Cork County Council v O'Driscoll
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 18 April 2018 |
| Neutral Citation | [2018] IEHC 203 |
| Docket Number | [2012 No. 3728 S] |
| Court | High Court |
| Date | 18 April 2018 |
[2018] IEHC 203
[2012 No. 3728 S]
THE HIGH COURT
Environment, Construction & Planning – The Waste Management Act 1996 – Art. 9 of the Waste Management (Landfill Levy) Regulations 2002, (as substituted by art 6. of the Waste Management (Landfill Levy) (Amendment) Regulations 2006 – Recovery of landfill levy – Compliance of conditions for issuance of waste disposal license
Facts: The plaintiff sought an order for the recovery of a landfill levy claimed to be due under the Waste Management Act 1996 as amended. The plaintiff contended that the levy was payable either by the person who was the holder of a waste licence or the owner of the land under art. 4(c) of the 2002 Regulations. The defendant argued that the claim was either barred by statute or ought to be struck out on grounds of delay.
Ms. Justice Baker held that the plaintiff was entitled to judgment in the amount claimed. The Court noted that the claim was not statute barred as the power to commence proceedings for the collection of a levy could only accrue when the statutory notice was served and the plaintiff duly complied with the requirement to serve the statutory notice. The Court observed that express conditions of the licence were imposed pursuant to the Waste Management Acts, 1996 to 2003, and under arts. 5 & 17 of the Waste Management (Permit) Regulations, 1998, and thus, the licence must be read in conjunction with any conditions so imposed. The Court found that in the present case, there was non-compliance of Condition 10.2 of the license, which required that the defendant should obtain consent from National Parks and Wildlife prior to the start of the waste disposal activity.
The plaintiff seeks to recover a landfill levy claimed to be due under the Waste Management Act 1996 (‘the 1996 Act’) as amended. The claim is made on foot of a notice served pursuant to Art 9 of the Waste Management (Landfill Levy) Regulations 2002, S.I. No. 86 of 2002 (as substituted by Art 6 of the Waste Management (Landfill Levy) (Amendment) Regulations 2006, S.I. No. 402 of 2006), ‘the Regulations of 2002’ and ‘the Regulations of 2006’ respectively or, where the context admits, ‘the Regulations’.
The defendant has defended the claim on a number of grounds, which may conveniently be described as grounds deriving from an interpretation of the Regulations, and that the claim is either barred by statute or ought to be struck out on the grounds of delay. The defendant contests the claim also on its merits and argues that the materials brought onto his lands were inert and were necessary to alleviate a flooding risk on the lands. The defendant did have a waste licence issued pursuant to the Regulations for the relevant period, but it is argued by the plaintiff that the licence was subject to a number of conditions precedent, none of which had been satisfied.
The claim is for €1,208,880, being the levy calculated in accordance with the provisions of the Regulations. The levy notice was issued on 30 June 2008, and demanded payment within four weeks. Whilst interest was originally claimed in the proceedings, that claim is no longer being pursued.
The levy is claimed to be payable in respect of an activity at the farm of the defendant at Ballinderrig, Courtstown, Little Island, County Cork, the lands comprised in folio CK 67991F of which the defendant is registered owner. The plaintiff is the statutory body responsible for the collection of the landfill levy within its functional area.
A summary summons was issued on 1 October 2012, and after an appearance was entered by the defendant on 13 November 2012, a motion to amend the summary summons and for final judgment was returnable before the Master of the High Court on 28 February 2013. The matter was adjourned from time to time before the Master and several affidavits were filed before the motion for judgment came on for hearing before Birmingham J. on 26 and 27 February 2014. Birmingham J. delivered a written judgment on 29 April 2014, Cork County Council v. O'Driscoll [2014] IEHC 243, and as a consequence the matter was remitted to be determined at plenary hearing.
Pleadings were then exchanged and closed in September 2014. The case was finally concluded before me on 6 December 2017.
The Regulations are made in exercise of the powers conferred by ss. 7, 18, and 73 of the 1996 Act (as amended).
Section 7 of the Act provides that the Minister may make Regulations for the purposes of the Act, and the Regulations of 2002 and 2006 were made for the purposes of s. 73 of the Act, as inserted by s. 11 of the Waste Management (Amendment) Act 2001.
