Hanrahan v Greyhound Recycling and Recovery

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 26 May 2017
• Neutral Citation: [2017] IEHC 331
• Docket Number: [2013/10093P]
• Court: High Court
• Date: 26 May 2017

[2017] IEHC 331

THE HIGH COURT

Keane J.

[2013/10093P]

BETWEEN

GERALDINE HANRAHAN

AND

COLM HANRAHAN

PLAINTIFFS

AND

GREYHOUND RECYCLING AND RECOVERY

DEFENDANT

AND

RONAN BUCKLEY

AND

KEVIN FLANAGAN

THIRD PARTIES

Tort – S. 57 of the Waste Management Act 1996 – Dumping of waste on land – Liability – Claim against third party – Delay – Ex turpi causa non oritur actio

Facts: The local county council brought a claim against the plaintiffs for dumping the waste on their lands. The High Court granted orders against the plaintiffs for the removal of the waste and the remediation of the lands, which were not obeyed by the second plaintiff, and thus, the second plaintiff was committed into the prison. The plaintiffs had now commenced an action against the defendant on the basis that it was in real responsible for the transportation of waste material from its facility to the plaintiffs' lands. The plaintiffs were seeking damages for trespass and negligence from the defendant. The defendant sought an order for the dismissal of the plaintiffs' claim.

Mr. Justice David Keane dismissed the plaintiffs' claim. The Court held that it was already decided by the High Court that the plaintiffs were the holders of the waste on their lands. The Court noted that when the initial action was commenced by the local county council against the plaintiffs for illegally dumping the waste, the plaintiffs could have made the defendant as a respondent in those proceedings, but they did not do so. The Court observed that the maxim ex turpi causa non oritur action applied to the present case. The Court held that the provisions of the Waste Management Act 1996 could not permit the plaintiffs who willingly engaged in waste holding to assert that the co-holder of the waste (that is the defendant) owed a duty of care to insulate him from public law consequences of their joint actions. The Court found that the present proceedings amounted to a collateral attack on the initial proceedings issued against the plaintiffs by the local county council.

JUDGMENT of Mr Justice David Keane delivered on the 26th day of May 2017

Introduction

1 Who bears responsibility for an illegal dump that Laois County Council found on 6 April 2011 at an old quarry on certain lands within its functional area? The plaintiffs in this case ("the Hanrahans") are a widow ("Mrs Hanrahan") and her son ("Mr Hanrahan Junior"). The defendant ("Greyhound") is an unlimited company, engaged - as its name suggests - in the business of waste management.

2 The Hanrahan family farmlands ("the Hanrahan lands") are located at Graigueadrisly (sometimes referred to simply as "Graigue"), Rathdowney, County Laois. Mrs Hanrahan owned the lands jointly with her late husband until his death in May 2013 and is now the sole owner of them. Mr Hanrahan Junior obtained a leasehold interest in the lands from his parents on or about 11 October 2007, but he claims that, because of a family dispute, he was not in occupation of them between 2009 and the date of his father's death. The Hanrahans claim that, on various dates between March and April 2011, Greyhound was responsible for the transportation of waste material from its facility at Crag Avenue in Clondalkin, County Dublin, to the Hanrahan lands and the illegal dumping of that material there, without their knowledge or consent.

3 The Hanrahans contend that these actions on the part of Greyhound amount to trespass, negligence and breach of duty (including breach of statutory duty), nuisance and, for reasons explained below, an interference with Mr Hanrahan Junior's economic relations with his own employer. They claim damages (including aggravated or exemplary damages) for those torts, together with three separate declarations of right and an order pursuant to s. 57 of the Waste Management Act 1996, as amended ("the 1996 Act"). The three declarations they seek are: first, that Greyhound dumped waste on the lands between March and April 2011 without lawful authority and in breach of the 1996 Act; second, that Greyhound is liable to remove that waste from those lands; and third, that Greyhound is obliged to indemnify the Hanrahans for: (i) the costs they have incurred, or will incur, in respect of the removal of the waste and the remediation of the lands; and (ii) any liability they may have to any statutory authority arising from the dumping of that waste on those lands. The Order the Hanrahans seek under s. 57 of the 1996 Act is one directing Greyhound to effect the removal of the waste material and to remediate the lands.

