Mother and son fined €6.2m over failure to clean up illegal farm dumps

Up to 100,000 tonnes of waste, including asbestos, was dumped on two unauthorised areas comprising three acres on the 253 acre farm over a three year period up to October 2014. 

 

The farm, at Ballynakill, Rathcor, Enfield, is owned by Eileen Hendy and run by her son, Fred. 

 

In a judgment published on Monday, Mr Justice Richard Humphreys said it had been three years since another High Court judge had ordered the Hendys to take steps to clean up the sites. They were found in contempt of that order last July and were not entitled to more time to comply. 

 

The most appropriate option, and the one sought by the council, was for the court to fine them the €6.26 million cost of remediation, to be charged on the lands, he said. 

 

The fact the remediation costs are probably going to be in excess of their means is “irrelevant”, he said. 

 

Property rights 

While their counsel had argued a fine would infringe their property and other rights, those rights were subordinate to the requirement to comply with court orders, which they had not done, the judge said. The fine is “coercive”, not punitive, as it was not intended to punish them for their three year long contempt but rather to ensure the remediation happens, he added. 

 

Mr Justice Humphreys said it goes without saying that the Hendys cannot be imprisoned over failure to pay the balance of the fine once their assets have been exhausted. 

 

The council had, in 2016, secured orders from the then High Court judge Seamus Noonan against the Hendys aimed at securing remediation of the landfill sites in line with recommendations of the Environmental Protection Agency. He ordered the Hendys to pay costs, not then quantified, towards that remediation. 

 

The court was told in 2016 the cost of dealing with the waste was estimated about €2 million if the sites were capped” and left in place and would be some €6 million if the waste was removed and treated at a facility. 

 

Mrs Hendy lives with her daughter in a house on the lands while Fred Hendy and his family live in another house nearby. 

 

During the 2016 hearing, Mr Hendy said he farms the lands and neither his mother nor his sister had any role in the waste activities. 

 

The council claimed diaries kept by Mr Hendy indicated he was paid about €175,000 between 2011-2012 for taking in waste at rates considerably lower than what would have had to be paid to licensed landfills. 

 

The council had also brought proceedings against a waste company and a number of hauliers but the claims against those parties were struck out after Mr Justice Noonan raised issues about the adequacy of evidence. 

 

The council last year initiated contempt proceedings against the Hendys and Mr Justice Humpreys, at a hearing last July, found both in contempt. 

 

Arising from that finding, he considered further submissions and gave judgment on those on Monday. He found the Hendys had no valid legal complaint about the council proceeding with the contempt matter. 

 

‘Fool’s errand’ 

The council’s main concern is to have the lands remediated and, despite arguments on behalf of the Hendys that they have tried alternative solutions, they have done nothing effective for a three year period and it would be “a fool’s errand” to give them a further chance to begin to do something now, he said. 

 

That meant the council itself had to remediate the lands and must have recourse to the respondents’ assets to do so, he said. 

 

Just three of the farm’s 253 acres are contaminated and that meant a large amount of the land could be made available for sale, he said. Eileen Hendy held eight-ninths of them while one ninth was held by her late husband’s estate and the lands include the homes of both respondents. 

 

An affidavit of means on behalf of the Hendys referred to land worth €665,000 but that was queried by the council and there may have to be cross-examination on it, he said. The affidavit also said there are no mortgages or charges on the lands.