High Court of Ireland Decisions

22 February 2000



O'SULLIVAN J:

INTRODUCTION

This matter comes before me pursuant to an Order of the Supreme Court dated the 17 November, 1999 to the effect that:-

"The matter be remitted to the High Court to determine the issue whether the Defendant is providing an alternative compensatory feeding ground in accordance with the terms of the Order of Mr Justice O'Sullivan herein.

BACKGROUND

The Order of my own thus referred to is dated the 10 September, 1999 and the crucial part thereof provides as follows:-

"IT IS ORDERED that the Defendant its servants and/or agents do mechanically remove spartina as set out in the said document subject to

1. The use by the Defendant of existing access for machinery

2. The Defendant not commencing work until Duchas agree the exact boundaries of the removal area as set out in the said letter dated the 9 September 1999."

The letter of the 9 September, 1999 is addressed from Duchas to the Harbour Master who is employed by the Defendant and where relevant provides as follows:-

"We have considered the proposal by your company to mechanically remove Spartina as set out in the attached document.

We are satisfied with this proposal subject to:

1. Using existing access for machinery.

2. To avoid damage to adjoining non-Spartina habitats, work is not to start until Duchas agree the exact boundaries of the removal area."

The "attached document" provided as follows:-

"Drogheda Port Company Capital Dredging Scheme

Restoration works proposed for Spartina infested north shore

A full spraying programme, will be initiated in July/August 2000 in accordance with the Spartina eradication plan and the foreshore licence.

An area of 10 hectares of Spartina infested foreshore will be mechanically removed by bulldozer and excavator. The Spartina grass, will be taken off the mud flat to expose colonised mud flat as well as existing open pockets of mud flat. Only tracked machines or wide tyred excavators will operate within the polder to minimise the physical impact on the mud flat area. Only the surface of the mud flat over spartina colonised areas will be scraped off in the process. This removal process provides an immediate exposure of mud flat which will be subject to tidal flushing and further colonisation by macrofauna.

Information from the base line survey of the north shore indicates a high macrofuuna availability within the main spartina infested area south of Baltray.

Macrofauna means biomass in the main spartina infested area south of Baltray is (sic) typically greater than twice that surveyed in the Stagreenan polder.

The work of Spartina removal will be supervised by a suitably qualified marine consultant (Dr Beverly Kelso-Marenco).

The mechanical removal of Spartina will be undertaken within two weeks and would be completed within a further three weeks."

The Defendant has accepted at all times (correctly) that it was obliged to carry out the foregoing "restoration works" in connection with a dredging scheme of the estuary of the River Boyne which included the dumping of spoil on a polder on the south bank of the river known as Stagreenan polder. In making application for the relevant foreshore licence, the Defendant as part of its proposal indicated in an accompanying Environmental Impact Statement that it would ameliorate the environmental damage thus done to the Stagreenan polder by providing an alternative compensatory feeding ground for displaced birds on the north polder by removal of some 10 hectares of Spartina infested foreshore therein. Subsequent consultation with Duchas produced the correspondence quoted above.

On the 10 September, 1999 I made the Order referred to following an application by the Plaintiff for an interlocutory injunction restraining the Defendant from carrying out any further works on the north polder and directing the Defendant to reopen sluices so that water which had been excluded could be reintroduced.

On that application I took the view that the Plaintiff was correct in her assertion (which was not accepted by the Defendant) to the effect that the Defendant was obliged to provide the alternative compensatory feeding ground before the removal of the area in the Stagreenan polder or at least contemporaneously therewith. It is for this reason that the Order of the 10 September, 1999 is expressed in mandatory terms (the work on the Stagreenan polder having been already well advanced) and it is also for this reason that reference is made therein to the agreement of Duchas.

Following the making of the Order on the 10 September, 1999 work was in fact commenced, but not within the time stipulated in the Order and, according to the Plaintiff, in breach thereof in other respects as well.

Following an attempt between the parties at reaching an agreement, the matter came before Kelly J on the 22 October, 1999 pursuant to a further Motion seeking interlocutory relief, the terms of which are set out in an ex tempore ruling given by Kelly J on the same date. That application sought the prohibition of further work by the Defendant whether in purported compliance with the Order of the 10 September or otherwise and a further interlocutory Order, once again seeking to compel the Defendant to open the controlling sluice and to restore the tidal inflow to Stagreenan polder.

