Tipperary man's claim against council is dismissed

A CLAIM against Offaly County Council, four of its employees and a Shinrone man was dismissed at the Circuit Court on Thursday, December 7.

Harry Slevin, Aglish, Roscrea, had sought damages for trespass, damage, loss and distress as a result of filling material being dropped on a roadway to a bog at Clonlisk, Shinrone seven years ago.

Mr Slevin brought the action against the council, its district engineer for Birr, John Mitchell, Ide O'Connell from its environment section, Billy Dooley, a council general service supervisor and litter warden Padraig Minnock. Daniel Mullally, Clonlisk, Shinrone, was a sixth defendant.

A day long hearing had taken place previously at Tullamore Circuit Court and today Judge Karen Fergus delivered her judgment in Portlaoise.

Judge Fergus noted that Mr Slevin had represented himself and other than his address, the civil bill gave no information about him. Mr Mullally had turbary rights on Mr Slevin's bog but information like that “had to be gleaned in a piecemeal fashion” during the hearing.

In his claim, Mr Slevin said that in June, 2017 following a phone call to the council notifying it of waste material containing Japanese knotweed along a roadway into his property at Clonlisk bog, the plaintiff met Padraig Minnock, the litter warden.

The meeting took place at the property and Mr Minnock identified the vegetation as Japanese knotweed, both at the entrance and 300 metres along the roadway.

Mr Slevin claimed that at 8pm on June 23, 2017, when Mr Minnock was still present, Dan Mullally arrived with a tractor and lowloader to remove a tracker digger.

Mr Slevin claimed Mr Mullally had trespassed with the digger and wrongfully used it to spread waste material containing knotweed on the roadway through the land, devaluing the plaintiff's property.

The plaintiff further stated that on July 13, 2017 he spoke to Ide O'Connell of the council's environment section and showed her a document which said he was the title owner of 187 acres of the Clonlisk bog.

Ms O'Connell told him the council had been treating the Japanese knotweed on the road at the entrance to his Clonlisk property and the spreading along the roadway was not as damaging as he feared and that Dan Mullally had probably asked the council men to put the waste material on the roadway having removed it from another site.

Mr Slevin said he subsequently met John Mitchell and Billy Dooley from the council and asked to see legally required waste transfer documentation and was told by Mr Mitchell: “We are the council.”

That seemed to imply that the council did not need to have legally required documentation for the trespass and removal of the contaminated material, the claim said.

Mr Slevin's claim said it was agreed that the waste material be removed and that was done by the council on August 4, 2017.

Judge Fergus detailed how the council and its employees responded to Mr Slevin's claim, saying they asked on what basis it was alleged they had trespassed, sought clarification of individual trespasses, and asked Mr Slevin to specify the items of loss and damage he suffered. The council requested that allegations made by him be withdrawn.

On March 20, 2018 Mr Slevin responded, saying he was enclosing replies in a letter but there were none. His covering letter asked questions about permits or licences the council would have needed.

In April, 2018 Mr Slevin did respond to the council's request for details and alleged the council employees had knowledge of the illegal dumping but failed to stop it.

He said he'd consider the request to withdraw the allegations on condition the council take responsibility for the illegal dumping and pay compensation for damage and loss.

Mr Slevin also claimed he was in hospital for a hip replacement in May 2017 and only discovered the dumped material the following month.

Judge Fergus said it was accepted by the defendants that in May and June 2017 excavated road filling material was delivered at or near the mouth of the laneway at Clonlisk. Mr Dooley had been requested to do so by Dan Mullally in May 2017.

Mr Mullally had represented that he was the owner or occupier or was in control of the land or acting under the authority or permission of the owner and he was going to use the material to repair the roadway and improve his access to the bogland.

The council defendants said they were acting in good faith but denied that the material was contaminated by Japanese knotweed.

The material was removed and remedial works carried out at no cost to the plaintiff.