4 In its defence, Greyhound puts Mrs Hanrahan on proof of her ownership of the lands and denies the lease of the lands in favour of Mr Hanrahan Junior. Greyhound denies that any waste material was removed from its facility, transported to the Hanrahans' lands and dumped there between March and April 2011. It denies that the Hanrahans did not authorise the dumping of noxious material on their lands or that they were unaware of that activity until so informed by Laois County Council in April 2011. Greyhound denies the loss, damage, inconvenience or expense claimed by the Hanrahans. In the alternative, it claims that they have failed to mitigate that loss. In the further alternative, it claims that any such loss was caused by the deceased Mr Hanrahan Senior (the husband of Mrs Hanrahan and father of Mr Hanrahan Junior). On that basis, Greyhound seeks an indemnity from his estate in respect of the Hanrahans' claim.

5 Greyhound advances other specific defences. First, it contends that the Hanrahans are guilty of inordinate and inexcusable delay or laches in asserting their claim, or of acquiescence in the circumstances giving rise to it, such that their proceedings should be struck out or they should be deemed estopped from seeking the reliefs they now claim.

6 Second, Greyhound asserts that the Hanrahans are not entitled to the reliefs they claim in circumstances where the High Court found Mr Hanrahan Junior in contempt of court for failing to comply with an Order of that Court requiring him to remedy the effects of the dumping of the waste material on the Hanrahan lands. Greyhound contends that this precludes the Hanrahans from obtaining the declarations they seek because it means that they do not come to court with clean hands.

7 Third, Greyhound pleads that the Hanrahans, or either of them, in concert with Mr Hanrahan Senior or alone, have by their own wrongful, unlawful or illegal acts brought about or permitted the holding or disposal of the said waste on the lands, rendering the present proceedings unsustainable in law as contrary to public policy or an abuse of process.

Background

8 Laois County Council ("the Council") issued proceedings against the Hanrahans (together with Mr Hanrahan Senior), by originating notice of motion dated 10 November 2011, seeking orders against each of them pursuant to s. 58 of the 1996 Act that: (a) they discontinue holding or disposing of waste on the lands; (b) they mitigate any and all effects of the said holding or disposal of waste on the lands through the excavation and removal of that waste; and (c) that they remedy any and all effects of the holding or disposal of that waste on the lands by: (i) excavating and removing it; (ii) providing confirmation that that has been done and that no residual soil contamination remains; (iii) remediating the landscape; and (iv) providing an independent report confirming that the remediation has been done, following confirmatory sampling at the conclusion of those remedial works ("the s. 58 proceedings").

9 According to the evidence adduced by the Council in the said proceedings, the subject site is a former sand and gravel pit on the Hanrahan lands covering 0.95 hectares of which 0.4 hectares has waste deposited on it. The waste is predominantly municipal solid waste, the volume of which is assessed at between 960 and 1,840 tonnes. On initial testing, carbon dioxide and methane levels on the site were found to exceed Department of Environment limits and the waste was found to have the potential to generate a leachate, which in turn has the potential to migrate to the local groundwater system and cause "significant pollution." The soils and subsoils at the site are predominantly sands and gravel with a high permeability. A regionally important karstified (that is to say, irregular limestone) aquifer is located close to, and potentially extends beneath, the site.

10 In response to an anonymous complaint on 6 April 2011, two authorised officers of the Council immediately attended at the Hanrahan lands on that date, arriving at approximately 3.40 pm. They observed a farmyard with a shed and surrounding farm lands. Upon entering the farmyard, they immediately detected a strong, foul smell consistent with waste disposal and observed waste stored at a location adjacent to the shed in the farmyard. On further investigation, the officers noted tractor type tracks leading from the yard into the surrounding farmlands. Those tracks led to the top of a field approximately 150 yards from the farmyard, on the other side of which the officers discovered the subject site. On a preliminary inspection, the officers observed three types of waste: an area of domestic, processed waste; an area of mixed waste including construction and demolition waste; and an amount of windblown litter over the site and field generally.

11 On subsequent investigation, the domestic processed waste was found predominantly to comprise shredded plastic of generally uniform size (originally bottles, food containers, toothbrushes etc) and minor amounts of organic waste, with a strong odour consistent with municipal solid waste that had undergone processing. An expert report commissioned by the Council concluded that, if the waste remains in situ, a strong leachate will be generated, and the site will pose a...