That application was refused by Kelly J, and the Plaintiff appealed to the Supreme Court which on the 17 November, 1999 allowed the appeal in part and directed the matter to be sent back in the manner to which I have already referred.

PRELIMINARY POINTS OF CLARIFICATION

(a) Counsel are agreed that the hearing before me, pursuant to the Supreme Court Order, is the final determination of the case between the parties, and also that the matter should proceed on oral evidence with cross-examination in the usual way supplemented by the evidence already given on Affidavit in the interlocutory application subject to the exclusion therefrom of any inadmissible hearsay evidence.

(b) As to the scope of the issues between the parties, there are two views, the narrow view and the broad view.

The narrow view of the question directed in the Order of the Supreme Court (". . . whether the Defendant is providing an alternative compensatory feeding ground in accordance with the terms of the said Order . . .") derives from the view taken thereof by Kelly J in his judgment of the 22 October, 1999 wherein he said:-

"Nowhere in the Order of O'Sullivan J does it expressly provide that the work is to be done to the satisfaction of Duchas but both sides have understood this to be so. In addition the work was to be supervised by Doctor Beverly Kelso of Marenco . . . The work is being done under the supervision of the person nominated by the Court Order, namely Doctor Kelso, and the work has been carried out to the satisfaction of Duchas, the National Parks and Wildlife Service . . . (Reference is then made to a letter from Mr John Flynn of Duchas confirming this) . . .

It seems to me that in these circumstances the authority which is competent to evaluate the work being carried out is satisfied with it. It does not appear to me that I can look behind this expression of satisfaction by Duchas. The Plaintiff might well have grounds for moving this application if she adduced evidence to the effect that Duchas was dissatisfied. But I do not think that the Court would be justified in setting aside the Order of O'Sullivan J unless it was indicated that Duchas regarded the works being carried out as substandard . . ."

The judgment of the Supreme Court was delivered by the then Chief Justice Hamilton CJ. The Chief Justice refers to the foregoing opinion of Kelly J and whilst it was held that the learned trial Judge erred in law in relying on the letter from Duchas in face of the Affidavit of the Plaintiff, the judgment does not appear to indicate one way or another whether Kelly J's view to the effect that the authority which is competent to evaluate the work being carried out is satisfied with it and in the absence of evidence to the contrary (assuming always that such evidence is appropriately given: that is by way of sworn evidence as distinct from an exhibited letter) the Court would not be justified in setting aside the Order of the 10 September, 1999.

The broader view asserts that the opinion of Duchas, no matter how appropriately evidenced, cannot take over the Court's function so that the Court must look at the other ingredients of the Order of the 10 September, or at the very least, at the reasonableness of the approval by Duchas of the works already done.

If the narrow view is correct then there is little more to be said, because evidence was given before me by Mr John Flynn who said that he is the individual in that service who is charged with supervising the Defendant's works, he is a Deputy Regional Manager with Duchas stationed in Mullingar and has been with the service for thirty years. He was aware of the Order of the Court and together with Doctor Kelso and Martin Donnelly, Harbour Master of the Defendant, agreed the boundaries of the alternative compensatory feeding ground (on the 23 September, 1999); agreed the method of carrying out the work comprising scraping the surface by a digger, minimising sediment removal and dumping the spoil on a temporary basis on a site near the road to the north. He paid three visits to the site and as far as he could see work was proceeding satisfactorily and in compliance with the Order of the Court.

In cross-examination he accepted that he did not learn the exact terms of the Court Order until he was in Court on the last day of the hearing before me, he agreed to a widening of the access from the road to the compensatory site, pointed out that an inappropriately tracked vehicle was on site on the 12 October and was satisfied that it was replaced with a suitable vehicle promptly, disagreed that too much soil was removed in the course of scraping off the Spartina grass and, overall, was satisfied with the works being carried out by the Defendant.

In my view it is quite clear that Duchas, in the person of John Flynn (the only individual in that organisation with the relevant responsibility) is satisfied with the work and with the boundaries referred to in the Court Order (albeit that these may not be "exact") and despite other complaints made by the Plaintiff such as that the work started late.

If, therefore, the narrow view is the correct one, I would, without more, dismiss the Plaintiff's application.

