John Ronan & Sons v Clean Build Ltd (in voluntary liquidation) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 04 August 2011
• Neutral Citation: [2011] IEHC 350
• Court: High Court
• Date: 04 August 2011

[2011] IEHC 350

THE HIGH COURT

[No. 93 M.C.A./2008]

[No. 88 M.C.A./2009]

John Ronan & Sons v Clean Build Ltd & Ors

IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 (AS AMENDED) AND THE PROTECTION OF THE ENVIRONMENT ACT 2003

AND IN THE MATTER OF SECTION 57 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 48 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

AND IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 49 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

BETWEEN:

JOHN RONAN AND SONS

APPLICANT

AND

CLEAN BUILD LIMITED (IN VOLUNTARY LIQUIDATION), LAURENCE MULLIN, JOHN CHARLES FARRELL, JAMES REDMOND, LIAM O'RUA AND GARY ROE

RESPONDENTS

AND

SOUTH DUBLIN COUNTY COUNCIL

NOTICE PARTY

John Ronan & Sons v Clean Build Ltd & Ors

IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 AND 2003

AND IN THE MATTER OF AN APPLICATION BY SOUTH DUBLIN COUNTY COUNCIL PURSUANT TO SECTION 57 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 48 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

SOUTH DUBLIN COUNTY COUNCIL

AND

KEN FENNELL (LIQUIDATOR), CLEAN BUILD LIMITED (IN VOLUNTARY LIQUIDATION), LIAM O'RUA, GARY ROE, JOHN RONAN AND SONS, LAURENCE MULLIN, JAMES REDMOND, AND JOHN CHARLES FARRELL

PROTECTION OF THE ENVIRONMENT ACT 2003 S48

PROTECTION OF THE ENVIRONMENT ACT 2003 S49

WASTE MANAGEMENT ACT 1996 S57

WASTE MANAGEMENT ACT 1996 S58

WASTE MANAGEMENT ACT 1996 S5

WASTE MANAGEMENT (REGISTRATION OF BROKERS & DEALERS) REGS 2008 SI 113/2008 REG 19

EEC DIR 75/442

EEC DIR 2006/12

WASTE MANAGEMENT (REGISTRATION OF BROKERS & DEALERS) REGS 2008 SI 113/2008 REG 15

WASTE MANAGEMENT ACT 1996 S57(1)(A)

WASTE MANAGEMENT ACT 1996 S57(1)(B)

WASTE MANAGEMENT ACT 1996 S57(1)(C)

LOCAL GOVT (WATER POLLUTION) ACT 1977

WASTE MANAGEMENT ACT 1996 S55

WASTE MANAGEMENT ACT 1996 S56

LOCAL GOVT (SANITARY SERVICES) ACT 1964

WASTE MANAGEMENT ACT 1996 S14

WASTE MANAGEMENT ACT 1996 S34

WASTE MANAGEMENT ACT 1996 S39

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

TREATY OF ROME ART 174(2)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288

GRIMALDI v FONDS DES MALADIES PROFESSIONNELLES 1989 ECR 4407 1991 2 CMLR 265 1990 IRLR 400

WICKLOW CO COUNCIL v FENTON & ORS (NO 2) 2002 4 IR 44 2002/28/7382

MIN FOR ENVIRONMENT & ORS v IRISH ISPAT LTD & JACKSON 2005 2 IR 338 2004/31/7139 2004 IEHC 278

CORK CO COUNCIL v O'REGAN & AGGREGATES SUPPLIES & TRANSPORT LTD 2009 3 IR 39 2005/12/2461 2005 IEHC 208

WASTE MANAGEMENT ACT 1996 S39(1)

LAOIS CO COUNCIL v SCULLY & ORS 2006 2 IR 292 2006/33/7051 2006 IEHC 2

WICKLOW CO COUNCIL v O'REILLY & ORS UNREP CLARKE 8.2.2006 2006/58/12369 2006 IEHC 265

WICKLOW CO COUNCIL v O'REILLY & ORS UNREP CLARKE 2.3.2007 2007/60/12967 2007 IEHC 71

ENVIRONMENTAL PROTECTION AGENCY v NEIPHIN TRADING LTD & ORS UNREP EDWARDS 3.3.2011 2011 IEHC 67

INTERPRETATION ACT 2005 S27(2)

WASTE MANAGEMENT ACT 1996 S58(1)

