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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Cork County Council -v- O'Driscoll [2014] IEHC 243 (29 April 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H243.html
Cite as: [2014] IEHC 243
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Judgment Title: Cork County Council -v- O'Driscoll Neutral Citation: [2014] IEHC 243 High Court Record Number: 2012 3728 S Date of Delivery: 29/04/2014 Court: High Court Composition of Court: Judgment by: Birmingham J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 243 THE HIGH COURT [2012 3728 S] BETWEEN CORK COUNTY COUNCIL PLAINTIFF AND
VALENTINE O’DRISCOLL DEFENDANT JUDGMENT of Mr. Justice Birmingham delivered on the 29th day of April 2014 1. In this case the plaintiff Cork County Council is seeking summary judgment in the amount of €1,934,208. That figure is made up of a principal sum of €1,208,880 alleged to be due on unpaid landfill levies plus interest thereon of €725,328 to the 1st August, 2012, and further interest. The defendant, Mr. Valentine O’Driscoll, for his part resists the application for summary judgment and urges that he should be given liberty to defend and for that purpose that the matter should be remitted to plenary hearing. 2. The legal principles applicable to proceedings in which summary judgment is sought are at this stage well known. Recent years have seen a surge in such applications. Indeed, as is pointed out in the preface to Barrett on Summary Judgment in Ireland - Principles and Defences, this has been a function of the economic climate that has prevailed in recent years. The result is that I do not detect any major disagreement between the parties as to what those principles are, but rather the area of disagreement centres on how those principles are to be applied. 3. In the leading case of Aer Rianta v. Ryanair [2001] 4 IR 607, Hardiman J. commented as follows:-
5. In Zurich v. McConnon [2011] IEHC 75, I commented that while the jurisdiction to grant summary judgment and refuse leave to defend undoubtedly existed, that it was a jurisdiction to be exercised very sparingly indeed. I remain firmly of that view. Accordingly, I will seek to apply the test suggested by Hardiman J. and so only if I am satisfied that it is clear that Mr. O’Driscoll has no defence, not even one that could be described as arguable, would there be summary judgment. However, if that turns out to be the situation, then obviously I will enter judgment. The Factual Background 7. The defendant decided to raise the levels of his lands in order to eliminate or minimise the risk of further flooding. In order to raise land levels, the defendant decided to embark on a program of landfill. The intention was that the lands would be filled, built up and then graded from north to south towards the N25. The intention was that when the landfill exercise was completed that the lands in question would be returned to agricultural use, dairy farming or beef cattle rearing. Given the firm and settled intention to return the lands to agricultural use, the nature of the infill became very significant, as it was necessary to avoid contamination of the lands. 8. The defendant sought a waste permit from Cork County Council. On the 20th January, 2004, a waste permit was issued which was to expire on the 19th January, 2006. The waste permit had the potential to permit the defendant to accept inert materials onto Ballinderrig Farm. I use the phrase “had the potential to permit” because the situation is that while Mr. O’Driscoll undoubtedly commenced landfill activity there is a major issue between the parties as to whether Mr. O’Driscoll’s activities were authorised or remained unauthorised. This is one of the central issues in the case. That is because, in broad terms the nature of the material that was brought on to Ballinderrig which was overwhelmingly inert material was such that if the landfill was authorised, it was exempt from landfill levies, whereas if the landfill was an unauthorised activity a levy was payable at the rate of €15 per tonne on deposited material. In passing I would observe that the rate per tonne was raised at one stage from €15 to €20, but in a situation where the plaintiff cannot say whether deposits occurred before or after the date changed, the initial rate has been applied throughout by the plaintiff. While there is an issue between the parties as to how any levy payable should be calculated or as to what methods of calculation are permissible suffice at this stage to note that based on the premise that the infill activity was not authorised, the plaintiff has calculated that the amount payable by way of levy was €1,208,880. Whereas calculations carried out on behalf of the defendant which took as its starting position that Ballinderrig Farm was not an unauthorised landfill, calculated that the total levy due was €6,044.40. The significance of whether what occurred was authorised or unauthorised will be immediately apparent. The Statutory Framework. 10. Article 5 makes provision for certain exemptions from the levy. It provides that Article 3 shall not apply in respect of the disposal by means of an authorised landfill activity of certain listed categories of waste, including non-hazardous waste from construction and demolition activity and excavation soil comprising clay, sand, gravel or stone used for landfill site engineering. 11. Article 6 deals with the determination of levy liability. Article 6(3) provides that in the case of an unauthorised landfill activity, the weight of waste disposed of shall be determined by the relevant local authority:-
(b) In any other case by means of such methodology as is from time to time notified in writing to the relevant local authority by the Agency.
