Judge reminds OPW of obligation to protect nature after Bandon fish kill

A DISTRICT court judge has called on the Office of Public Works (OPW) to learn lessons from what happened with the flood relief works that took place on the Bandon river, which led to a fish kill over five years ago.

At Bandon District Court last Friday, Judge Mary Dorgan said that the OPW owes a duty of care to the people of Ireland and that it is their obligation to protect nature, while also keeping the public informed about the full extent of works.

Judge Dorgan made the comments when convicting Wills Bros Ltd of Foxford, Co Mayo, of injuring or disturbing the spawn or fry of salmon, trout or eels. Wills Bros Ltd were contracted by the OPW to carry out works on the Bandon River as part of a multi-million euro flood relief scheme, said to be the biggest in Europe at the time. This long-running case was first heard in February 2018 and last heard in March 2019 until last week’s verdict was delivered.

Two other companies, Byrne Looby Partners Water Services Ltd and Rivus Ltd, were also prosecuted by Inland Fisheries Ireland (IFI) for the same offence but they had their cases dismissed last Friday. The incident occurred on May 10th 2017 when it was estimated that 200 fish were killed during the course of the flood relief scheme.

A previous court sitting heard that fishery officers had visited the site that day and that a new ‘haul road’ had been created on the river, which is used to dredge material from the river. The presence of a fish stand, which is a protected structure, meant that the road could not be constructed tight to the bank of the river. A separate pool of water then formed but lost water rapidly and it was estimated that over 30 salmon fry, 20 plus trout and 20 plus grass eels were trapped as a result of the rapid dewatering.

Judge Dorgan said that from the evidence heard she found the facts proven against Wills Bros Ltd beyond reasonable doubt. She noted that an electrofishing licence had not been applied for by Wills Bros Ltd, which would have allowed for the temporary shocking of fish, which would then allow them to be easily removed.

‘Wills Bros Ltd should have applied for this and it was their responsibility to apply for it and this equipment could have been used to assist the fish,’ said Judge Dorgan, who added that the company was not indemnified against prosecution.

She noted that fishery officers had observed workers using nets to remove the fish from the pool and that there was an air of panic among them.

However, in summing up, Judge Dorgan said there was a huge job of work taking place on the Bandon river, which would protect the town from future flooding events. But she added that it was ‘absolutely incumbent on the OPW to remember that they are acting for the people of Ireland and it’s their obligation to protect nature’ while also keeping the public fully informed about the extent of the works.

She said it was very difficult for the public to delve into the documentation on display at the time and make appropriate comments, and that there is no indication if comments from members of the public were considered during the consultation period.

Judge Dorgan also said it shouldn’t be a case of saying ‘we have the money, we do the work, we dig up the river, we put a road down the middle of it and it will all be grand.’

‘I hope this might be a lesson to the OPW when there are other works, and they need to be transparent and very honest. And maybe they need to do a mock-up of the river and show people what they were doing, as it wasn’t clear from the documentation,’ said Judge Dorgan.

‘I really hope the OPW might consider what they heard and what happened here and maybe there was a more gentle way of doing this work.’

Judge Dorgan convicted Will Bros and deferred penalty until September 30th. She requested the probation service to ascertain if an option of restorative justice could be applied, while the subject of costs will also be decided then.