(3) The Minister shall make regulations requiring—
(a) a specified class or classes of person carrying on a specified class or classes of waste recovery or disposal activity, or
(b) a specified class or classes of holder or producer of a specified class or classes of waste,
to maintain specified records for a specified period or periods, and to provide or make available specified information, including evidence of specified matters, to a local authority, the Agency or any other specified person, at such frequency, under such circumstances and in such manner as may be specified.
(4) Information obtained under this section by a local authority, or any summary or compilation of, or any report based on, such information may, and shall if the Minister or the Agency so requests, be furnished to the Minister or the Agency, as the case may be.
(5) Each local authority and the Agency shall compile or otherwise obtain, and furnish to the Minister, such statistics or other information relating to any aspect of waste production and management, at such frequency, as may be specified in writing by the Minister.
(6) Where the Agency or a local authority brings proceedings against a person in respect of an offence under this Act, and the person is convicted of that offence, the Agency or the local authority, as the case may be, shall, as soon as may be after the conviction of the person, inform each local authority or, as the case may be, each other local authority and the Agency of the fact that the person has been so convicted, giving such details, as it thinks appropriate, of the nature of the offence.
(7) Where the Agency grants, effects the transfer or accepts the surrender of a waste licence, it shall (unless the holder of the licence or the transferee thereof is a local authority) within a period of 21 days thereafter inform the local authority in whose functional area the activity, the subject matter of the licence concerned, will be, or (as the case may be) is or has been, carried on, of that fact.
(8) A person who contravenes a provision of regulations under subsection (3) shall be guilty of an offence.
Annotations
Editorial Notes:
E147
Power pursuant to subs. (3) exercised (12.04.2019) by Waste Management (Landfill Levy) (Amendment) Regulations 2019 (S.I. No. 182 of 2019).
E148
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E149
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E150
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
E151
Power pursuant to section exercised (30.06.2016) by Waste Management (Collection Permit) (Amendment)(No.2) Regulations 2016 (S.I. No. 346 of 2016).
E152
Power pursuant to section exercised (16.01.2016) by Waste Management (Collection Permit) (Amendment) Regulations 2016 (S.I. No. 24 of 2016).
E153
Power pursuant to subs. (3) exercised (1.06.2015) by Waste Management (Landfill Levy) Regulations 2015 (S.I. No. 189 of 2015), in effect as per reg. 2.
E154
Power pursuant to section exercised (15.05.2015) by Waste Management (Facility Permit and Registration) (Amendment) Regulations 2015 (S.I. No. 198 of 2015).
E155
Power pursuant to section exercised (15.05.2015) by Waste Management (Collection Permit) (Amendment) Regulations 2015 (S.I. No. 197 of 2015).
E156
Power pursuant to section exercised (7.05.2015) by Waste Management (Food Waste) (Amendment) Regulations 2015 (S.I. No. 190 of 2015).
E157
Power pursuant to section exercised (7.07.2014) by Waste Management (Facility Permit and Registration) (Amendment) Regulations 2014 (S.I. No. 320 of 2014).
E158
Power pursuant to subs. (3) exercised (1.07.2013) by Waste Management (Landfill Levy) (Amendment) Regulations 2013 (S.I. No. 194 of 2013), in effect as per reg. 2.
E159
Power pursuant to section exercised (10.12.2009) by Waste Management (Food Waste) Regulations 2009 (S.I. No. 508 of 2009).
E160
Power pursuant to section exercised (27.07.2009) by Waste Management (Prohibition of Waste Disposal By Burning) Regulations 2009 (S.I. No. 286 of 2009).
E161
Power pursuant to section exercised (31.03.2008) by Waste Management (Collection Permit) (Amendment) Regulations 2008 (S.I. No. 87 of 2008).
E162
Power pursuant to section exercised (31.03.2008) by Waste Management (Facility Permit and Registration) (Amendment) Regulations 2008 (S.I. No. 86 of 2008).
E163
Power pursuant to section exercised (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), in effect as per reg. 2.
E164
Offences under subss. (2) and (8) prescribed as offences for purposes of Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), regs. 36 and 38, (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), reg. 22(g), in effect as per reg. 2.
E165
Power pursuant to section exercised (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), in effect as per reg. 1(2).
E166
Offences under subss. (2) and (8) prescribed as offences for purposes of s. 34(5)(a) (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), reg. 21(g), in effect as per reg. 1(2).
E167
Power pursuant to section exercised (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), in effect as per reg. 1(2).
E168
Power pursuant to section exercised (23.06.2000) by Waste Management (Licensing) Regulations 2000 (S.I. No. 185 of 2000).
E169
Power pursuant to section exercised (1.05.2000) by Waste Management (Hazardous Waste) (Amendment) Regulations 2000 (S.I. No. 73 of 2000), in effect as per reg. 1(2).
E170
Power pursuant to section exercised (20.05.1998) by Waste Management (Miscellaneous Provisions) Regulations 1998 (S.I. No. 164 of 1998), in effect as per reg. 1(2).
E171
Power pursuant to section exercised (20.05.1998) by Waste Management (Hazardous Waste) Regulations 1998 (S.I. No. 163 of 1998), in effect as per reg. 2.
E172
Previous affecting provision: power pursuant to subs. (3) exercised (1.07.2013) by Waste Management (Landfill Levy) (Amendment) Regulations 2013 (S.I. No. 194 of 2013), in effect as per reg. 2; rendered obsolete by revocation of S.I. No. 434 of 2011, see below.
