The High Court has ruled that landfill operators were not required by law to reserve the part of their waste charges calculated for future closure, restoration, remediation and aftercare solely for those purposes.
Ms Justice Finlay Geoghegan gave the ruling on 8 April 2014 on a preliminary issue in two sets of proceedings brought by the Environmental Protection Agency and CLM Properties Limited against Greenstar companies, the Bank of Ireland and David Carson. The issue concerned the interpretation of section 53A of the Waste Management Act 1996.
The parties agreed facts for the preliminary issue and called no evidence. Those facts included that Greenstar companies collected landfill charges, known as gate fees, and that the money was retained in a Greenstar Limited bank account and used for the benefit of that company and other group members. The Bank had transferred about €12 million from Greenstar group accounts in August 2012 against debts owed to it. CLM said it was owed about €3 million for landfill works it contended formed part of restoration, remediation and aftercare.
The plaintiffs argued that the share of charges representing estimated future landfill costs could not be used for other purposes. They said that if an operator became insolvent and the money was no longer available, someone other than the waste producer could end up paying for the work. The Bank argued that EU law required the charge to cover the full costs but did not dictate how the operator could use the money after receiving it. It also relied on financial security requirements for landfill licences.
The judge concluded that the EU Landfill Directive, read with the Waste Framework Directive, did not require Member States to restrict an operator’s use of charges calculated to include future closure and aftercare costs. She said the directives addressed the issue through both the price charged to waste producers and requirements for financial security to support the operator’s long-term obligations.
The court answered the preliminary issue narrowly: money collected under section 53A(1) representing the amount calculated to cover the costs identified in section 53A(4)(c) was not required by law to be used solely for those costs. The judgment did not determine the other issues in the underlying proceedings.
The EPA and CLM also sought a reference to the Court of Justice of the European Union. The judge refused, finding that an EU ruling was not necessary to decide the preliminary issue. She said section 53A could not be interpreted as imposing the proposed restriction because it did not state that restriction in clear and precise terms. The judgment does not resolve the parties’ remaining claims.