The broader view, derives, I think, not only from the fact that the judgment of the Supreme Court does not indicate one way or another whether the "narrow view" is correct, but also from the fact that at page six the learned Chief Justice indicates that there are a number of issues between the parties when he said:-

". . . But it has to be accepted that there are disputed issues of fact in this case, particularly the issue as to whether or not the work being carried out by the Defendant/Respondent on the north shore is effectively damaging the environment, damaging the area' s potential compensating feeding ground and as to whether the work is being properly carried out."

Later, at page nine, the phraseology which found its way into the formal Order already cited, is used where the High Court is directed:-

". . . to determine the issue and this is a fundamental issue to the parties whether the Defendants are providing an alternative compensatory feeding ground in accordance with the terms of the Order of Mr Justice O'Sullivan."

SUBMISSIONS

In the context of this wider approach Mr Gaffney SC for the Plaintiff submitted that the Defendants were in breach of the Order in that:-

1. They were in delay (in the manner set out already in the Order of Kelly J, on the 22 October 1999);

2. The access had been widened and hard-core laid into the salt marsh;

3. An incorrect machine had been used for a week (again as instanced in the Order of Kelly J);

4. The removal was not confined to the top layer but material was scooped too deep, and also damage was done by the removal of material from and the dumping of spoil on the salt marsh as distinct from the mud flat area;

5. The work was not supervised by Doctor Kelso;

6. The exact boundaries of the 10 hectare site referred to in the Order were never agreed with Duchas;

7. A satisfactory alternative feeding ground was not provided as can be shown both from an analysis of the very small amounts of food available after the spartina grass had been removed and also from bird counts of feeding birds after such removal which show very low usage by these birds.

Mr Connolly SC for the Defendant submitted that:-

1. This is not an attachment or contempt motion, but rather has arisen in the context of an application by the plaintiff to revisit the interlocutory Order on the basis that new grounds should now justify a change therein;

2. There is on the present application, unlike that before Kelly J, sufficient evidence to satisfy the Court that the Order is complied with (whether on the narrow or broad ground), and

3. the various specific heads of complaint made by Mr GAFFNEY SC are explained or comprise infractions which are not sufficiently serious to justify granting the reliefs sought.

GENERAL OBSERVATIONS

Before moving to consider the specific heads of complaint, I would make one or two general observations of my own as follows:-

(a) The purpose of the Order of the 10 September was to ensure the provision by the Defendant of a satisfactory alternative feeding ground contemporaneously with the work on the Stagreenan polder and also to minimise the damage to that alternative feeding ground, particularly by confining use to the existing access, requiring the exact boundaries of the 10 hectare site to be agreed by Duchas before work commenced, limiting vehicles to tracked or wide tyred vehicles, limiting the work to the scraping off of only the surface, specifying that the work would be under the supervision of a suitably qualified professional (named in the Order) and commenced within time (this being a temporary alternative site intended for use by over-wintering birds).

(b) To a significant extent, in my opinion, the philosophy underlying this particular method of making good the environmental damage to the Stagreenan polder, is taken for granted by the Court (which is no expert in these matters as was pointed out by Kelly J) and is not open for debate between the parties to the litigation.

Specifically, I do not think it is open to the Plaintiff to seek to impugn the work of the Defendant on the basis of asserting that the alternative feeding ground is inadequate no matter how perfectly it is carried out by reference to the Court Order or the regime undertaken in the Environmental Impact Statement. If the Defendant complies with the Order and the Statement then failure of the alternative feeding ground should not result in a Court Order prohibiting the work.

Equally, I do not think it is open to the Defendants to say that in the light of subsequent evidence (to the effect that the anticipated damage to the Stagreenan polder is not as bad as was thought at first) the need for the provision of the alternative site has reduced so that compliance with the Court Order can be relaxed.

Both these latter themes seemed to me to inform some of the evidence during the case before me but I think once a project has been granted a licence on a particular basis, then it is not open to the Court, in effect, to modify the terms of the licence. The role of the Court is simply to ensure that those provisions are carried out.

SPECIFIC ISSUES

1. Existing access

On the first day of work (6 October, 1999) entrance was made by the Defendant's vehicles not via the existing entrance but at a turning bay in the road opposite or near the house of Terry O'Brien, a wood carver, (who lives adjoining and gave evidence at the hearing before me). Mr O'Brien was angry, communicated with the Harbour Office, and was told to write in a letter of complaint which he did and a copy of it was produced in evidence.

Subsequently the existing evidence was widened and stones placed on the salt marsh to facilitate the entrance of vehicles into the alternative site.