E173
Previous affecting provision: power pursuant to subs. (3) exercised (1.07.2012) by Waste Management (Landfill Levy) (Amendment) Regulations 2012 (S.I. No. 221 of 2012), in effect as per reg. 2; rendered obsolete by revocation of S.I. No. 434 of 2011, see below.
E174
Previous affecting provision: pursuant to section exercised (1.04.2010, 1.06.2010, 1.12.2010, 10.04.2010, and 1.06.2015) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2010 (S.I. No. 143 of 2010), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E175
Previous affecting provision: pursuant to subs. (3) exercised (1.09.2011) by Waste Management (Landfill Levy) Regulations 2011 (S.I. No. 434 of 2011), in effect as per reg. 2; revoked (1.06.2015) by Waste Management (Landfill Levy) Regulations 2015 (S.I. No. 189 of 2015), reg. 19(1), in effect as per reg. 2; subject to transitional provision in reg. 19(2).
E176
Previous affecting provision: power pursuant to section exercised (1.04.2010, 10.04.2010, and 1.12.2010) by Waste Management (End-of-Life Vehicles) (Amendment) Regulations 2010 (S.I. No. 142 of 2010), in effect as per reg. 3; rendered obsolete by revocation of S.I. No. 282 of 2006, see below.
E177
Previous affecting provision: power pursuant to section exercised (1.02.2010) by Waste Management (Landfill Levy) (Amendment) Regulations 2010 (S.I. No. 31 of 2010), in effect as per reg. 2; rendered obsolete by revocation of S.I. No. 199 of 2008, see below.
E178
Previous affecting provision: power pursuant to section exercised (31.12.2009) by Waste Management (Landfill Levy) Amendment Regulations 2009 (S.I. No. 550 of 2009), in effect as per reg. 2; rendered obsolete by revocation of S.I. No. 199 of 2008, see below.
E179
Previous affecting provision: pursuant to section exercised (23.09.2008, 26.09.2008, and 1.01.2009) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2008 (S.I. No. 375 of 2008), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E180
Previous affecting provision: pursuant to section exercised (16.07.2008) by Waste Management (Batteries and Accumulators) Regulations 2008 (S.I. No. 268 of 2008); revoked by European Union (Batteries and Accumulators) Regulations 2014 (S.I. No. 283 of 2008), reg. 49(1), subject to transitional provision in para. (2) and construed as per para. (3), as amended (30.07.2017) by European Union (Batteries and Accumulators) (Amendment) Regulations 2014 (S.I. No. 349 of 2014), reg. 2.
E181
Previous affecting provision: power pursuant to section exercised (1.01.2008) by Waste Management (Tyres and Waste Tyres) Regulations 2007 (S.I. No. 664 of 2007), in effect as per reg. 1(2); revoked (1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), in effect as per reg. 1(2).
E182
Previous affecting provision: pursuant to section exercised (15.12.2007 and 31.03.2008) by Waste Management (Packaging) Regulations 2007 (S.I. No. 798 of 2007), in effect as per reg. 3; revoked (1.10.2017) by Waste Management (Packaging) Regulations 2014 (S.I. No. 282 of 2014), reg. 36(1), in effect as per reg. 3; subject to transitional provision and construed as per reg. 36(2) and (3).
E183
Previous affecting provision: pursuant to section exercised (28.07.2006) by Waste Management (Landfill Levy)(Amendment) Regulations 2006 (S.I. No. 402 of 2006); revoked (1.07.2008) by Waste Management (Landfill Levy) Regulations 2008 (S.I. No. 199 of 2008), reg. 20, in effect as per reg. 2.
E184
Previous affecting provision: pursuant to section exercised (1.07.2008) by Waste Management (Landfill Levy) Regulations 2008 (S.I. No. 199 of 2008), in effect as per reg. 2; revoked (1.09.2011) by Waste Management (Landfill Levy) Regulations 2011 (S.I. No. 434 of 2011), reg. 19(1), in effect as per reg. 2; subject to transitional provision in reg. 19(2).
E185
Previous affecting provision: pursuant to section exercised (8.06.2006) by Waste Management (End-Of-Life Vehicles) Regulations 2006 (S.I. No. 282 of 2006), in effect as per reg. 3; revoked (21.06.2014) by European Union (End-of-Life Vehicles) Regulations 2014 (S.I. No. 281 of 2014), reg. 37(1), in effect as per reg. 3; subject to transitional provision and construed as per reg. 37(2) and (3).
E186
Previous affecting provision: pursuant to section exercised (5.07.2005) by Waste Management (Waste Electrical and Electronic Equipment) Regulations 2005 (S.I. No. 340 of 2005); revoked (30.07.2011) by European Communities (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2011 (S.I. No. 397 of 2011), reg. 3, in effect as per reg. 2.
E187
Previous affecting provision: pursuant to section exercised (2.07.2002) by Waste Management (Licensing) (Amendment) Regulations 2002 (S.I. No. 336 of 2002); revoked (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), reg. 2(1) and sch. 1, in effect as per reg. 1(2), subject to transitional provision in reg. 2(2).
E188
Previous affecting provision: pursuant to section exercised (13.03.2002) by Waste Management (Landfill Levy) Regulations 2002 (S.I. No. 86 of 2002); revoked (1.07.2008) by Waste Management (Landfill Levy) Regulations 2008 (S.I. No. 199 of 2008), reg. 20, in effect as per reg. 2.
E189
Previous affecting provision: pursuant to section exercised (30.08.2001) by Waste Management (Collection Permit) Regulations 2001 (S.I. No. 402 of 2001); revoked (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), art. 2(1) and sch. 1, in effect as per art. 1(2); subject to transitional provision in art. 2(2).
