The High Court has ordered Irish Shell Limited to take immediate steps to remediate a Meath County Council site in Trim, after finding that the company had not shown the agreed cleanup levels were unachievable.
The judgment, delivered by Mr Justice Vivian Lavan on 6 December 2006, directs specific performance of a remediation agreement dated 28 February 2003 and a mandatory injunction requiring Irish Shell to remediate the site to the agreed levels. The order concerns the civic offices site at Watergate Street, Trim. The judgment does not specify a deadline for completing the work.
The council’s case arose from hydrocarbon contamination that originated at an adjoining Shell petrol station and spread onto the council-owned site. Shell admitted responsibility for the contamination and for direct remediation costs. The parties disputed the cleanup standard and whether Shell was responsible for extra building costs and other consequential losses.
The court had earlier ruled, on 30 June 2006, that October and November 2001 correspondence formed an agreement under which Shell accepted responsibility for the pollution, agreed to remediate to standards agreed between the parties, and agreed to pay costs arising from the damage, including extra costs payable to the building contractor. The judgment records that the council then sought specific performance and a mandatory injunction. The final order addressed the 2003 remediation agreement and the agreed levels; it did not set out a separate award of damages or quantify consequential costs.
Shell argued that the levels set out in the 2003 agreement could not be achieved, relying on expert evidence that reaching them might take decades. It also argued that a court should not compel specific performance where the work was impossible, and that damages would be an adequate remedy. The council relied on evidence from an independent hydrogeology expert who considered the levels achievable within nine to 18 months, and on an Environmental Protection Agency view that there was no apparent reason to depart from the agreed targets.
Justice Lavan found, on the balance of probabilities, that Shell had not established that remediation to the agreed levels was unachievable. He also found that the council had cooperated and relied on the defendants’ advice and expertise, and that the remediation agreement followed diligent negotiations. The judgment records that the second and third named defendants were no longer parties by agreement with Shell. The order was made against the first named defendant, Irish Shell Limited.