13. Article 9 makes provision for payments of a levy in respect of an unauthorised landfill activity. Article 9(1) and 9(2) provide as follows:-
(2) A person who receives a notice under sub-article (1) shall within a period of four weeks of the date of the said notice remit to the said local authority the amount of levy determined to be payable, in such form, or by such lodgement to such financial account, as shall be specified by that authority. 15. Provision is made for Local Authorities on a monthly basis to pay into an Environmental Fund the amount collected by way of levies. Under the 2002 Regulations the Local Authority was permitted to deduct and retain up to 20% of the amount received for the purposes of defraying expenses. The amount permitted to be retained was increased to 80% under the 2006 Regulations which was to be used for waste enforcement purposes. 16. Article 14 provides for interest on unpaid levies from the date it became due and payable until payment. Article 15 provides that in the event of a default in paying a levy the amount due as well as interest shall be recoverable from the person concerned as a simple contract debt. 17. The schedule to the Regulation is headed “Calculation of Weight of Waste in the Absence of a Weighbridge”. It is then stated that any of three methods listed may be used in the absence of a weighbridge, these involve:-
2. A volume to weight conversion and 3. Weighing of waste prior to receipt at a landfill facility.
“unauthorised landfill facility” means a waste disposal site on which the disposal of waste has or is taking place without a waste licence.
(b) in the case of a landfill activity at a facility which is deemed not to contravene the provisions of Part V of the Act by virtue of compliance with the requirements of section 39(3) of the Act, by the applicant for the relevant licence; (c) in the case of a landfill activity other than one to which paragraphs (a) and (b) relate, by (i) the person who carried or carries on the activity concerned, or (ii) where that person is not identified, or cannot for whatever reason discharge the levy liability, by the owner of the facility concerned.” 20. Of note is that Article 20 of the 2008 Regulations revoked the 2002 and 2006 Regulations. There was no saver and transitional provisions. The 2008 regulations were themselves revoked by the Waste Management (Landfill Levy) Regulations 2011. However, of some interest is that on this occasion, unlike in 2008, there was a saver provision. Article 19 of the 2011 Regulations is in theses terms:-
(2) Notwithstanding the Revocation of the Regulations of 2008, those Regulations shall continue to apply to any levy chargeable, leviable and payable under the Regulations of 2008 immediately before the coming into operation of these Regulations.” 21. A waste permit (CK(S)79/03) was issued by Cork County Council under the Waste Management Act 1996, and the Waste Management Regulations 1998. The permit which was issued on the 20th day of January, 2004, expired on the 19th January, 2006. 22. In the context of the present proceedings and the arguments that have been advanced by the parties, attention is drawn to the following provisions of the permit:-
1.6 Where Cork County Council considers that non-compliance with the conditions of this permit has occurred, it may serve Notice on the permit holder stating; (a) the nature of the non compliance; (b) the remediation procedure(s) required; (c) the timeframe to undertake the remediation works.” When the notice has been complied with, the permit holder shall provide written evidence to Cork County Council confirming that the requirements of the notice have been carried out. No waste shall be accepted at the facility until written confirmation is received from Cork County Council that the notice is withdrawn.
10.1 The granting of this permit, and any condition imposed by it, does not exempt the holder of the permit from complying with the statutory obligations of any relevant legislation, including: 1. Water pollution, 2. Health and Safety, 3. Air pollution, 4. Waste and litter, 5. Planning legislation. 10.2 Note that these lands are part of the Great Island candidate Special Area of Conversation (cSAC) and as such works may not commence at the site until such time as there is complete agreement with the National Parks and Wildlife Service as to the size, scale and nature of the operation. A copy of this permit has been furnished to the National Parks and Wildlife Service for comment. Therefore, there may be additional conditions added by Cork County Council under instruction from the National Parks and Wildlife Service. Service of a Notice Calculation 25. The plaintiff points to the fact that the operation did not have planning permission, but rather on two occasions permission was refused. Emphasis is laid on the fact that in the case of one application 05.3375, the refusal was specifically related to the cSPA designation and was based on the fact that the proposed development would damage the habitat for birds. 26. The plaintiff also points out that no specific or formal agreement was reached and recorded with the National Parks and Wildlife Service. An Arguable Defence 28. The defences identified are as follows:
(ii) That the proceedings are statute barred. Reference is made here to a District Court prosecution where the offence in question was stated to have occurred on the 18th May, 2006, more than six years before the summary summons issued on the 1st October, 2012. (iii) The letter of demand of the 2nd October, 2012, came after the summary summons was issued and contained a reference to a notice of the 30th July, 2008, when there was no such notice, the only notice being the one dated the 30th June, 2008. It is also said that the notice of June 2008, was itself defective in that it did not contain a recital that the landfill was unauthorised or any reference to this fact. (iv) There is no extant legal basis for the claim. This is a reference to the fact that the 2002 and 2006 Regulations were revoked by the 2008 Regulations and that there was no saver provision. The notice of the 30th June, 2008, had not crystallised or expired when the earlier regulations were revoked and no sum had become due when the earlier regulations were revoked. (v) The plaintiff’s claim was instituted as a tactic to block or frustrate proceedings in relation to flooding commenced by the defendant. 30. On behalf of the defendant it is argued that there was a permit in existence which permitted the defendant to carry on the waste activity there listed which involved the receipt of waste other than hazardous waste. The waste permit was granted for a period not exceeding two years from the date of issue and waste activities were to take place only in accordance with the conditions of the permit. A notice was served on the 12th November, 2005, alleging a breach of clause 10.1. 31. The plaintiff for its part has contended that compliance with clause 10.1 and 10.2 were condition precedents and that unless and until a planning permission was obtained and an agreement was reached with the National Parks and Wildlife Service that no activity could take place. Absent planning permission any activity that occurred was not authorised and indeed was unauthorised. 32. I am bound to say that at this stage, I find the arguments advanced by the plaintiff to be particularly cogent. However, while that is so, the actual language of s. 10.1 does not in terms require the permit holder to apply for, obtain and comply with the planning permission. Indeed, in one reading clause 10.1 is superfluous as it merely states that the permit does not exempt the holder from compliance with various statutory provisions, including planning legislation. If clause 10.1 had never been included there would still have been an obligation to comply with planning legislation, to say nothing of water pollution, health and safety, air pollution, waste and litter regulations. 33. The argument of the plaintiff grounded on clause 10.2 has particular force, in that on this occasion there is a specific statement that work may not commence until a particular state of affairs is achieved. However, while that is so, and is a point of major substance, it remains the case that the permit was furnished to the National Parks and Wildlife Service and that it did not communicate any particular requirement to the defendant nor were any additional conditions to be included suggested to Cork County Council by the NPWS. 34. The plaintiff’s position is further strengthened by the terms of the covering letter which forwarded the permit. That letter included the following comments:-
As these lands are part of the Great Island candidate Special Area of Conservation (cSAC), you require written consent from the National Parks and Wildlife Service before works commence. Planning Permission will be required before works are commenced on site.” 36. So far as the second point which I am minded to consider in some detail is concerned - the affect of the revocation of the 2002 and 2006 regulations without a specific saver provision - on behalf of the defendant it is said that the period provided for payment had not expired at the time that the plaintiff had sought to initiate proceedings grounded on provisions which had been repealed. Reference was made to cases such as Start Mortgages v. Gunn [2011] IEHC 275, and McAteer and Bank of Ireland Mortgage Bank v. Sheehan [2013] IEHC 417. 37. In response, the plaintiff argues that the notice served requires payment and that the obligation to pay arises immediately on service of the notice, even though a period during which payment may be made is allowed. The plaintiff says that using the language of Start Mortgages v. Gunn, the right at issue had become vested by the date of repeal, and so can be enforced notwithstanding the repeal. It is said that clear support for the plaintiff’s position is provided by s. 27 of the Interpretation Act 2005, which so far as material is in these terms:-
. . . (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment, (c) affect any . . . obligation or liability acquired, accrued or incurred under the enactment (2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a . . . obligation or liability acquired, accrued or incurred under . . .may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed.” 39. The two suggested defences to which I have referred both involve clearly defined legal issues, which have been the subject of focused legal argument and in relation to which I have had the benefit of oral and written legal submissions. That raises the question whether I ought to decide the legal issues here and now. In the case of Danske Bank v. Durkan New Homes [2009] IEHC 278, in the High Court, Charleton J. had commented as follows:-
43. The defendant has contended that the plaintiff’s claim has been prompted by the proceedings initiated by him against it. That is something that is firmly rejected by the plaintiff. However, whatever the rights and wrongs of that dispute and again it is proper at this stage to take the defendant’s case as its high watermark, it certainly seems that the proceedings in their present state do not provide anything like the full picture. There is the potential for a fuller and more complex picture to emerge at a plenary hearing. 44. All in all, it seems to me that the background to the proceedings, the fact that the defendant claims to have been adversely affected by the actions and inactions of the plaintiff over many years, combined with the fact that the defendant has identified legal arguments which, though they cannot be said that they are likely to succeed, I cannot dismiss as bound to fail, means that it is appropriate that the matter should go to plenary hearing. 45. I have referred to the delays that have occurred on both sides and I would be anxious that further delay be avoided and I will be glad to hear any suggestions that counsel may have in that regard, whether in terms of case management or otherwise.
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