Environmental Protection Agency v Greenstar Holdings Ltd (partly (in Receivership)) and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 08 April 2014
• Neutral Citation: [2014] IEHC 178
• Court: High Court
• Date: 08 April 2014

[2014] IEHC 178

THE HIGH COURT

[No. 1682 P/2013]

[No. 47 COM/2013]

[No. 2793 P/2013]

[No. 46 COM/2013]

Environmental Protection Agency v Greenstar Holdings Ltd (partly in receivership) & Ors

COMMERCIAL

BETWEEN

THE ENVIRONMENTAL PROTECTION AGENCY

PLAINTIFF

AND

GREENSTAR HOLDINGS LIMITED (PARTLY IN RECEIVERSHIP)

GREENSTAR LIMITED (IN RECEIVERSHIP)

GREENSTAR NORTH EAST LIMITED

GREENSTAR SOUTH EAST LIMITED

GREENSTAR CONNAUGHT LIMITED

KTK LANDFILL LIMITED

DAVID CARSON

AND

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

DEFENDANTS

AND

CLM PROPERTIES LIMITED

AND

GREENSTAR HOLDINGS LIMITED

AND

KTK LANDFILL LIMITED

AND

THE GOVERNOR AND COMPANY AND THE BANK OF IRELAND

AND

DAVID CARSON

WASTE MANAGEMENT ACT 1996 S53(A)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S19

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S52

WASTE MANAGEMENT ACT 1996 S53A(4)(C)

WASTE MANAGEMENT ACT 1996 S53A(5)

WASTE MANAGEMENT ACT 1996 S53A(1)

WASTE MANAGEMENT ACT 1996 S53A(3)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 4(2)(E)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 191(2)

EEC DIR 98/2008 ART 1

EEC DIR 98/2008 ART 4

EEC DIR 98/2008 ART 12

EEC DIR 98/2008 ART 13

EEC DIR 98/2008 ART 3

EEC DIR 31/1999 RECITAL 5

EEC DIR 31/1999 RECITAL 18

EEC DIR 31/1999 RECITAL 28

EEC DIR 31/1999 RECITAL 29

EEC DIR 98/2008 ART 7

EEC DIR 98/2008 ART 8

EEC DIR 98/2008 ART 10

WASTE MANAGEMENT ACT 1996 S31(A)

WASTE MANAGEMENT ACT 1996 S53

WASTE MANAGEMENT ACT 1996 S39

WASTE MANAGEMENT ACT 1996 PART V

WASTE MANAGEMENT ACT 1996 S40

WASTE MANAGEMENT ACT 1996 S41

WASTE MANAGEMENT ACT 1996 S41(2)(B)(XII)

ADENELER & ORS v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2007 AER (EC) 82 2006 3 CMLR 30 2006 IRLR 716 2006 ECR I-6057

ALBATROSS FEEDS LTD v MIN FOR AGRICULTURE & FOOD 2007 1 IR 221 2006/38/8174 2006 IESC 52

EEC DIR 98/2008 ART 14

EEC DIR 31/1999 ART 10

EEC DIR 31/1999 ART 8(A)(IV)

FUTURA IMMOBILIARE SRL HOTEL FUTURA v COMUNE DI CASORIA 2009 3 CMLR 45 2010 ENV LR 9 2009 AER (D) 14 (SEP) (CASE C-254/08)

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 249

PONTINA AMBIENTE SRL v REGIONE LAZIO 2010 3 CMLR 1 2010 ECR I-1175 2010 AER (D) 09 (MAR) (CASE C-172/08)

EEC DIR 31/1999 ART 7

EEC DIR 31/1999 ART 8

EEC DIR 31/1999 ART 13(C)

EEC DIR 31/1999 ART 7(G)

EEC DIR 31/1999 ART 7(I)

WASTE MANAGEMENT ACT 1996 S53A(4)

WASTE MANAGEMENT ACT 1996 S53A(6)

Environmental protection – Waste management – Preliminary issue – Plaintiff seeking interpretation of s.53A of Waste Management Act 1996 – Whether all monies collected pursuant to s.53A were required by law to be used solely for the purpose of paying for the closure, restoration, remediation and aftercare of the landfill to which they relate

