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Waste operator seeking to close rival business described as 'notorious environmental polluter' by High Court judge

Mr Ferry had been jailed for failing to disclose what had become of €3m paid to him by householders to dispose of their waste.

Image: Leah Farrell/Photocall Ireland

A CO DONEGAL businessman jailed for nine weeks in 2019 for contempt of court arising out of illegal dumping has been described as “a notorious environmental polluter” by a High Court judge.

Justice Miriam O’Regan said the motivation why Jim Ferry had brought a High Court action seeking orders preventing two other companies, D&M Services and DM Waste run by John Caulderbanks from operating what he claims is an unauthorised dump at Labbadish, Manorcunningham, Co Donegal was “highly suspicious”.

The two companies had been hired by Donegal County Council to clean up an illegal dump operated by Ferry at Rossbracken, Co Donegal where an estimated 21,000 tonnes of rubbish were found in November 2016.

In a ruling on Ferry’s application, Justice O’Regan said his motivation in taking the case was “at worst” entirely disconnected from any planning concerns.

She said it appeared motivated by a “personal aggrievance agenda” given Ferry complained about how Donegal County Council had treated him and the respondents differently.

Justice O’Regan said he had also provided “a sanitised version” of his own adverse planning history.

Ferry claimed he was imprisoned for nine weeks because he could not comply with obligations to clean up his illegal dump within a two-month period, when he had in fact been jailed for failing to disclose what had become of €3m paid to him by householders to dispose of their waste.

The judge said social media posts by Ferry had also demonstrated considerable antagonism to all parties associated with the clean-up of his illegal dump.

‘risk of conflict of roles’

Justice O’Regan said Ferry’s claims that his application was urgent was also highly suspicious and seemed to be made in the knowledge that Caulderbanks had applied to An Bord Pleanála for substitute consent for his waste facility which allows applicants to seek retrospective permission in exceptional circumstances for a project that should have had an environmental impact assessment (EIA).

The judge noted that Ferry had delayed taking the action until June 2020 even though he had complained to Donegal County Council two years earlier.

While Ferry claimed he was distracted because of the council’s focus on himself, the judge noted he had tried to contest the local elections during the period as well as venting about Caulderbanks’ firms on social media.

Justice O’Regan said she was satisfied that granting the order sought by Ferry would have potential adverse impacts in Donegal if the waste services they provided had to close.

Instead, she said the most appropriate order would be to adjourn the proceedings for a 12 month period to allow Caulderbanks to regularise the planning status of his waste facility.

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She claimed the alleged unauthorised use of the site did not represent a gross breach given Caulderbanks had acted in good faith through his ongoing attempts since 2018 to regularise the planning status of the dump as well as the findings of An Bord Pleanála that an EIA was not required in relation to the use of the facility at Labbadish.

While the council had served two warning notices on Caulderbanks, the judge said it had not proceeded with a court application to prevent further use of dumping on the site.

Justice O’Regan said the council was a customer of Caulderbanks’s companies, particularly in relation to Ferry’s illegal dump and there was “a risk of conflict of roles in such circumstances.”

On the other hand, she acknowledged that An Bord Pleanála had identified exceptional circumstances in relation to the dump operated by Caulderbanks.

While there was a strong public interest in upholding the integrity of the planning system, Justice O’Regan said it was tempered somewhat by the fact that Caulderbanks’ firms employed 25 staff and had 25,000 customers and therefore contributed to the proper management of waste in a substantial part of north Donegal.

“There is no evidence of pollution so as to heighten the public interest because of environmental concerns,” she added.

The judge said Ferry had provided no supporting evidence to back up his claim that the respondent had polluted a local river.

About the author:

Seán McCárthaigh

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