Cork County Council v Valentine O'Driscoll

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 29 April 2014
• Neutral Citation: [2014] IEHC 243
• Court: High Court
• Date: 29 April 2014

[2014] IEHC 243

THE HIGH COURT

[3728] $/2012

Cork Co Council v O'Driscoll

BETWEEN

CORK COUNTY COUNCIL

PLAINTIFF

AND

VALENTINE O'DRISCOLL

DEFENDANT

BARRETT SUMMARY JUDGMENT IN IRELAND: PRINCIPLES AND DEFENCES 2013

AER RIANTA CPT v RYANAIR LTD 2001 4 IR 607 2002 1 ILRM 381 2001/1/68

HARRISRANGE LTD v DUNCAN 2003 4 IR 1 2002/12/2982 2002 IEHC 14

ZURICH BANK v MCCONNON UNREP BIRMINGHAM 4.3.2011 2011/50/14278 2011 IEHC 75

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002

WASTE MANAGEMENT LANDFILL LEVY (AMDT) REGS 2006 SI 402/2006

WASTE MANAGEMENT ACT 1996 S7

WASTE MANAGEMENT ACT 1996 S18

WASTE MANAGEMENT ACT 1996 S73

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 3

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 5

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 3(2)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 6

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 6(3)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 6(4)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 6(3)(B)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 9

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 9(1)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 9(2)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 4(C)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 14

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 15

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 2

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 4(A)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2002 SI 86/2002 ART 4(B)

WASTE MANAGEMENT ACT 1996 S73(5)

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2008 SI 199/2008 ART 20

WASTE MANAGEMENT (LANDFILL LEVY) REGS 2011 SI ART 19

WASTE MANAGEMENT (PERMIT) REGS 1998 SI 165/1998

ENVIRONMENTAL PROTECTION AGENCY CODE OF PRACTICE APPENDIX 3

START MORTGAGES v GUNN UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

MCATEER & BANK OF IRELAND MORTGAGE BANK v SHEAHAN UNREP O'MALLEY 13.9.2013 2013 IEHC 417

INTERPRETATION ACT 2005 S27

DANSKE BANK (T/A NATIONAL IRISH BANK) v DURKAN NEW HOMES & ORS UNREP CHARLETON 26.6.2009 2009/11/2649 2009 IEHC 278

MCGRATH v O'DRISCOLL 2007 1 ILRM 203 2006/35/7529 2006 IEHC 195

Summary Judgment - Unpaid landfill levies - Risk of flooding - Permit - Waste Management (Landfill Levy Regulations) 2002 and Waste Management Landfill Levy (Amendment)(Regulations) 2006 - Unauthorised works - Planning Permission - Plenary Hearing

Facts: The plaintiff sought summary judgment in the amount of €1,934,208, alleged to be due on unpaid landfill levies. The defendant resisted the summary judgment application, insisting he should be given liberty to defend and that the matter should be remitted to plenary hearing. Mr. Justice Birmingham referred to Aer Rianta v. Ryanair [2001] and Zurich v. McConnon [2011]. The plaintiff had compulsorily acquired lands adjoining those lands held by the defendant and the defendant developed a landfill to eliminate or minimise the risk of further flooding. There was an issue as to whether the defendant”s activities were authorised. Mr Justice Birmingham cited the Waste Management (Landfill Levy Regulations) 2002 and Waste Management Landfill Levy (Amendment) (Regulations) 2006. Cork County Council issued a waste permit under the Waste Management Act 1996 and the Waste Management Regulations 1998 on 20 ^th of January 2004 and it expired on 19 ^th January 2006. The plaintiff asserted the defendant was in breach of the permit conditions, namely that the waste activities would take place only as specified under the permit conditions and in breach of compliance with statutory obligations in respect of water pollution and health and safety legislation. A notice of writing was issued requiring the defendant to pay a landfill levy within four weeks in the sum of €1,208,880. The plaintiff asserted the Ballinderrig work was unauthorised and relied on the Cuthbert report, which was carried out in accordance with the Environmental Protection Agency Code of Practice. Mr Justice Birmingham referred to Article 6(4) of the code, which created a presumption unless the contrary was proven; a determination made by a Local Authority was in accordance with the methodology approved applied. The plaintiff pointed out the operation did not have planning permission and that planning permission was previously refused. The plaintiff further pointed out no agreement had been made with the National Parks and Wildlife Service. The defendant put forward various defences such as Ballinderrig Farm was not an unauthorised facility, the proceedings were statute barred and there was no extant legal basis for the claim. Mr Justice Birmingham considered whether the landfill site was authorised and whether there was a legal basis for the proceedings. The defendant argued there was a permit which permitted the defendant to carry on the waste activity which involved the receipt of waste other than hazardous waste. The plaintiff submitted unless planning permission was obtained and an agreement was reached with the National Parks and Wildlife Service no activity could take place. Mr Justice Birmingham stated the permit was furnished to the National Parks and Wildlife Service and that the plaintiff”s position was strengthened by the terms of the covering letter. Mr Justice Birmingham considered the affect of the revocation of the 2002 and 2006 regulations without a specific saver provision and held the defendant would struggle to either establish the right to payment had not become vested at the time of service of the notice or to establish following service there was no obligation or liability which was unaffected by the repeal of the regulations. Mr Justice Birmingham held the matter should move to plenary hearing.

Matter referred to plenary hearing

1 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 1 ^St 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 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 3. In the leading case of Aer Rianta v. Ryaniar [2001] 4 IR 607, Hardiman J. commented as follows:-

"The fundamental questions to be posed on an application such as this remain: is it 'very clear' that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendants' affidavits fail to disclose even an arguable defence?"

4 4. As both sides pointed out in the course of written submissions, the principles applicable in this area have been very helpfully synthesised and summarised by McKechnie J, in Harrisgrange v. Duncan [2002] IEHC 14 in twelve numbered paragraphs at pp. 6 - 7 of his judgment.

5 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

6 6. The defendant is the owner of certain lands at Little island, Co. Cork, comprised in folio CK67991F Co. Cork. The lands have been referred to throughout the proceedings as Ballinderrig Farm. The lands in question are and have been for quite a number of years now prone to flooding. The defendant believes that the flooding in question is linked to the construction of the Dunkettle/Carrigtowhill N25 Parkway. In that respect it is of note that the plaintiff had, in the past, compulsorily acquired lands adjoining those lands now held by the defendant from his late father. There was a dispute in relation to the impact of the road construction works on the retained lands between the plaintiff and the defendant's father which was compromised in 2001. The defendant complains that since 2001 the lands have continued to be flooded.

7 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 fanning 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 8. The defendant sought a waste permit from Cork County Council. On the 20 ^th...