PLANNING AND ENVIRONMENTAL LAW

Waste Management

Environmental pollution - âÇÿPolluter pays' principle - Waste Management Directive - Waste Framework Directive - Corporate polluter - Liability of directors - Whether independent liability rested with directors - Whether directors actively involved in running of site - Apportionment of liability - Legal effect of âÇÿpolluter pays' principle - Holder of waste - Definition of holder - Manner of remediation - Cork County Council v O'Regan [2005] IEHC 208, [2009] 3 IR 39 and Laois County Council v Scully [2006] IEHC 2, [2006] 2 IR 292 followed - Grimaldi v Fonts des maladies professionnelles (Case C-322/88) [1989] ECR 4407, Wicklow County Council v Fenton (No 2) [2002] 4 IR 44, Minister for the Environment v Irish Ispat Ltd [2004] IEHC 278, [2005] 2 IR 338, Wicklow County Council v O'Reilly [2006] IEHC 265, (Unrep, Clarke J, 8/2/2006), Wicklow County Council v. O'Reilly [2007] IEHC 71, (Unrep, Clarke J, 2/3/2007), Environmental Protection Agency v. Neiphin Trading Ltd [2011] IEHC 67, [2011] 2 IR 575 considered - Waste Management Act 1996 (No 10), ss 5, 57 and 58 - Council Recommendation 75/436/Euratom, ECSC, EEC - Council Directive 75/442/EEC - Relief granted (2008/93MCA, 2009/88MCA - Clarke J - 4/8/2011) [2011] IEHC 350

John Ronan & Sons v Clean Build Ltd

Facts: The two sets of proceedings arose in respect a Site and the question who was responsible to the problems there now requiring remediation. Legal and factual issues arose about the liability of the applicant as occupier of the site pursuant to the Waste Management Act 1996 as amended and the Waste Framework Directive, Directive 75/442/EC as amended. The issue of whether fallback orders could be made and the application of polluter pays principles. A report (MEL report) had been formulated and submitted earlier to the Court and undertakings had also previously been given.

Held by Clarke J. that the Court would make an order requiring the carrying out of works as specified in the MEL report subject to a timescale that they be completed by the end of 2012.

Reporter: E.F.

1. Introduction

2 2 1.1 This case involves what happened at a Site ("the Site") at Bohernabreena Road in County Dublin. The Site was for many years used by the applicants ("Ronan") in the first of the two cases named in the title of this judgment ("the Ronan Proceedings") as a skin and hide factory following on from a planning permission granted in May, 1969. That business continued, with some variations in methodology, until the early years of the last decade. However, in October, 2004 Ronan leased the Site to the first named defendant in the Ronan Proceedings ("Clean Build"). The purpose of the lease was to enable Clean Build to commence business as a facility for the recycling, recovery, collection, segregation and reclamation of certain building products. That business continued until the controversies which are the subject of these proceedings came to a head in 2008. The substance of those controversies arose out of the build up of a large amount of building materials on the Site in circumstances where it is contended that much of that activity was unlawful. Ronan commenced the Ronan Proceedings in 2008 for the purposes of obtaining various orders designed both to prevent a continuance of what was said to be illegal activity and to procure an appropriate restoration of the Site.

3 3 1.2 Not long afterwards the applicant in the second set of proceedings ("South Dublin") ("the South Dublin proceedings") also commenced a set of proceedings raising at least many of the same issues.

4 4 1.3 It will be necessary to make specific reference to the personal respondents in both the Ronan Proceedings and the South Dublin Proceedings in due course. Clean Build went into liquidation and the first named respondent in the South Dublin proceedings ("Mr. Fennell") was appointed as its liquidator. In substance, it appears that Clean Build was hopelessly insolvent. Mr. Fennell indicated as much to the court and adopted the position of not taking any further part in the proceedings. It would appear that any order against Clean Build would have been futile for Clean Build had not the resources to comply with any order which the court might have made. In addition, Clean Build was subsequently dissolved and no longer exists. Whilst its name remained in the title of both proceedings its dissolution meant that the cases against it effectively came to an end. In any event, activity on the Site has ceased so that the real question which continues to be in dispute between the parties concerns what is to be done about the historical problem which remains afflicting the Site because of the build up of building materials to which I have referred. Each of the personal respondents (with the exception of Mr. Fennell) was at one time or another a director and/or a shareholder of Clean Build.

5 5 1.4 For completeness it should be noted that South Dublin was joined as a notice party in the Ronan proceeding as well. It will be seen that there is, therefore, on any view, a significant overlap between the two sets of proceedings. Indeed, complaint is made both by Ronan and the personal respondents that the South Dublin Proceedings were unnecessary and gave rise to duplication and added cost. This will be returned to later. In the remainder of this judgment the term personal respondents should be read as not including Mr. Fennell.

6 6 1.5 Against that very general background a series of specific issues arises to which I now turn.

2. The Issues

2 2 2.1 It does not appear to be disputed but that there is a significant problem at the Site which requires remediation. Very detailed expert evidence was filed in both proceedings concerning the works that were said to be necessary to remediate the Site. However, for reasons which I will address in the course of this judgment, much of that dispute had, to a very large extent, disappeared by the time the case ended. The case was conducted on the basis of affidavit evidence with cross examination being permitted. Towards the end of this judgment I make some comments on whether the summary nature of the process by which these proceedings were required to be brought is necessarily the most appropriate form of procedure in all cases involving allegations of unlawful waste activity.

3 3 2.2 There remains, however, very serious issues between the parties as to who is responsible for the problems that now require remediation and in particular, what parties can properly be the subject of court orders requiring action to be taken. It was not seriously contested but that Clean Build itself had a liability to remediate the Site. However, for the reasons already pointed out, Clean Build no longer exists and even if restored to the register of companies would not be in a position to meet any such obligation. There is nothing to...