E190
Previous affecting provision: pursuant to section exercised (23.08.2001) by Waste Management (Licensing) (Amendment) Regulations 2001 (S.I. No. 397 of 2001); revoked (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), art. 2 and sch. 1, in effect as per art. 1(2).
E191
Previous affecting provision: pursuant to section exercised (20.05.1998) by Waste Management (Permit) Regulations 1998 (S.I. No. 165 of 1998), in effect as per reg. 1(2); revoked (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), art. 3(1) and sch. 1, in effect as per art. 2; subject to transitional provisions in art. 3(2), (3), and (4).
E192
Previous affecting provision: pursuant to section exercised (20.05.1998) by Waste Management (Movement of Hazardous Waste) Regulations 1998 (S.I. No. 147 of 1998), in effect as per reg. 1(2); revoked (31.12.2011) by European Communities (Shipments of Hazardous Waste exclusively within Ireland) Regulations 2011 (S.I. No. 324 of 2011), reg. 19(2), in effect as per reg. 19(2).
E193
Previous affecting provision: power pursuant to section exercised (19.05.1998) by Waste Management (Licensing) (Amendment) Regulations 1998 (S.I. No. 162 of 1998); rendered obsolete by revocation of S.I. No. 133 of 1997, see below.
E194
Previous affecting provision: pursuant to section exercised (27.03.1997) by Waste Management (Licensing) Regulations 1997 (S.I. No. 133 of 1997); revoked (23.06.2000) by Waste Management (Licensing) Regulations 2000 (S.I. No. 185 of 2000), reg. 50; subject to transitional provision in reg. 51.
Register to be maintained by each local authority and the Agency.
19.—(1) Each local authority and the Agency shall as soon as may be after the commencement of this section establish and maintain a register for the purposes of this Act, and shall make therein all such entries and additions as may, from time to time, be prescribed.
(2) A register under this section shall be kept at the principal office of the local authority concerned or the Agency, as the case may be, and shall be made available for inspection by any person during office hours.
(3) Where a request is made to a local authority or the Agency for a copy of an entry in the register maintained by it under this section, the authority or the Agency, as the case may be, shall issue such a copy to the applicant on, if it so requires, the payment by the applicant to it of a fee of such an amount (not exceeding the reasonable cost of making the copy) as it may determine.
(4) Every document purporting to be a copy of an entry in a register maintained by a local authority or the Agency under this section and purporting to be certified by an officer of the local authority or the Agency to be a true copy of the entry shall, without proof of the signature of the person purporting so to certify or that he or she was such an officer, be received in evidence in any legal proceedings and shall, until the contrary is proved, be deemed to be a true copy of the entry and to be evidence of the terms of the entry.
(5) Evidence of an entry in a register under this section may be given by production of a copy thereof certified pursuant to this section and it shall not be necessary to produce the register itself.
(6) A local authority shall notify, in such manner and at such times as may be prescribed, the Agency of such particulars entered in a register maintained by it under this section as may be prescribed.
(7) (a) A local authority or the Agency may keep a register under this section otherwise than in legible form so that the register is capable of being used to make a legible copy or reproduction of any entry in the register.
(b) References in the preceding provisions of this section to a copy of an entry in a register under this section shall be construed as including references to such a legible copy or reproduction.
Annotations
Editorial Notes:
E195
Power pursuant to section exercised (2.04.2018) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2018 (S.I. No. 96 of 2018), in effect as per reg. 2.
E196
Power pursuant to section exercised (19.12.2017) by Waste Management (Tyres and Waste Tyres) (Amendment) Regulations 2017 (S.I. No. 598 of 2017).
E197
Power pursuant to section exercised (14.09.2017 and 1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), part in effect on date of making, and part as per reg. 1(2).
E198
Power pursuant to section exercised (1.10.2017) by Waste Management (Farm Plastics) (Amendment) Regulations 2017 (S.I. No. 396 of 2017), in effect as per reg. 2.
E199
Power pursuant to section exercised (30.06.2016) by Waste Management (Collection Permit) (Amendment)(No.2) Regulations 2016 (S.I. No. 346 of 2016).
E200
Power pursuant to section exercised (16.01.2016) by Waste Management (Collection Permit) (Amendment) Regulations 2016 (S.I. No. 24 of 2016).
E201
Additional entries for register maintained under section prescribed (21.06.2014) by European Union (Packaging) Regulations 2014 (S.I. No. 282 of 2014), reg. 26, in effect as per reg. 3.
E202
Additional entries for register maintained under section prescribed (21.06.2014) by European Union (End-of-Life Vehicles) Regulations 2014 (S.I. No. 281 of 2014), reg. 17(1), in effect as per reg. 3.
E203
Additional entries for register maintained under section prescribed (1.03.2010) by Waste Management (Registration of Sewage Sludge Facility) Regulations 2010 (S.I. No. 32 of 2010), reg. 4, in effect as per reg. 1(2).
E204
Additional entries for register maintained under section prescribed (1.07.2008) by Waste Management (Registration of Brokers and Dealers) Regulations 2008 (S.I. No. 113 of 2008), reg. 5, in effect as per reg. 1(2).
E205
Power pursuant to section exercised (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), in effect as per reg. 2.
E206
Power pursuant to section exercised (31.03.2008) by Waste Management (Collection Permit) (Amendment) Regulations 2008 (S.I. No. 87 of 2008).
E207
Power pursuant to section exercised (31.03.2008) by Waste Management (Facility Permit and Registration) (Amendment) Regulations 2008 (S.I. No. 86 of 2008).
E208
Power pursuant to section exercised (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), in effect as per reg. 1(2).
