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Court of Appeal dismisses appeal and upholds a decision of the High Court granting an order for inspection of the entirety of a landfill site, on the grounds that: (a) the restriction proposed by the appellants was not compliant with the court’s original order for inspection, which applied to the entirety of the appellant's site, and the court was perfectly entitled to reject it for that reason; (b) the trial judge was entitled to come to the conclusion that the protocol proposed by the respondents was compliant with the original order and the least intrusive inspection which would satisfy the respondents’ requirements; and (c) the trial judge acted well within her discretion in making the order, and the appellants failed to establish that there was any basis for this court to interfere with the exercise of that discretion or that a real injustice will arise if the order was not set aside.
Noonan J (nem diss): appeal of a decision granting an order directing that inspection of a land fill site owned and operated by the appellants be of the entirety of the site - the appellants allege that the respondents delivered to the landfill site some 6,000 tons of waste from a development which included contaminated and hazardous material in breach of the written representations of the respondents and also in breach of the operating licence issued to the appellants by the Environmental Protection Agency - the appellants issued plenary proceedings against the respondent seeking various declarations, a mandatory injunction as well as damages for negligence, breach of duty (including statutory duty), breach of contract, negligent misstatement, misrepresentation, trespass and nuisance - the third respondent brought a motion before the High Court seeking an order pursuant to O. 50, r. 4 of the Rules of the Superior Courts for inspection and testing of the landfill property and the waste material the subject matter of the proceedings - Order 50, rule 4 of the Rules of the Superior Courts - an order was granted to this effect - the parties’ respective experts met with a view to attempting to agree a protocol for the inspection mandated by the terms of the order - as no agreement could be reached on the appropriate protocol, the appellants issued a motion seeking an order directing that inspection of the site be conducted in accordance with their consultant's view that the inspection and testing of the site should be confined to the impugned waste contained in the particular area in question - whether the trial judge erred in ordering a much wider inspection than is necessary having regard to the issues in the proceedings - whether the order for inspection made by the High Court was unjustified, unnecessary and disproportionate - decision was within discretion afforded to the trial judge - appeal dismissed.
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