This evidence was not disputed. There was a clear breach of the requirement to use the "existing access" and, in my view, a breach, at least in spirit, of the terms of the Order to the extent that the existing access was widened without further reference to the Court.

2. Delay

The evidence before me was no different in principle to that on Affidavit before Kelly J. I concur with his views that the delay was caused by matters outside the control of the Defendant and, of itself, is not a breach which would justify granting the Plaintiff relief.

3. Determination of the "exact boundaries"

This was not done. The Defendant's witnesses accepted that a roughly triangular shape was agreed at a meeting on the 23 September, 1999 by Doctor Kelso, the Harbour Master, Martin Donnelly and John Flynn of Duchas. A subsequent map with a roughly drawn rectangular shape prepared under the general supervision of Doctor Kelso was produced with the intention of indicating (as distinct from defining exactly) where the work of removing spartina grass should occur.

I do not understand the Defendant seriously to contend that this complies with the Order that Duchas would agree "the exact boundaries of the removal area". From the point of view of the work itself, I am inclined to accept the opinion of the three individuals who agreed the overall site of the work, that their arrangement is acceptable in principle and poses no environmental hazard of itself. From the point of view, however, of the Plaintiff, who was deeply concerned with the way in which this work was being carried out, it meant that not only was there not a prior agreement by Duchas of the "exact boundaries" of the removal area, but there was no map with such boundaries displayed on it which could be given to her and by reference to which she could, as she was in my view entitled, check to see that the work was being carried out in accordance with the Court Order.

4. Use of unsuitable vehicles

Once again, the evidence in relation to this was, in principle, the same as was before my colleague Kelly J on the application of the 22 October, 1999. There was, however, one new element; the work commenced on Wednesday the 6 October; neither Doctor Kelso nor John Flynn attended on site until the 12th. On that day John Flynn objected to the offending tractor and trailer which was promptly replaced with a more suitable one. If either he or Doctor Kelso had attended at the commencement of the work or any day before the 12 October, then this damaging element would have been identified sooner and to that extent less damage done by a tractor and trailer which were clearly in breach of the Court Order. Whilst, perhaps, in the overall context, this was not a gross violation of the Order, it does constitute, in my opinion, yet another increment of departure from the terms of the Order which cannot be entirely overlooked.

5. Damage to the salt marsh area

The Plaintiff said in evidence that on Friday the 8 October (the third day of the works) she saw machines on the salt marsh and they were doing serious damage. John Flynn (of Duchas) said that one-third of the spoil found its way onto the salt marsh, whilst two-thirds was on an old stone-dumping ground. There is clear, unchallenged, evidence that deep (some 35 centimetres deep) tracks were made by vehicles between the Spartina extraction site and the temporary spoil dumping site near the road and there is some evidence from local inhabitants of work done in the salt marsh area.

I do not think the vehicle tracks amount to a breach of the Order because I accept Dr Kelso's evidence that for the work to be effective, vehicles had to have access into the mud flats and therefore had to cross the intervening terrain (which included the salt marsh in part). Whilst I accept that the dumping of one-third of the spoil on the salt marsh area (as distinct from the pre-existing stone dump area) is not desirable, I do not think that this is a gross infraction. Regarding the evidence of local inhabitants, I am not prepared to say that this was sufficiently precise as to amount to proof on the balance of probabilities of any meaningful damage to the salt marsh area.

6. Did the Defendants dig too deep?

The Order specifies that "only the surface . . . will be scraped off . . .". It does not specify the depth of the surface: it is therefore necessary, as the Order specifies, that the work be supervised by a suitably qualified marine consultant. The clear intent of the Order is that the grass be removed so that the colonised mud flat and existing open pockets of mud flat be exposed but that no more than the surface be removed because this would do environmental damage.

The Plaintiff herself gave evidence that on the 8 October she saw a long armed machine "scooping" material at a point about 150 metres from the road and depositing it in an area which she thought might have been 100 metres from the road. Later she said that the method changed so that more stubble was left. Declan Collins (a member of Bird Watch who works in Eircom) said that on the 7 October he saw deep tracks being formed about 45 centimetres deep and others of the same depth he thought, with water in them and these went across the salt marsh. Hard core was laid across the polder.

Aine Walsh (an Environmentalist with a Masters Degree in Environmental Science from Trinity College) said that she saw a new road on the salt marsh and that after October the whole area was an awful mess, was mushed and flattened, squashed and scraped.