E209
Power pursuant to section exercised (1.07.2006) by Waste Management (Packaging) (Amendment) Regulations 2006 (S.I. No. 308 of 2006), in effect as per reg. 1(2).
E210
Power pursuant to section exercised (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), in effect as per reg. 1(2).
E211
Power pursuant to section exercised (1.03.2003) by Waste Management (Packaging) Regulations 2003 (S.I. No. 61 of 2003), in effect as per reg. 3.
E212
Power pursuant to section exercised (23.07.2001) by Waste Management (Farm Plastics) Regulations 2001 (S.I. No. 341 of 2001), in effect as per reg. 1(2).
E213
Power pursuant to section exercised (30.04.1997) by Waste Management (Register) Regulations 1997 (S.I. No. 183 of 1997).
E214
Previous affecting provision: pursuant to section exercised (1.04.2010, 1.06.2010, 1.12.2010, 10.04.2010, and 1.06.2015) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2010 (S.I. No. 143 of 2010), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E215
Previous affecting provision: power pursuant to section exercised (1.04.2010, 10.04.2010, and 1.12.2010) by Waste Management (End-of-Life Vehicles) (Amendment) Regulations 2010 (S.I. No. 142 of 2010), in effect as per reg. 3; rendered obsolete by revocation of S.I. No. 282 of 2006, see below.
E216
Previous affecting provision: pursuant to section exercised (23.09.2008, 26.09.2008, and 1.01.2009) by Waste Management (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2008 (S.I. No. 375 of 2008), in effect as per reg. 3; revoked (13.07.2011) by European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011), reg. 46, in effect as per reg. 45.
E217
Previous affecting provision: pursuant to section exercised (16.07.2008) by Waste Management (Batteries and Accumulators) Regulations 2008 (S.I. No. 268 of 2008); revoked by European Union (Batteries and Accumulators) Regulations 2014 (S.I. No. 283 of 2008), reg. 49(1), subject to transitional provision in para. (2) and construed as per para. (3), as amended (30.07.2017) by European Union (Batteries and Accumulators) (Amendment) Regulations 2014 (S.I. No. 349 of 2014), reg. 2.
E218
Previous affecting provision: pursuant to section exercised (15.12.2007 and 31.03.2008) by Waste Management (Packaging) Regulations 2007 (S.I. No. 798 of 2007), in effect as per reg. 3; revoked (21.06.2014) by European Union (Packaging) Regulations 2014 (S.I. No. 282 of 2014), reg. 36(1), in effect as per reg. 3; subject to transitional provision and construed as per reg. 36(2) and (3).
E219
Previous affecting provision: power pursuant to section exercised (1.01.2008) by Waste Management (Tyres and Waste Tyres) Regulations 2007 (S.I. No. 664 of 2007), in effect as per reg. 1(2); revoked (1.10.2017) by Waste Management (Tyres and Waste Tyres) Regulations 2017 (S.I. No. 400 of 2017), in effect as per reg. 1(2).
E220
Previous affecting provision: pursuant to section exercised (8.06.2006) by Waste Management (End-Of-Life Vehicles) Regulations 2006 (S.I. No. 282 of 2006), in effect as per reg. 3; revoked (21.06.2014) by European Union (End-of-Life Vehicles) Regulations 2014 (S.I. No. 281 of 2014), reg. 37(1), in effect as per reg. 3; subject to transitional provision and construed as per reg. 37(2) and (3).
E221
Previous affecting provision: pursuant to section exercised (5.07.2005) by Waste Management (Waste Electrical and Electronic Equipment) Regulations 2005 (S.I. No. 340 of 2005); revoked (30.07.2011) by European Communities (Waste Electrical and Electronic Equipment) (Amendment) Regulations 2011 (S.I. No. 397 of 2011), reg. 3, in effect as per reg. 2.
E222
Previous affecting provision: pursuant to section exercised (2.07.2002) by Waste Management (Licensing) (Amendment) Regulations 2002 (S.I. No. 336 of 2002); revoked (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), reg. 2(1) and sch. 1, in effect as per reg. 1(2), subject to transitional provision in reg. 2(2).
E223
Previous affecting provision: pursuant to section exercised (30.08.2001) by Waste Management (Collection Permit) Regulations 2001 (S.I. No. 402 of 2001); revoked (31.03.2008) by Waste Management (Collection Permit) Regulations 2007 (S.I. No. 820 of 2007), art. 2(1) and sch. 1, in effect as per art. 1(2); subject to transitional provision in art. 2(2).
E224
Previous affecting provision: pursuant to section exercised (20.05.1998) by Waste Management (Permit) Regulations 1998 (S.I. No. 165 of 1998), in effect as per reg. 1(2); revoked (31.03.2008) by Waste Management (Facility Permit and Registration) Regulations 2007 (S.I. No. 821 of 2007), art. 3(1) and sch. 1, in effect as per art. 2; subject to transitional provisions in art. 3(2), (3), and (4).
E225
Previous affecting provision: pursuant to section exercised (1.08.1997) by Waste Management (Farm Plastics) Regulations 1997 (S.I. No. 315 of 1997), in effect as per reg. 1(2); revoked (23.07.2001) by Waste Management (Farm Plastics) Regulations 2001 (S.I. No. 341 of 2001), reg. 31, in effect as per reg. 1(2); subject to transitional provision in reg. 32.
E226
Previous affecting provision: pursuant to section exercised (1.07.1997) by Waste Management (Packaging) Regulations 1997 (S.I. No. 242 of 1997), in effect as per reg. 3; revoked (1.03.2003) by Waste Management (Packaging) Regulations 2003 (S.I. No. 61 of 2003), reg. 29, in effect as per reg. 3; subject to transitional provisions in reg. 30.
