Minister for Environment & Local Government and Others v Irish Ispat Ltd

• Jurisdiction: Ireland
• Judge: Carroll J.
• Judgment Date: 29 July 2004
• Neutral Citation: [2004] IEHC 143
• Court: High Court
• Docket Number: Hc 278/04
• Date: 29 July 2004

[2004] IEHC 143

THE HIGH COURT

Hc 278/04

[No. 270 COS/2002]

RECORD NO. 94SP/2003

MINISTER FOR ENVIRONMENT & LOCAL GOVERNMENT & ORS v. IRISH ISPAT LTD

IN THE MATTER OF IRISH ISPAT LIMITED (IN VOLUNTARY

LIQUIDATION)

AND IN THE MATTER OF THE COMPANIES ACTS,1963 TO 2001

AND IN THE MATTER OF AN APPLICATION BY RAY JACKSON,

LIQUIDATOR, PURSUANT TO SECTION 290 OF THE COMPANIES ACT,

1963.

AND

IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT ACT,

1996

AND IN THE MATTER OF AN APPLICATION BY THE MINISTER FOR

THE ENVIRONMENT AND LOCAL GOVERNMENT AND THE MINISTER

FOR DEFENCE AND THE MINISTER FOR COMMUNICATIONS, MARINE

AND NATURAL RESOURCES

BETWEEN/

MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, MINISTER FOR DEFENCE AND MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES

APPLICANTS

AND

IRISH ISPAT LIMITED (IN VOLUNTARY LIQUIDATION) AND RAY JACKSON, LIQUIDATOR

RESPONDENTS

Citations:

COMPANIES ACT 1963 S290

WASTE MANAGEMENT ACT 1996 S58

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82

WASTE MANAGEMENT ACT 1996 S32

WASTE MANAGEMENT ACT 1996 S57

WASTE MANAGEMENT ACT 1996 S58

COMPANIES ACT 1963 S290(9)

COMPANIES ACT 1963 S280

COMPANIES ACT 1963 S290(1)

COMPANIES ACT 1963 S284

BANKRUPTCY ACT 1988 S3

WASTE MANAGEMENT ACT 1996 S58(1)(A)

TEMPANY V ROYAL LIVER TRUSTEES 1984 ILRM 273

COMPANIES ACT 1963 S267(1)

BANKRUPTCY ACT 1988 S290

CELTIC EXTRACTION LTD, RE 2001 CH 475

ENVIRONMENTAL AGENCY ACT 1990

INSOLVENCY ACT 1986 S178 (UK)

COMPANIES ACT 1990 S290(6)

ENVIRONMENTAL PROTECTION ACT 1990 S40(1) (UK)

ENVIRONMENTAL PROTECTION ACT 1990 S90(2) (UK)

ENVIRONMENTAL PROTECTION AGENCY ACT 1990 S91(2)

ENVIRONMENTAL PROTECTION ACT 1990 S91(1)

PHEASANTRY, STATE V DONNELLY 1982 ILRM 512

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S90

COMPANIES ACT 1990 S260

COMPANIES ACT 1990 S281

COMPANIES ACT 1990 S5(8)

DIR 96/61/EC ART 3

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(3)

RANKS (IRELAND) LTD, RE 1988 ILRM 751 1989 IR 1 1988/3/618

WASTE MANAGEMENT ACT 1996 S5

WICKLOW CO COUNCIL V FENTON 2003 ILRM 279

NOYEK, RE 1989 ILRM 155

WASTE MANAGEMENT ACT 1996 S58(1)(A)(II)

WASTE MANAGEMENT ACT 1996 S58(4)

WASTE MANAGEMENT ACT 1996 S58(4)(A)

WASTE MANAGEMENT ACT 1996 S58(4)(B)

WASTE MANAGEMENT ACT 1996 S58(7)

WASTE MANAGEMENT ACT 1996 S58(1)

WASTE MANAGEMENT ACT 1996 S52

COMPANIES ACT 1963 S254

PALMER COMPANY LAW PAR 151.2.3

BURNS V HEARNE 1989 ILRM 155

COMPANIES ACT 1963 S283

COMPANIES ACT 1963 S275

DIR 96/61/EC RECITAL 1

DIR 75/442/EC

IRISH ATTESTED SALES LTD, RE 1962 IR 70

COMPANIES CONSOLIDATION ACT 1908 S207

HEMPENSTALL V MIN ENVIRONMENT 1994 2 IR 20

MAHER V MIN AGRICULTURE 2001 2 IR 139

Abstract:

Company law - Liquidation - Disclaimer of lease or licence - Whether court should allow disclaimer in general and in particular because of s. 58 of Waste Management Act 1996 application - Companies Act 1963, s. 290 - Bankruptcy Act 1988

Planning and Environment law - Waste management - Whether liquidator could be obliged to spend assets available to creditors to carry out remedial works - Waste Management Act 1996

Facts: Two interrelated cases were heard consecutively. The first concerned an application by the liquidator of Irish Ispat Ltd. for an order pursuant to s. 290 of the Companies Act 1963 for leave to disclaim a lease and a licence and the second application concerned an application by the Minister seeking orders pursuant to s. 58 of the Waste Management Act 1996 in relation to the disposal of waste on the lands in the said lease.