Facts: The defendant Greenstar Holdings is the holding company of a group of companies which operate a waste collection and transfer business. Greenstar held licences, issued by the plaintiff Environmental Protection Agency in respect of three landfills, and the defendant KTK Landfill Ltd. for the fourth. The licences imposed the condition that the licensee make financial provision to cover liabilities associated with the operation of the facilities and ensure that the costs of closure and aftercare for a period of at least thirty years shall be covered by the price to be charged for the disposal of waste at the facility ('Gate Fees'), and that the licence holder would comply with s.53A of the Waste Management Act 1996. The plaintiff CLM properties, in the second proceedings, carried out works at Greenstar landfills and was owed in respect of these works, contended to form part of the restoration, remediation and aftercare of the landfill. Judgment was given in two plenary proceedings on the same preliminary issue; whether, as the plaintiffs claimed, the monies collected pursuant to s.53A were required by law to be used solely for the purpose of paying for the closure, restoration, remediation and aftercare of the landfill to which they relate for a thirty year period and were not available to the licensee to invest, spend, charge or otherwise use in any form or manner such as the giving of security to the defendant Bank of Ireland, relying upon Futura Immobiliare (Case C-254/08) [2009] E.C.R. I-6995. The Bank submitted that Art. 10 of Council Directive 99/31/EC (Landfill Directive), is directed to the quantum of the Gate Fees to be paid by the waste producer and is not directed to the question as to what the operator of the site may do with the charge paid to it. The bank also submitted that Art. 8 of the Landfill Directive is intended to ensure Greenstar will have put in place financial security so that the funds will be available to carry out the restoration, remediation and aftercare, and that s.53A properly implements these articles. The plaintiffs requested that the High Court submit a preliminary reference to the CJEU pursuant to Art. 267 of TFEU on the interpretation of Art. 14 of Council Directive 2008/98/EC (Waste Framework Directive) and Art. 10 of the Landfill Directive, given effect by the 1996 Act.

Held by Geoghegan J, having considered Art. 14 and Arts. 8 and 10, that they do not require Member States to put in place a legal framework which restricts a landfill operator who is paid charges which have been quantified in accordance with Art. 10 from using some of those charges for other purposes. Geoghegan J held that s.53 enables the plaintiff to impose the provision by the licensee of financial security to ensure its obligations are discharged. Such monies should be available in the event of the insolvency of the licensee. As a landfill operator may be a legal or natural person carrying on a business, it is entitled to the benefit of its property and to use it as it sees fit. Any restrictions imposed by statute, in accordance with the principles of legal certainty, must be in clear and precise terms. Geoghegan J held that there is nothing in the wording of s. 53A which would justify an interpretation that it imposes a restriction on its use. The Court is precluded by Albatross Feeds Ltd. v. Minister for Agriculture [2006] IESC 52 from so interpreting s.53A.

Geoghegan J held that the monies collected pursuant to s.53A were not required by law to be used by the licensee solely for the purposes of closure, restoration, remediation and aftercare of the landfill concerned. Geoghegan J was not satisfied that the Court has jurisdiction pursuant to Art. 267 to request a preliminary ruling from the CJEU as it did not appear to be necessary in order to determine the preliminary issue.

Judgment approved.

1 1. This judgment is given in two sets of proceedings on an identical preliminary issue directed to be tried in each of the proceedings. The issue primarily concerns the interpretation of s. 53A of the Waste Management Act 1996 (as amended).

Background

2 2. By orders of the High Court (Charleton J.) on 24 ^th July, 2013, it was directed that a similar preliminary issue be tried in each set of proceedings. In each, the respective plaintiff was to be the plaintiff on the issue and the Governor and Company of the Bank of Ireland ("the Bank") to be the defendant. The orders did not identify the facts upon which the preliminary issue was to be tried. The proceedings are plenary proceedings, requiring in normal course to be tried on oral evidence. The parties did not, in advance of the hearing date, agree the facts upon which the preliminary issues were to be determined. The parties did not intend calling any evidence at the hearing of the preliminary issue. Hence, a difficulty arose at the commencement of the hearing of the preliminary issue as to the facts upon which the preliminary issue was to be determined. A further difficulty arose as to the formulation of the preliminary issue, which had been done by the Bank, having regard to the absence of any intention to call evidence or have determined facts which may be in dispute between the parties.

3 3. On the first day of the hearing, the parties indicated a willingness to agree relevant facts and to identify as the preliminary issue the question of law in dispute but excluding any reference to matters which would require a determination by the Court of facts in dispute or exercise of a discretion which would require an assessment by the Court of the full facts.

4 4. This was done and on the second day of the hearing, there remained a small dispute between the parties as to the formulation of the preliminary issue and, ultimately, the Court determined that the preliminary issue to be determined would be in the following terms:

"Whether ail monies collected pursuant to s. 53A(4)(c) of the Waste Management Act 1996, were required by law to be used solely for the purpose of paying for the closure, restoration, remediation and aftercare of the landfill to which they relate for a period of thirty years and were not available to the Licensee to invest, spend, charge or otherwise use in any form or manner."

5 5. There was agreement in each of the sets of proceedings as to the facts upon which the Court should determine the preliminary issue. These were reduced to writing and furnished to the Court.

6 6. In the course of the hearing, counsel for the Environmental Protection Agency ("the Agency") indicated that it intended asking the Court to make a reference to the Court of Justice of the European Union (CJEU) pursuant to Article 267 on the Treaty on the Functioning of the European Union (TFEU). At the request of the parties, there was a further hearing on that issue. Counsel for CLM Properties Ltd. ("CLM"), the plaintiff in the second proceedings, supported the application for a reference. The reference was opposed by the Bank.

7 7. The...