Expenses.
20.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
Cases
Curley v. Galway Corporation
[2001] IEHC 53 (30th March, 2001)
JUDGMENT of Mr Justice Kelly delivered the 30th day of March, 2001.
Introduction
1. This is the third time that a dump situate at Carrowbrowne, Headford Road, County Galway has been the subject of an application to this court. The dump is owned and operated by Galway Corporation (the developer). It is situate in the functional area of Galway County Council (the planning authority).
2. All three applications have sought the compel the developer to comply with its obligations under the Planning Acts. None of the applications were made by the planning authority but rather by residents who live in the Carrowbrowne area.
3. In the two preceding applications the residents have succeeded in obtaining orders compelling the developer to comply with its duties under the Planning Acts. Similar success has not been achieved in bringing about such compliance. As a result the present application seeks the sequestration of the assets of the developer and the committal to prison of the Galway City Manager by reason of the contempt of court of Galway Corporation.
The Planning History
4. The lands in suit have been used as a dump since 1972. In November, 1995 Keane J. (then a judge of this court) made an order closing down part of the dump. The reason for that order being made was the failure of the developer to comply with obligations imposed upon it by a planning permission obtained in respect of the dump. Thereafter an application for a fresh planning permission was made which sought to use the dump for a period of five years. Whilst that was granted by the planning authority, An Bord Pleanála on appeal allowed dumping for just two years. That permission expired in April, 1999. Fourteen conditions were attached to the permission.
5. In proceedings which were heard by me in December, 1998 the applicants complained of breaches of those conditions. I found in their favour and granted injunctions. I inter alia restrained all refuse dumping at the site from the 11th January, 1999 and directed the developer to continue to service the dump by carrying out the obligations imposed under the Bord Pleanála planning permission.
6. In the course of a judgment which I delivered on that occasion, I came to the conclusion that the developer had been guilty of a deliberate and conscious violation of the terms of the planning permission. Landfill which ought to have ceased no later than the 9th April, 1998 was still going on in December of that year.
7. This judgment ought to be read in conjunction with the findings which I made in my judgment of the 11th December, 1998, a copy of which I attach to this ruling.
8. In the light of the thoroughly unsatisfactory behaviour of the developer requiring the residents to obtain injunctions on two occasions and in the light of the findings made by me in December, 1998 it was to be expected that the developer (particularly since it itself is a planning authority) would be meticulous in complying with the terms of the order of the court. Such, unfortunately, has not proved to be the case. Rather on this hearing the developer has admitted further breaches of the planning permission granted by An Bord Pleanála and the order of this court of December, 1998.
The Applicants’ Complaints
9. The applicants complain of seven breaches on the part of the developer. They are: (a) the depositing of waste, (b) the disposing of liquid or aqueous sludge, (c) failure to landscape the dump in accordance with plans and particulars approved by the planning authority, (d) failure to landscape within the agreed time scale i.e. two years from the date of the order of An Bord Pleanála, (e) failure to maintain a perimeter drain, (f) failure to provide a perimeter road on the east side, (g) construction a leachate plant for which planning permission was not obtained and failure to construct the plant required by the planning permission.
10. At the hearing before me it was accepted that the developer is indeed in breach of the order of the court of December, 1998 in a number of respects. The conditions in relation to landscaping, the perimeter drain, the perimeter road and the construction of the leachate plant in accordance with the permission granted have not been observed by the developer. In respect of a number of these the developer has proceeded with its own course of action regardless of the conditions in the permission. This was done with full knowledge of the order made by this court. A dispute exists concerning dumping. There was no waste disposal activity on the site from January, 1999 until February of this year. Since then in the order of 200 truck loads of material called marl have been deposited. This material has the appearance of sludge but the developer says that when it dries out it is an appropriate material to use for landscaping purposes. The material is being supplied at no cost to the developer and is being hauled from a development site run by a company called O’Malley Construction Limited. That company clearly does not want it and is in effect giving it away. It is said that this material is being used for the purpose of restoration works. It appears to me that the marl is material being discarded by O’Malley Construction Limited and falls within the definition of ‘waste’ as contained in the relevant legislation. Such evidence of a scientific character as is produced in support of the developer’s contention is not in my view satisfactory since the analysis was not carried out for the purpose of the exercise being engaged in and on one view of it the marl is unsuitable for the very task for which the developer says it is being used. I take the view that the whole circumstances concerning the supply and delivery of this material is unsatisfactory. I am of opinion that so far as the dumping of this material is concerned the developer is also in breach of the terms of the order in respect of it.
The Approach of the Developer
11. At the hearing it was acknowledged that there had been serious breaches of the order of the court of December, 1998. An apology was tendered in that regard. I furthermore heard sworn testimony from the recently appointed City Manager as to the approach which he proposes to adopt. He indicated to the court that henceforth there would be compliance by Galway Corporation with its obligations and that insofar as planning permissions or approvals either for retention or new developments were concerned these would be attended to as a matter of urgency. He also indicated that he was prepared to have the court monitor the further use of the dump by Galway Corporation. Counsel on behalf of the developer acknowledged that the breaches which have taken place to date were very serious. He asked that in the light of the approach of the City Manger as expressed to the court under oath the court ought not to make an order for the sequestration of the developer’s assets nor commit the City Manager to prison for contempt.