Mr Mullally also denied that the filling material, which he used to fill potholes because he had a right of way and turbary rights, contained knotweed. Mr Mullally also alleged that Mr Slevin would have been guilty of contributory negligence if he knew about the knotweed and failed to put warning notices in place.

The judge said Mr Slevin did not call any witnesses and advised the court that he had experience of conducting cases, “right up to the Supreme Court”.

She said he was not au fait with the rules of evidence and he conducted the case in a time consuming manner and had abused process at times, even though the court made every effort to accommodate him.

He attempted to introduce a claim for loss of business opportunity without it being pleaded and without “a single piece” of evidence.

On the morning of the hearing when he had finished his evidence he came back in the afternoon and demanded an amendment to his pleadings to allow a claim for aggravated damages for the manner in which the defendants had conducted their defence, before the defendants had gone into evidence.

About midway through the afternoon he announced he would be appealing the judge's decision before any decision had been delivered.

He did produce evidence confirming his ownership of the land since he purchased it in 1978 but the purchase was subject to the rights of persons digging, saving and carrying away turf and the use by them of the approaches to turf banks to get access.

Judge Fergus said Mr Slevin had by his own admission managed over the last 30 years to get rid of any other person who had turbary rights apart from Mr Mullally.

He had a “long standing issue” with Mr Mullally and she was satisfied Mr Mullally had turbary rights to the bog and the right to go in and out to maintain his access.

Mr Mullally appeared to have arranged with the council to deliver material to the site which was spread over a few days to improve the access.

The judge said “given the history” between Mr Slevin and Mr Mullally it was not a suprise he did not engage with the plaintiff in advance but he should have as a matter of courtesy and he should not have told the council he was the full owner.

She said that while the council were led to believe Mr Mullally was the owner of the land she was satisfied that was a genuine mistake and as soon as it was realised they agreed to remove the waste by arrangement with Mr Slevin.

The judge then referred to an “additional claim” made by Mr Slevin during the defendants' evidence that a further 3,000 tonnes of illegal waste had been deposited by the council on his lands.

She said that was “nothing short of ridiculous and is not supported by any evidence” other than a bald assertion.

She dismissed the cases against the council employees and also noted the court had heard the council was exempt from requiring a licence for certain types of fill waste material.

She said Mr Slevin had failed to establish the waste contained Japanese knotweed and the only witness who addressed that issue was offered by the defendants, Professor Joe Caffrey, of Invas Biosecurity, an Irish company specialising in control of invasive species.

Professor Caffrey confirmed that it was clear from photos taken by council that healthy well established Japanese knotweed plants were at the location long before the material was dropped in June 2017.

He visited both the site where the fill material came from and where it was delivered to and found no Japanese knotweed at either place.

He examined the Clonlisk site in 2019 and the infestation had been treated and was virtually clear and this year he visited again and there was no evidence of any live Japanese knotweed.

She dismissed the plaintiff's claim against all the defendants.

Judge Fergus added that she wished it to be put on record that while every citizen had the right to access justice and the courts tried to accommodate litigants in person, the time spent trying to identify the issues in a case that had not been properly pleaded was frustrating. Time had been wasted “in a court system that is bursting at the seams”.

She also said a plaintiff accusing the judge of bias and failing to properly listen perhaps “comes with the territory” nowadays but the defendants who come to court to defend the claim were also entitled to be treated in a fair manner.

She said they were courteous and patient in the face of persistent accusations of being “perjurers and liars” by the plaintiff, behaviour which she found unacceptable and completely uncalled for.

The judge told counsel for the defendants, Will Fennelly and Willie Penrose, that they were entitled to their costs.

Mr Slevin indicated his wish to appeal the matter and following a request from Mr Penrose it was agreed that appeal documentation to the High Court would not name the individual council employees.

Mr Slevin also said he would be applying for digital audio recordings of the hearing and the judgment and he had identified a person to transcribe them.