Held by Carroll J. in allowing disclaimer of the licence and refusing the State’s application under s. 58 that the Court would not exercise the discretion under s. 58 to order the liquidator to expend money which was available for distribution among the creditors in mitigating or remedying pollution. It was an appropriate case in which to allow disclaimer of the licence.

Reporter: R.W.

Carroll J.

1 This case concerns two interrelated cases which were heard consecutively. The first concerns an application dated 27^thJune, 2002 by Ray Jackson, the liquidator of Irish ISPAT Ltd. (in voluntary liquidation) (the Company) for an order pursuant to s. 290 of the Companies Act,1963for leave to disclaim:

2 1. An indenture of lease dated 22^nd May, 1996 between the Minister for Finance of the first part, the Minister for the Marine, of the second part and the Company of the third part, of part of Haulbowline Island, Cobh, Co. Cork and part of the foreshore and bed of the sea adjacent to Haulbowline Island as described in the Schedule and delineated on the map annexed to the lease.

3 2. An integrated pollution control licence, register 498, granted to the company on 2^nd June, 2001 by the Environmental Protection Agency ( EPA). The notice parties are the Minister for Finance, the Minister for Defence, the Minister for Communications, Marine and Natural Resources and the EPA.

4 The three Ministers were jointly represented and the EPA was separately represented.

5 When the application came on for hearing the Liquidator had operated a break clause in the lease and given three months” notice to the lessor to terminate under clause 36, effective 22^nd May, 2003. The surrender of the lease was completed and the State had resumed possession of the premises leaving only the application to disclaim the pollution control licence to be dealt with.

6 The second application concerns a special summons issued on 27^th February, 2003, by the Minister for the Environment and Local Government and the Minister for Defence and the Minister for Communications, Marine and Natural Resources against Irish ISPAT Limited (in voluntary liquidation) ("the Company") and Ray Jackson, ("the Liquidator") as respondents seeking orders pursuant to s. 58 of the Waste Management Act,1996; firstly to discontinue the holding, recovery or disposal of waste on the lands comprised in the said lease within a specified time and to carry out certain works specified in the summons together with an order specifying the manner and time within which the works are to be carried out.

7 Secondly, to mitigate or remedy any effects of the said holding recovery or disposal of waste in manner and timeframes fixed by the court.

8 Thirdly, to put in place an effective ongoing monitoring examination and inspection system following mitigation or remediation to prevent future occurrence of environmental pollution.

Section 209 Companies Act 1963 Application

9 The Company was formerly known as Irish Steel Limited. It owned and operated a steel manufacturing plant at Haulbowline, Cobh, Co. Cork, having acquired the business which was carried on at the plant since 1937 by another company, also called Irish Steel Limited. On 30^th May, 1996 following a sale of the shares in the Company by the Minister for Enterprise and Employment to ISPAT Mexicana SA de CV, the name of the Company was changed to Irish ISPAT Limited. The Company occupied the property demised in part I of the Schedule to the lease under a demise dated 22^nd May, 1996 from the Minister for Finance and the premises described in part II of the schedule under a demise from the Minister for Marine. Under this lease the Company surrendered to both lessors certain prior leases and foreshore lease in consideration of which (inter alia) the property described in the schedule was demised to the company.

10 Each demise was for a term of thirty five years from 22^ndMay, 1996. Under the lease the rent was reviewed every five years. The rent in respect of the property demised by the Minister for Finance was increased from £16,842.00 to £25,263.00 per

"Condition 2

Management of the activity

11 The Company is obliged to establish and maintain an Environmental Management System ("EMS") fulfilling the requirements of the Licence. The EMS should assess all operations and review all practicable options for the use of cleaner technology, cleaner production and the reduction and minimisation of waste. The minimum elements required to be included in the EMS are set out in this Condition and include such matters as a Schedule of Environmental Objectives and Targets, Environmental Management Programme, a Pollution Emission Register, the establishment of a Documentation System, Corrective Action, Awareness and Training, appointment of a person in charge and the establishment of a program to ensure that members of the public can obtain information concerning the environmental performance of the Company at all reasonable times.

Condition 3

12 This stipulates the parameters for defining such matters as Emission Limit Values for emissions to the atmosphere and to waters and the manner by which monitoring will be evaluated.

Condition 4

Notification

13 This condition stipulates the categories of events which must be notified to the EPA, including such matters as release of environmental significance to atmosphere from any potential emission point, emissions not complying with the requirements of the Licence, malfunctions or breakdown of control equipment or monitoring equipment, incidents with the potential for environmental contamination of surface water or ground water, the maintenance of a record of incidents etc.

Condition 5

Emissions to Atmosphere

14 This condition contains detailed restrictions on the levels of emission to the atmosphere and prohibit any other emission to the atmosphere of environmental significance. It also requires the establishment and maintenance of a test program for such emissions.

Condition 6

Emissions to Water

15 This condition stipulates limits on specified emissions to water and requires the maintenance of a program for the control and maintenance of abatement equipment.

Condition 7

Waste Management

16 The Licence requires that disposal or recovery of waste should take place only as specified in the detailed schedules to the Licence. It requires that the disposal of...