The Legal Position
In Morris -v- Garvey [1982] I.L.R.M. 177 Henchy J. said at p. 180:
“When section 27(2) is invoked, the court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations, and in carrying out that function it must balance the duty and benefit of the developer under the permission as granted against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is ‘necessary to ensure that the development is carried out in conformity with the permission'”.
Conclusions
12. In this case the developer has now admitted to serious breaches of the court order granted in December, 1998. It is said that these were not intentional. That is difficult to accept in the light of the unappealed findings made by me in December, 1998 to the effect that as far back as then Galway Corporation had been guilty of a deliberate and conscious violation of the terms of the planning permission granted to it. There does not appear to have been much change in approach on the part of Galway Corporation from that which obtained in December, 1998 to date. For example the non-compliance with the planning permission in respect of the internal road took place in the summer of 1999. The engineer involved indicated that he was fully aware of the views of the court in respect of previous deviations from the terms of the planning permission. But as he thought it was the right thing to do he simply deviated from the planning permission. He says that he was not conscious that he was so doing but I find that difficult to accept given that he is an experienced engineer working for the developer which is itself a planning authority. The best that can be said for the developer in my view is that it was indifferent to the obligations imposed upon it both by the order of the court and the terms of the planning permission. Furthermore, these are not minor deviations from the terms of the permission. They are substantial and material. They occurred notwithstanding the appalling history that Galway Corporation already has in respect of compliance with its obligations under the Planning Acts. Worse still, the fact that the developer here is in its own right a planning authority, responsible for the enforcement of planning control in Galway City, sets an appalling example.
13. This is an extremely serious contempt of court which in the light of all that had taken place before concerning this site, must be viewed as such by the court.
14. The applicants are perfectly within their rights in seeking the orders which they do. The sequestration order would have devastating consequences for Galway Corporation. The committal of an individual to prison could have similar effects.
15. I have great sympathy with the applicants who are yet again in this court seeking to have Galway Corporation live up to its obligations.
16. As the contempt which has been proved here is a civil contempt, the object of making either of the orders sought is coercive. By making such orders it is hoped that the developer will be coerced into complying with the injunctions. In the light of the undertakings which I received on oath from the City Manager and of the other provisions of the order which I will make and which I will come to in a moment, I am not satisfied that it is necessary or appropriate to make either of the orders sought at this juncture.
17. Insofar as the committal of the City Manager is concerned it must be borne in mind that the present incumbent has only very recently taken up that post. His approach to this matter was to come to court personally and give undertakings to the court under oath. He also expressed contrition in respect of the past failures and has assured me of his personal involvement to ensure the Corporation’s compliance with its obligations in the future. In those circumstances I refuse the application which seeks to commit him to prison.
18. Insofar as sequestration is concerned I propose to defer making a decision on that upon terms. I am satisfied that the court must, in the words of Henchy J., “… become the guardian and supervisor of the carrying out of the permitted development according to its limitations” in this case. I therefore propose, at the expense of Galway Corporation, to appoint an independent engineer who will report to the court within a specified time as to the level of compliance by the Corporation with its obligations under the terms of the existing court order. He will also report on the progress being made in obtaining either the necessary consents or permissions required to regularise the position. In this regard the Corporation will be obliged to give full cooperation to this engineer so as to enable him to carry out his task effectively and to report to the court within the specified time.
19. I am also going to grant a further injunction restraining the deposit of any further marl at Carrowbrowne. I am not satisfied that the developer has any entitlement to do this under the terms of the existing permission and court order.
20. By these methods I hope to ensure compliance by the Corporation with its obligations without further ado. The application for the appointment of sequestrators will therefore be adjourned so as enable me to receive the report of the independent engineer.
21. Whilst the orders that I have made will deal with the future, I must nonetheless view what has occurred to date with the utmost seriousness. In view of the admitted breaches of the court order by the developer (which is itself a planning authority) and of the earlier deliberate and conscious violation of the terms of the planning permission (which in turn had been brought about only because of the order made by Keane J.), I must mark the court’s disapproval in a material way. Not to do so would be wrong. What message would be sent to other developers if this one, which is itself a planning authority, was allowed to behave as it has without the imposition of a sanction? I take the view that the appropriate way to do that is by the imposition of a fine. Taking all matters into consideration I impose a fine of £50,000.
22. The Corporation will also have to pay the costs of the applicants on the highest possible scale. I accordingly award them the costs of this application and any reserved costs attendant upon it on a solicitor and own client basis.
