Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> John Ronan and Sons & Ors -v- Clean Build Ltd & Ors John Ronan and Sons & Ors -v- Clean Build Ltd & Ors [2011] IEHC 498 (01 December 2011)
URL: http://www.bailii.org/ie/cases/IEHC/2011/H498.html
Cite as: [2011] IEHC 498
[New search] [Help]
|
Judgment Title: John Ronan and Sons & Ors -v- Clean Build Ltd & Ors Composition of Court: Judgment by: Clarke J. Status of Judgment: Approved |
Neutral Citation Number: [2011] IEHC 498 THE HIGH COURT 2008 93 MCA 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 THE HIGH COURT 2009 88 MCA 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 BETWEEN: SOUTH DUBLIN COUNTY COUNCIL APPLICANT 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 RESPONDENTS THE HIGH COURT 2010 4806 S BETWEEN: SOUTH DUBLIN COUNTY COUNCIL APPLICANT AND
LIAM O’RUA, GARY ROE AND JOHN RONAN AND SONS RESPONDENTS JUDGMENT of Mr. Justice Clarke delivered the 1st December, 2011 1. Introduction 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:
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 respect of 10%, a joint and several indemnity from Mr. Mullin and Mr. Redmond for 85% and an indemnity from Mr. O’Rua for 5%.” 2.1 The first point of note is that, in accordance with the polluter pays principle and as I found in the principal judgment, the primary responsibility for the remediation of the Site rests with Mr. Mullin, Mr. Farrell, Mr. Redmond and Mr. O’Rua (the “individuals found responsible”). That responsibility has been apportioned in the respective proportions set out in the paragraph from the principal judgment cited earlier. Save to the extent outlined above, the liability among the responsible parties is not joint and several. Each group of named parties is responsible for a discrete element of the problem, in some cases jointly with others as outlined. There is no justification for making any respondent liable for damage for which they were not responsible. 2.2 The second point is that, despite the absence of any adverse findings against Ronan, that company nevertheless retains a residual responsibility, as the landowner and the present holder of the relevant waste, for the remediation of the Site. 2.3 Third, in light of the provisions of the waste management legislation and given the nature of the proposals contained in the revised MEL report, the remediation of the Site must be carried out by duly licensed and appropriately qualified waste professionals who will be subject to the scrutiny of South Dublin in accordance with the legislation. As such, there is no suggestion of the court directing any of the parties to appear at the Site to carry out the proscribed works in person. Instead their respective responsibilities are to pay for those works to be carried out. 2.4 Thus, the form of order should make clear that, in the first instance, Mr. Mullin, Mr. Farrell, Mr. Redmond and Mr. O’Rua are required to enter into a contract with a waste management contractor for the remediation of the Site in accordance with the revised MEL report within the deadline set, i.e. before the end of 2012. That contract must be executed within two months of today’s date. 2.5 I direct that each party who has or may have a responsibility to contribute to the remediation of the Site is to procure terms of engagement from an appropriate firm or firms by the 20th December, 2011, for the contract(s). Such terms are to include a schedule for the payment of the costs of the works. The payments are to be made in the manner set out in the section of the principal judgment cited above. 2.6 In the event that any of those parties pleads an inability to enter into such a contract on financial grounds, then I will direct that an affidavit setting out that fact must be filed with this court in early course. Any such affidavit must set out in detail the means of the party seeking to argue that they are not in a financial position to engage to pay for their share of the necessary works and must be filed with this court by the 15th of December, 2011. I would note at this stage that, notwithstanding any demonstrable inability to engage a contractor to complete the works, I will nevertheless expect the parties to contribute monies towards their respective proportions of the remediation costs to the extent that they are in a position so to do. Furthermore, the assessment of a party’s means should be prospective and take into account their ability over the entire period in which payment for the remediation is to occur. For the avoidance of doubt the responsibilities described in the principal judgment as joint and several require any party so liable to be prepared to pay for the full amount of the percentage attributed under the heading. Any party who has, in fact, to take up more than a proportionate share of any such percentage will be entitled to an order over against any party not taking up such a proportionate share. 2.7 Where any or all of the parties named fail to secure the requisite contract, I will direct that Ronan acts as a guarantor to indemnify the works with an order over against the named respondents for any shortfall. 2.8 Although estimates have been provided of the likely cost of the remediation works, no final figure has been put before the court. Were it possible to quantify that figure then the court would have open to it the possibility of apportioning the exact financial responsibility of the works as and between the named respondents and thereafter to award specific monetary judgments in favour of Ronan or any other party with execution to be stayed unless or until the shortfall if any has been quantified. 3. The Effect of Bankruptcy 4. Monies Expended 4.2 I am satisfied that s. 56(2) of the 1996 Act gives South Dublin an entitlement to seek the recovery of the monies it expended in the remediation of the Site. As previously noted, proceedings in this regard were separately issued against Mr. Roe, Mr. O’Rua and Ronan. Given the absence of any finding of fault against Mr. Roe South Dublin may not recover from him. South Dublin may, however, recover 5% of the €126,730.00 claimed from Mr. O’Rua and I will direct that judgment be entered against him for the sum of €6,336.50 in those proceedings, which I will direct be linked to these proceedings for the sake of convenience. Ronan has sought to vigorously oppose South Dublin’s proceedings and I am satisfied that there is a fair issue to be tried in particular in light of my findings of fault in the principal judgment and the fact that, at the time the relevant monies were expended, Ronan was not entitled to possession of the lands. I will, therefore, direct that should South Dublin wish to progress their proceedings against Ronan, then that matter must proceed to a full plenary hearing. 4.3 I am not, however, satisfied that the 1996 Act gives the court the jurisdiction to require defendants to repay money expended by private persons or bodies. The provisions of ss. 57 and 58 of the 1996 Act, on which Ronan seeks to place reliance, refer to costs in a manner which seems to me to simply mean that the reference is only to the costs of the relevant court proceedings. In that context those provisions need to be seen in contrast to the clear terms of s. 56 which enables public authorities to enter onto lands, incur relevant expense, and recover any monies expended as a simple contract debt. If the legislation had intended that monies expended by private entities in similar circumstances were to be recoverable under the statute, then it seems to me that it would have said so in terms similar to those set out in s. 56. It must, of course, be recalled that orders under s. 57 and s. 58, while ordinarily availed of by public authorities, are available to any interested party be they a neighbouring land owner, an environmental non-governmental organisation or a concerned citizen. However, the focus of those sections is the prevention of continuing unlawful waste activity and the remediation of the effects of previous waste activity. Those sections are not concerned with the reimbursement of the costs of remediation other than through a court order. It would, of course, be highly unlikely that anyone who did not have a direct ownership interest in the land would be entitled to go onto the land and incur expense in the first place. Therefore, it is not surprising that the 1996 Act does not authorise uninterested parties (other than public authorities) to enter onto the land and incur expense. So far as landowners themselves are concerned then it is, of course, the case that such parties may well have other means (outside the scope of the statutory remedies contained in the 1996 Act) for dealing with the cost of remediating the effects of unlawful waste carried out on their lands by others. 4.4 In this regard I cannot, therefore, accede to the application made by Ronan for the recovery of the €144,301.00 which they expended in remediating the Site. I would note in passing that Ronan, as a private company, do have other private law avenues through which to pursue the recovery of those monies, for example under the guarantee contained in the lease or by way of an action in nuisance. 5. Conclusion 5.2 I will therefore direct that an order be drawn in the terms described above, leaving over the matter of costs to a subsequent hearing.
|