The top layer was removed over an area about 1 1/2 times the size of a football field. Terry O'Brien (a wood carver who lives nearby), in addition to giving the evidence about the entrance on the first day to which I have already referred, said that on that occasion the holes were being dug far too deep.

Michael Gunn, a vet, said that the plants and grass had been removed but some stubble was left here and there. There were trenches through the area which was left like a rugby pitch after three or four senior cup matches on a wet day.

Larry Lenihan, who lives nearby and is a member of Bird Watch and who has participated in several bird counts, said he refused to do a bird count this year because there was no polder left any more.

Dr Kelso said that she visited the site on several days and saw the work there. The vehicle tracks were there but were to be limited if possible to one track in accordance with her directions. She said that the machinist did not take out scoops of earth but rather carefully scraped the surface and took several inches at most and did so very competently.

Martin Donnelly, the Harbour Master, said he attended at the site nearly every day because not only was he concerned with a Court Order, but also it happened to be on his daily round and was a mere ten minutes from his office. He confirmed that there was only one vehicle track and said that he discussed the operation with the driver and gave Dr Kelso's written directions to him and was satisfied that the driver, Michael Murray, worked quite diligently and was in compliance with the Order.

John Flynn of Duchas would not agree that there was evidence that the excavator bucket had scraped too much or too deeply.

My conclusion in relation to these allegations is as follows:-

1. There was always going to be a mess given the nature of the work;

2. It was inevitable that deep vehicle tracks would be created across the surface of the terrain (including in part the surface of the salt marsh) and I accept that every reasonable effort was made by the Defendant to minimise this and it seems to have been successful in achieving a single vehicle track rather than several. That being the case, it must follow to some extent that the single tracks would be particularly deep.

3. Dr Kelso, while maintaining that the surface was scraped (as distinct from scooped) also acknowledged that it is not possible to keep a completely uniform level.

In my view there may well have been departures from an optimum depth but overall I consider that the amount of spoil removed with the Spartina grass has been kept within reasonable limits. My impression is that as the work progressed, more stubble remained. In this context I am bearing in mind that the work was always going to be messy, the terrain is uneven and boggy and to that extent difficult. I do not think that the Plaintiff has established on the balance of probabilities that the Defendant is in breach of the Order in this regard.

Is the Defendant providing an alternative compensatory feeding ground?

The evidence in relation to this falls into two categories, namely, a scientific assessment of the bird food available in the alternative site, and a count of birds actually feeding thereon.

(a) Has bird food been provided?

Dr James Wilson (a distinguished Zoologist specialising in marine biology) gave evidence of samples taken and of his conclusion that the food available in the alternative site is approximately one-tenth of what he would expect. Commenting on the difference between his results and those of Dr Kelso, he emphasised that numbers of individual animals is less important than the amount of biomass shown in the results. On the basis of biomass, his results were virtually the same as those of Dr Kelso. He employed a one centimetre sieve (whereas Dr Kelso employed a half centimetre sieve). He agreed with Dr Kelso's evidence that the half centimetre sieve was in accordance with UK standard practice but this practice, he pointed out, was directed to identifying suitable habitats whereas his study was concerned with assessing the amount of food (biomass) available for the birds. In this latter aspect, his report was very similar to that of Dr Kelso and showed very much reduced biomass.

Dr Kelso, for her part, relied on the UK standard practice, and sought to explain the difference between her results (which showed higher numbers of food items available for the birds in the alternative site after the work that was done than did Dr Wilson's study) by reference to her use of the smaller sieve size. She remained perplexed, however, as to the divergence in their results. A suggestion was made to her that perhaps her samples came from outside the area worked on by the Defendant (this suggestion assumed plausibility when various maps were compared and her sample locations appeared to be outside the work area) but she rejected this on the basis that she had clear photographs to show that her samples were taken within the work area.

Dr Wilson's explanation to the effect that biomass is the critical determinant in the context of assessing food availability seems to me to make sense. I would hesitate to come to a firm conclusion on this basis alone, but for it is worth, my view is that there is, as yet, a low or reduced amount of biomass in the alternative site.