Meath County Council v Hendy & ors
[2020] IEHC 142 (03 March 2020)
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of March, 20201. At some point in the period around 2004 to 2012, between 70,000 and 100,000 tonnes ofwaste were deposited in an illegal dump at Ballynakill, Co. Meath on land owned by thefirst named respondent, which was being farmed by the second named respondent. Theremaining respondents have dropped out of the case (so reference to the respondentsmeans the first and second respondents).2. On 20th March, 2004, Meath County Council received a waste permit application formfrom the second named respondent. The council sought further information which wasnot provided, and the application was deemed incomplete and returned. No further wastepermit applications were made in respect of the lands. Nonetheless, significant dumpingof waste occurred on the lands, and an inspection on 23rd November, 2012 identified twolandfills containing inter alia building materials and mechanically treated waste crushedinto filings. The council served a notice under s. 55 of the Waste Management Act 1996on 10th December, 2012. It then appointed Mr. Declan Grimes, Waste EnforcementOfficer, to conduct a tier one environmental risk assessment, which identified that therewas mixed waste present in both landfills, estimated, as mentioned above, as between70,000 and 100,000 tonnes including household, commercial, construction & demolitionand hazardous waste including broken asbestos waste.3. The council then appointed URS (now trading as AECOM Consulting Engineers) to preparea tier two environmental risk assessment. The option identified as preferable by AECOMand the council was the removal of the waste material, which would cost an estimated€6.14 million or possibly less depending on the quantum of hazardous waste that turnedout to be present.4. On 11th September, 2015, the present proceedings were instituted by originating noticeof motion seeking orders under s. 57 of the 1996 Act requiring the respondents todiscontinue the unauthorised holding, recovery and disposal of waste at the site as well asa battery of other reliefs including orders for remediation. On 19th October, 2016 a finalorder in the proceedings was made by Noonan J., which can be summarised as follows:(i). the respondents were to discontinue the holding, recovery and disposal of waste onthe site – they haven’t done that;(ii). they were also to discharge the costs incurred by the council in its investigationsand reports – in that regard, the council sent a schedule of costs on 29thPage 2 ⇓November, 2017 in the amount of €209,554.74, but that includes not just theinvestigation costs, but also the purely legal costs which are a matter for legal costsadjudication; nonetheless, the respondents have not paid anything under eitherheading; I should also note that the costs of the enquiries and reports do not seemto be a matter for legal costs adjudication, but rather for the court to quantify if notagreed;(iii). the respondents were to carry out remediation in accordance with a timetable inthe third appendix to the second schedule of the order – again they have notcomplied with that requirement;(iv). the first named respondent was to make lands available for access, and accessapparently has been allowed when asked for, and he respondents were also toprovide documents set out in part one of the second appendix to the secondschedule of the order – however, those documents were not submitted to theEnvironmental Protection Authority; the respondents were also to permit EPAmonitoring, but the matter did not get to that point;(v). the respondents were to pay the costs and expenses of the council’s managementof the landfills within one month of receipt of itemised bills – no such bills weresubmitted so no contempt of court arises under that heading; and(vi). the respondents were also to pay costs including reserved costs to the applicant -that matter is currently in the legal costs adjudication process, which has beensuspended pending the determination of the current application.5. On 20th June, 2017 a further order of Noonan J. was made providing for substitutedservice of the original order and an extension of time for the works concerned to begin,to run once the original order was so served. Such service occurred on 28th July, 2017 inthe form of orders endorsed with a penal endorsement. In November, 2019 the secondnamed defendant pleaded guilty in long-running criminal proceedings in Trim Circuit Courtto an offence under s. 32 of the 1996 Act arising from matters the subject of the presentapplication. He was remanded in custody awaiting sentence and appeared at the hearingof the present motion on foot of a production order made by Meenan J. on 27th February,2020.6. On 4th December, 2019 the second named defendant appears to have written ascandalous letter to the council, a copy of which has been produced, demanding €365million from the relevant council official. The tone of that letter is grandiose andthreatening and it certainly does nothing for the second named defendant’s position.7. The applicant now moves on foot of a notice of motion dated 11th February, 2019 seekingattachment and committal of the first and second named respondents for “neglecting toobey and comply with the terms of the orders” of 19th October, 2016 and 20th June,2017.Page 3 ⇓8. I have received helpful and indeed vigorous submissions from Ms. Deirdre Hughes B.L.and Mr. David McEntee, Solicitor (who also briefly addressed the court on some specifictaxation-of-costs-related issues) for the applicant, and from Mr. Oisin Collins B.L. for therespondents. I have also received a full set of pleadings in the original substantiveapplication as well as in respect of the present contempt motion.Procedure for a contempt application9. Contempt procedure is notoriously complex and stubbornly resistant to judicialclarification, despite repeated efforts. One clear distinction, however, is between coerciveand punitive orders. Ms. Hughes made it explicit that her application is coercive ratherthan punitive. She says that I can punish the respondents as well on my own initiative if Isee fit, but I am not sure that that would add anything to the situation other thanunnecessary complication.10. The notice of motion for attachment and committal does not refer to O. 44 of the Rules ofthe Superior Courts. Ms. Hughes did refer to that order in oral submissions, but seemedto be majoring on the inherent or common law jurisdiction of the court discussed by PeartJ. (Irvine and Hogan JJ. concurring) in McCann v. Malone [2018] IECA 179 (Unreported,Court of Appeal, 21st June, 2018) at paras. 