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

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 01 December 2011
• Neutral Citation: [2011] IEHC 498
• Court: High Court
• Date: 01 December 2011

[2011] IEHC 498

THE HIGH COURT

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

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

[No. 4806 S/2010]

John Ronan & Sons v Clean Build Ltd & Ors

[2011] IEHC 498

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

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

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:

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

SOUTH DUBLIN COUNTY COUNCIL

AND

LIAM O'RUA, GARY ROE AND JOHN RONAN AND SONS

PROTECTION OF THE ENVIRONMENT ACT 2003 S48

PROTECTION OF THE ENVIRONMENT ACT 2003 S49

JOHN RONAN & SONS v CLEAN BUILD LTD & ORS UNREP CLARKE 4.8.2011 2011 IEHC 350

BANKRUPTCY ACT 1988 S75

WASTE MANAGEMENT ACT 1996 S56(2)

WASTE MANAGEMENT ACT 1996 S57

WASTE MANAGEMENT ACT 1996 S58

WASTE MANAGEMENT ACT 1996 S56

PLANNING AND ENVIRONMENTAL LAW

Waste Management

Environmental pollution - âÇÿPolluter pays' principle - Remediation - Liability - Joint and several liability - Whether respondents liability was joint and several - Whether respondent could be made liable for damage for which they were not responsible - Holder of waste - Whether holder of waste residually responsible for remediation in absence of adverse findings - Whether remediation to be carried out by licensed and qualified waste professionals - Whether responsible respondents liable to pay for remediation by waste professionals - Whether court could order respondents to enter into contract with suitable waste professionals - Whether assessment of respondents' means should be prospective - Whether share of respondents found unable to pay for remediation to be paid by those able - Whether court should grant âÇÿorder over' - Whether holder of waste should act as guarantor to remediation works - Bankruptcy - Whether bankrupty of respondent affected liability for remediation - Whether liability for remediation should form part of provable debts in bankruptcy - Whether other respondents should be jointly and severally liable any shortfall of bankrupt respondent's liability - Local authority - Whether local authority entitled to recover monies already expended in remediation - Whether holder of waste had shown fair issue to be tried in defending application to recoup monies expended - Whether private persons or bodies entitled to recover monies already expended on remediation - Whether uninterested parties other than public authorities entitled to enter onto land and incur expense in remediation - Whether holder of waste had private law avenues to recover monies already expended on remediation - John Ronan & Sons v Clean Build Ltd (in voluntary liquidation) [2011] IEHC 350 (Unrep, Clarke J, 4/8/2011) considered - Waste Management Act 1996 (No 10), ss 56, 57 & 58 - Orders made (2008/93MCA, 2009/88MCS & 2010/4806S - Clarke J - 1/12/2011) [2011] IEHC 498

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

1. Introduction

2 2 1.1 This ruling arises out of the judgment given in these proceedings (the "principal judgment"), namely John Ronan and Sons & Anor v. Clean Build Ltd (in voluntary liquidation) & Ors [2011] IEHC 350. For convenience I will use the same defined terms as in the principal judgment.

3 3 1.2 In the principal judgment section 12 deals with the position of Ronan, the personal respondents and the orders to be made. It provides:

2 "12.1 For the reasons already set out I am not satisfied that it is appropriate to attribute any of the blame for the situation which now pertains on the Site to Ronan. However, Ronan is now both the owner and the occupier of the Site since the Clean Build lease came to an end. Ronan must, therefore, be taken to be the holder of any waste on the site. In that sense, and in that sense only, it seems to me that Ronan has a responsibility to ensure that the remediation measures which I have identified as being required are carried out. That leads to the question of the appropriate form of order that should be made.

3 12.2 What s. 58(1) permits the court to make is an order requiring a person to, amongst other things, remedy any effects of unlawful activity in a specified manner. In those circumstances it seems to me that the appropriate form of order should be one which directs Ronan, Mr. Mullin, Mr. Farrell, Mr. Redmond and Mr. O'Rua to procure that the work specified in the revised MEL report subject to the timescale referred to earlier in this judgment are to be carried out. As and between those parties while Ronan, as the land owner, has a responsibility for ensuring that the works are done, Ronan is entitled to an indemnity from the other parties. That indemnity should be a joint and several indemnity from Mr. Mullin, Mr. Farrell and Mr. Redmond in...