(b) The bird counts

Michael Gunn (a vet) produced bird counts for December and January. All experts agree that one can ignore the plover (both golden and green (lapwing)) as they are mainly present as roosters as distinct from feeders (although some low percentage of these can be feeding). These counts show that the alternative site is not favoured by varieties of feeding birds which are, however, present in areas outside the alternative sites and adjacent thereto. This suggestion was accepted by Oscar Merne, an acknowledged ornithological expert who has been employed with Duchas for thirty years. The overall thrust of his evidence was that the feeders displaced from the Stagreenan polder could be accommodated elsewhere in the estuary and that the cleared alternative site was much less critical than was originally thought. In his view the Boyne Estuary had extra capacity for an influx of red shank at winter time which has happened on occasions before and the provision of an alternative site on the north polder was not critical.

Dr Partridge (a doctor in marine biology) gave evidence that the redistribution of the key species (for example red shank) was taking place from the Stagreenan polder to elsewhere in the estuary. The increased use of the cleared area provided additional feeding albeit a small amount.

In cross-examination, he acknowledged that the method of providing an alternative food source (by clearing Spartina grass from the north polder as indicated in the Environmental Impact Statement) did not accord at any time with his view. He thought that very few birds used the Spartina area and he insisted that his bird counter (Tom Cooney) was experienced but acknowledged that mention was made in the bird count that the Spartina cleared area was part of a larger area (with the inference, I thought, that feeders favoured the adjacent areas rather than the cleared area).

I formed the distinct impression that the ornithologists were not particularly enthusiastic about the attractions of the alternative site as a compensatory food resource for birds displaced from the Stagreenan polder, nor indeed did it seem to me that they were unduly exercised by the reduction or loss thereof as a food source given its context (comprising less than 10% of the entire) in the overall Boyne Estuary.

In this context they were prepared to concede, as it were, that there was some advantage by way of increased food resource in the removal of the Spartina grass, but it had its limits and on balance, I think the evidence showed that feeding birds favoured the areas adjoining the cleared areas rather than otherwise.

My conclusion under this heading, namely, as to whether the Defendants are providing an "alternative compensatory feeding ground" is somewhat mixed: in principle they are carrying out the surface scraping work of removing the Spartina grass in tolerable compliance with their obligations as set out in the Environmental Statement, in the document attached to the Duchas letter of the 9 September, 1999 and, accordingly, with the Order of the 10 September, 1999. On the other hand, insofar as it is relevant to this application, my impression is that this particular method of compensating the loss to the Stagreenan polder has not worked very well but that this is something which arises because of the unsuitability of this methodology originating in the Environmental Impact Statement (at least in the view of the ornithologists who gave evidence in Court) rather than any serious failure on the part of the Defendants to implement that methodology.

CONCLUSIONS

The Defendants are in breach of the Order of the 10 September 1999 in a number of ways indicated in this judgment. These breaches, when viewed in the context of damage to the environment, seem to me to fall rather more on the technical side than on the substantial side. By this I mean that the initial entry by way of the wrong access, the subsequent widening of the access and building of the hard-core track, the delay in time and the failure to agree the "exact boundaries" of the ten hectare site and the use for six days of the inappropriately wheeled vehicle and the incursion, such as it was, of work into the salt marsh are all breaches which, whilst of course they have impacted on the environment, have not done so to a degree which is grossly disproportionate to the inevitable impact which the works were always going to have even if they were carried out with punctilious observance of the spirit and letter of the Court Order and, behind it, the methodology set out in the Environmental Impact Statement.

Given that I have held that there was no unduly deep removal of the surface it seems to me to follow that any under-achievement in terms of food supply of the Spartina cleared site arises not because of the failure of the Defendant to comply with the Order and the Environmental Impact Statement, but because of the limitations of the philosophy underlying that Statement, at least in the opinion of the experts who appeared in Court.

In my view, the Defendant should continue to be restrained from carrying out or continuing the work referred to in the Order of the Supreme Court until such time as a map is agreed by Duchas which sets out the exact boundaries of the ten hectare removal site referred to in the Order of the 10 September 1999. I would expect this map to be available within a matter of days from this date and a prompt application made by the Defendant on production thereof for the lifting of this extended interlocutory Order so that the work of providing an alternative feeding ground should be recommenced as soon as possible. The provision of this alternative source has at all times been as a temporary resource for over-wintering feeding birds. I would expect that on the Defendant's application an indication would be available to the Court as to a reasonably efficient time frame within which the entire ten hectare site would become available, the production of this time schedule to be prepared under the supervision of Dr Kelso and, of course, the continued work to be in this as in all other respects, in compliance with the Order of the 10 September 1999.