In two sets of proceedings, Environmental Protection Agency v Greenstar Holdings Ltd & ors; CLM Properties Limited v Greenstar Holdings Ltd & ors  IEHC 178, the High Court decided the following preliminary issue:
"Whether all monies collected pursuant to s. 53A(4)(c) of the Waste Management Act 1996, were required by law to be used solely for the purpose of paying for the closure, restoration, remediation and aftercare of the landfill to which they relate for a period of thirty years and were not available to the Licensee to invest, spend, charge or otherwise use in any form or manner.”
Greenstar Holdings Ltd (i.e. the holding company) held the waste licences in respect of three landfills. KTK Landfill Ltd held the fourth landfill licence. Each of the landfills was operated by another Greenstar company, on behalf of the licence holder. The charges for waste disposal in the landfills were collected by Greenstar Limited, as agent either of the landfill operating companies (or Greenstar Holdings Ltd), and KTK.
As is usual, each of the licences issued by the EPA in respect of the landfills imposed, inter alia, a condition that the licensee:
- make financial provision to cover any liabilities associated with the operation of the facilities the subject-matter of the Licenses (including the closure and aftercare); and
- ensure that the costs of, inter alia, closure and aftercare for a period of at least 30 years shall be covered by the price to be charged for the disposal of waste at the facility and that the licence holder would comply with s.53A of the Waste Management Act 1996.
The charges collected by Greenstar Ltd, (including those pursuant to s.53A(4)(c) Waste Management Act 1996), were not transferred to Greenstar Holdings Ltd but were retained in a bank account of Greenstar Ltd and used for the benefit of Greenstar Ltd and other members of the Greenstar Group.
In 2006, a syndicate of banks (for which the Bank of Ireland acted as agent), made facilities available to the Greenstar Group. The facilities were secured by way of charges on Greenstar Group assets and guarantees from Greenstar companies. By 30 June 2012, "events of default" had occurred which entitled the Bank of Ireland to make demand for repayment of the sums then due and owing pursuant to the facilities.
CLM Properties Ltd had carried out certain works at the landfills of Greenstar, which formed part of the restoration, remediation and aftercare of the landfills, and was owed approximately €3 million in respect of such works.
Each of the plaintiffs (i.e. both the Environmental Protection Agency and CLM Properties Ltd) claimed that the charges collected by Greenstar Ltd representing the amount determined in accordance with s.53A(4)(c) Waste Management Act 1996, were required by law to be used solely for the purposes of paying for the closure, restoration, remediation and aftercare of the landfill for a period of 30 years, and were not available to the licensee for any other purpose, including the giving of security to the Bank.
For the purpose of considering the application of the Waste Management Act 1996 to the facts, the Court ignored the fact that there were different companies within the Greenstar group which held the licence for the landfill, which collected the waste, and which was paid the charges by the waste producers. Instead it assumed the same corporate entity was the licensee, the operator of the landfill site, and the recipient of the charges paid.
The High Court ruled that s.53A of the Waste Management Act, 1996, when interpreted in conjunction with Article 10 of the Landfill Directive 99/81/EC and Article 14 of the Waste Framework Directive 2008/98/EC (to which it gives effect), does not restrict a landfill operator, (such as Greenstar), who has been paid waste disposal charges, from using some or all of the monies received for purposes other than closure, restoration, remediation and aftercare of the landfill concerned.