The polluter must pay - Clean-up liability for illegal dumping

Summary

  • The events leading up to these proceedings date back to October 2016 when the court ordered the Respondents, Eileen Hendy, Fred Hendy, Green Energy Recycling Ltd, Mark Farrelly, Mark Farrelly Plant Hire Ltd, Padraic McDonnell trading as McDonnell Haulage, Gerard Conroy and Andrew Fox, to discontinue illegal dumping on their sites in Enfield.
  • In his judgment, Humphreys J held the Respondents in contempt of court for a failure to remedy the same illegal dumping that was the subject of the 2016 order. The High Court fined the Respondents the total cost of the remediation works, which totalled €6.26m.
  • The Judge held that the Respondents' inability to pay the fine would not be a barrier to effective enforcement of the fine and remediation of the land.
  • The Judge instructed that the fine be made payable to the Meath County Council and, significantly, he held the fine would be charged on the Respondents' lands, in order to fund the remediation works.

Background

In September 2015, proceedings were initiated by the Meath County Council under section 57 of the Waste Management Act 1996, as amended, seeking orders requiring the Respondents to discontinue the unauthorised holding, recovery and disposal of waste on their land. Up to 100,000 tonnes of waste, including asbestos, had been illegally dumped on areas of the Respondents' land, over a three-year period. In October 2016, Noonan J made a final order that the Respondents were to discontinue the holding, recovery and disposal of waste on the site (the 2016 Order); the Respondents never complied with it.

The Council brought contempt motions in 2019 and 2020 against the Respondents for their failure to comply with the 2016 Order. On 27 July 2020, Humphreys J made a declaration that the Respondents were in contempt of court and elaborated specifically on how the 2016 Order would be enforced.

The Order

The Judge held that the most appropriate course of action was to fine the Respondents the entire cost of remediation, estimated at €6.26m in 2015, to be charged on the land and payable to the Council. The Judge held that as three-years had passed with nothing effective done by the Respondents to remediate the lands, it would be the Council who would remediate with specific recourse to the Respondents' assets to do so.

Analysis of the Order

The Judge noted that Respondents' property rights and rights to personal liberty were subordinate to their requirement to comply with court orders. He added that their right to fair procedures had not been infringed: they had multiple opportunities to put forward a defence to the 2016 Order or to comply with it, and they did neither.

The court held that it was not precluded from imposing a fine or putting in place other measures, even if the fine is greater than the means available to that person. The Judge dismissed the theory that a court cannot fine a defaulter more that their assets calling it "a polluter's charter and a defaulter's dream, because of the sheer practical difficulty of framing such an order".  

The Judge ruled that the Respondents' entire pool of assets came within the remit of the 2016 Order. The fine of €6.26m was charged on the lands, and the Council have liberty to register it over any assets of the Respondents and exercise a power of sale. The Judge clarified that a power of sale cannot be exercised over contaminated parts of the land until the waste has been removed.

The 2016 Order is future looking in nature, in that the door was left open by the court for further requests to attach any future income or assets of the Respondents. The Judge granted the Council liberty to apply in this regard. The Judge noted that "such an order ensures that whatever assets they have will be available, whereas an order artificially limited to my estimate of their present assets would not."

The Judge held that the fine was 'coercive' not punitive as it was not intended to punish them for their three year contempt but rather to ensure remediation of the lands actually happens. As the Respondents had failed to do so themselves, the Council was the appropriate party to remediate the lands.  

Conclusions

There are two particularly striking conclusions that arise from this judgment:

  1. Where it is apparent that a respondent is unable to comply with the instructions of a court order because it is beyond their financial means, the court is open to creative workarounds to ensure compliance with court orders.
  2. These creative workarounds can go as far as charging a respondent's assets in favour of the plaintiff and looking to a respondent's wider pool of assets, and future assets, for recompense.

This judgment is important, as it is a reminder of the polluter pays principle and the measures a court is willing to take to enforce it.

If you require further information or assistance on any issue covered in this memo, please contact Jason Milne, Partner, Alison Fanagan, Consultant, or any member from the Environmental & Planning team at A&L Goodbody.

Date published: 6 October 2020