Section 55 of the Act provides for the power of the relevant local authority to require measures to be taken in relation to the holding, recovery or disposal of waste:
‘(1) (a) Where it appears to a local authority, as respects its functional area, that it is necessary so to do in order to prevent or limit environmental pollution caused, or likely to be caused, by the holding, recovery or disposal of waste, the local authority may serve a notice under this section on a person who is or was holding, recovering or disposing of the waste, as the case may be.
(b) Paragraph (a) shall not apply in respect of the recovery or disposal of waste carried on in accordance with a waste licence, or a licence or revised licence granted under Part IV of the Act of 1992.
(2) A notice under this section may require—
(a) the taking of specified measures which the local authority considers necessary in order to prevent or limit the environmental pollution concerned or prevent a recurrence thereof,
(b) the cesser of the holding, recovery or disposal concerned,
(c) the mitigation or remedying of any effects of any activity aforesaid in a specified manner,
within a specified period (not being less than 14 days commencing on the date of the service of the notice).
(3) A notice under this section—
(a) may be served whether or not there has been a prosecution for an offence under this Act in relation to the activity concerned;
(b) shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.
(4) – (5) […].
(6) If a person on whom a notice under this section has been served does not, within the period specified in the notice, comply with the terms thereof, the local authority concerned may take such steps as it considers reasonable and necessary to secure compliance with the notice, and may recover any expense thereby incurred from the said person as a simple contract debt in any court of competent jurisdiction.
(7) Without prejudice to the generality of subsection (2), a notice under this section may require—
(a) the removal of waste to any location or locations,
(b) the disposal of waste in a specified manner or at a specified facility,
(c) the taking of measures to prevent the continuance of the activity to which the notice relates,
(d) the treatment of affected lands or waters so as to mitigate or remedy the effects of the activity concerned,
(e) the taking of such other action as may be necessary to counteract any risk of environmental pollution arising from the activity concerned.
(8) A person who fails to comply with a notice under this section shall be guilty of an offence.
(9) […].’
The levy is imposed pursuant to Art 3 of the Regulations of 2002 as substituted by Art 4 of the Regulations of 2006, by which provision is made for the imposition of a landfill levy in respect of the disposal of waste at a facility by an activity referred to in the third Schedule to the 1996 Act.
Art 3 provides for the imposition of a ‘landfill levy’ in respect of the disposal of waste at an unauthorised landfill facility of €15 per tonne of waste up to 27 July 2006 and, after that date, at €20 per tonne.
The relevant parts of the third Schedule by which the activity subject to the levy is defined are para. 1 which refers to the deposit ‘into or on to land’ and para. 5 which refers to ‘specially engineered landfill’, including ‘placement into lined discrete cells which are capped and isolated from one another and the environment, etc’.
A landfill activity is authorised if it meets the requirements of Art 2 of the Regulations of 2002, as amended by Art 3 of the Regulations of 2006, where the relevant definitions for the purpose of the present case are to be found. An ‘authorised landfill activity’ is one specified in sub-arts (a), (b), or (c) of Art 4 of the 2002 Regulations. The relevant sub-article is sub-article (a) which refers to:
‘landfill activity at a facility in respect of which there is in force a waste licence, by the holder of such licence’.
Art 4(1)(c) of the Regulations of 2002 as substituted by Art 5 of the Regulations of 2006 governs the class of persons against whom the levy is payable:
‘in the case of an unauthorised landfill facility by the person who carried on or is carrying on the waste disposal activity concerned or, where that person cannot for whatever reason discharge the levy liability or in the event that responsibility for the activity cannot be imputed to any person, the owner of the facility concerned’.
Art 5(1)(a) of the Regulations of 2002 provides that the levy does not apply where the disposal is of specified non-hazardous and inert waste at an authorised landfill facility as follows:
‘Article 3 shall not apply in respect of the disposal, by means of an authorised landfill activity, of the following wastes:
a) non-hazardous waste from construction and demolition activity, comprising concrete, bricks, tiles, road planings or other such similar materials, with a particle size of 150mm or less, which is used for...
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