10 to 13. Order 44 is not a model of clarity ofdrafting, but the procedure envisaged is basically evident enough. The moving partybrings a motion under O. 44 r. 3 seeking leave for the attachment and committal of theperson in default. The court can then make either an order of attachment under O. 44 r.1, requiring the person to be brought before the court itself to answer for the contempt,or alternatively an order of committal under O. 44 r. 3, requiring the person to beimprisoned until either he or she purges the contempt or until further order. However,the inherent and common law powers of contempt are significantly wider.11. For example, the court has an inherent jurisdiction to impose financial penalties such as afine as an alternative to imprisonment. The court can also give such substantive orprocedural directions or orders as will ensure that its orders are upheld, an objective thattakes precedence over minor procedural infelicities (as pointed out by Peart J. in LaoisCounty Council v. Scully [2007] IEHC 212, [2009] 4 IR 488).12. Ms. Hughes said that the order she was looking for was not so much an order for theimmediate imprisonment of the respondents, but for an inquiry into whether or not therespondents are going to comply with the order of Noonan J. That seems to me to be anunnecessarily roundabout way of dealing with this issue. The normal way for the court tobe satisfied that orders are not being complied with is for the moving party to actuallyseek attachment or committal, or both (or, I could add, some other coercive order suchas a financial one). There is no particular necessity (at least in general) for a free-standing inquiry into whether a party intends to comply with an order, independently ofan application for something specific to happen on foot of such an inquiry, such asattachment or committal.13. In the circumstances of this case, there is no particular need for an inquiry. Therespondents are saying that they are not going to comply with the order because they sayPage 4 ⇓it is impossible to comply with the order. The three reasons advanced for that allegedimpossibility were firstly, that the second named defendant is in custody; secondly, thatthe first named defendant is elderly and was not involved with the running of theoperation; and thirdly, that the respondents do not have the money to remediate anyway.That latter point invokes the doctrine in Laois County Council v. Hanrahan [2014] IESC 36,36, [2014] 3 I.R. 143 per Fennelly J. at 187, that “if compliance is truly beyond the reachof one’s capacity, imprisonment as a coercive means should not be resorted to. That isnot to say that other measures may not be considered. Ultimately this becomes a matterfor the trial judge”.14. The respondents were also saying that the end goal of the order is inappropriate andsuggest that the court should revisit the substantive content of the order sought to beenforced. However, we do not get to that issue because contempt is not a process forrevisiting the merits of the original order. The process would be endless if that were so.15. A further complication is whether the court can or should separate a finding of contemptof court from the question of what consequential order is appropriate. The judgment inHanrahan reflects that distinction, although O. 44 doesn’t. At p. 186 of Hanrahan,Fennelly J. leaves in place the finding of contempt by the trial judge in that case andremits back to the High Court the question of what appropriate order should follow. Thatrecognises and accepts the legitimacy (at least where there is an added value in doing so)of the court separating the question of a threshold finding as to whether contempt hasoccurred from the secondary question of what appropriate order should be made on footof that finding. It seems to me, therefore, that the correct process for a coercive order inrespect of civil contempt is as follows:(i). if there is some added value to a separate preliminary finding in that regard, thecourt can first make a finding simpliciter as to whether the respondent is incontempt or not;(ii). if so, the question of whether and to what extent a respondent has the capacity tocomply with the order may need to be decided on, if that is an issue; and(iii). finally there is the question of the appropriate order, if any, on foot of any findingof contempt, which includes, but is not limited to the custodial orders referred to inO. 44, but may include financial orders as well; and in particular if there is nocapacity to comply, or limited capacity, the court may have to confine itself to non-custodial options, such as orders addressed to assets.16. In this case the position is as follows:(i). the respondents accept that they haven’t complied with the order of Noonan J.,although they do not accept that that should be called contempt;(ii). the respondents are pleading poverty, but have not put forward any appropriateevidence in that regard; andPage 5 ⇓(iii). as regards the appropriate order, there seems to be at least some acceptance incorrespondence that consideration may need to be given to a financial, rather thanan imprisonment-based, solution to the problem, although the primary obligation toidentify the remedy is on the council as moving party to put forward specifically tothe court what kind of financial order might be appropriate.11. For the sake of making the ultimate disposal of the proceedings as simple and convenientas possible, it seems to me best in all the circumstances to allow the applicant (if itwishes to do so) to restructure its motion in those terms. The second named respondenthas expressed a desire to show co-operation in the context of the criminal proceedings,and indeed such a restructuring will perhaps have the advantage of allowing him todemonstrate such co-operation in any reply, if he so wishes.12. The question of revisiting the merits of the original order as sought by Mr. Collins doesnot arise. The fact that he describes this as the “primary issue” does not change thatlegal reality. The enforcement stage is not a mechanism to revisit the question ofwhether the original (and here, as it happens, unappealed) orders should have beenmade in the first place.13. Strangely, the council has not registered a lis pendens in relation to the property, butpresumably they will consider doing so pending finalisation of the matter.Order14. Accordingly, the appropriate order will be as follows:(i). there will be no order on the existing notice of motion;(ii). I will give liberty to the applicant to bring a further motion seeking such of thefollowing reliefs as it wishes:(a). a declaration that the respondents are in contempt of court; in that regard Iaccept that this is not strictly necessary, but there may be an advantage to aseparating of that issue in this case;(b). a specific order for attachment and committal under O. 44 rr. 1 or 2, or both,as opposed to merely an inquiry asking the respondents to answer for theircontempt (as the existing motion does);(c). the council can particularise (if it wishes) the possible financial orders thatcould be made as an alternative to imprisonment or alternatively seek suchother orders by way of enforcement as are appropriate; and(d). if the council wants the court to quantify the costs of the investigationenvisaged by para. 2 of the order of Noonan J., it can seek that relief backedup by appropriate evidence;(iii). any such motion must specifically set out by reference to each paragraph ofNoonan J.’s order precisely what conduct or failure by each respondent constitutesthe contempt alleged;Page 6 ⇓(iv). I will direct the respondents to each file affidavits of means and give them liberty tosubmit any other evidence they wish by way of defence;(v). I will also list the matter again in early course for mention and retain seisin for nowas requested by Ms. Hughes;(vi). there will in principle be a production order directed to the Governor of CloverhillPrison for the production of the second named respondent for the substantivehearing of the motion;(vii). I will also direct the first named respondent to attend in person and likewise, willdirect that if the second named respondent is at liberty on the date of such hearing,he must also attend;(viii). given the previous difficulties with service, I will direct that by consent (helpfullyconveyed to the court by Mr. Collins) the service of the new motion and groundingaffidavit and any further documents may be effected by way of substituted serviceby ordinary post on the respondents’ solicitors;(ix). I will hear counsel on the timescale for all of this to happen; and(x). I will also record that there is no necessity for re-service of the original order asendorsed with the penal endorsement, and indeed Mr. Collins has clarified thatthere is no issue being taken on that.
Result: No result given
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