DCC agree to pay landowner £37.5k

The settlement was agreed after Bernard McFadden took an action against the local authority for what it claimed was “an inadvertent trespass on a very small portion of Mr McFadden’s lands at Culmore adjacent to the former landfill site, that occurred in the course of construction of a bund wall/embankment marking the boundary of the landfill site between 1997 and 2004.”

The proceedings against the Council were halted after the settlement was agreed following a hearing in the Chancery Division of the High Court on Thursday, October 6.

Under its terms the Council had to pay Mr McFadden £37,500 within three weeks as well as his reasonable costs.

It also agreed to indemnify Mr McFadden in respect of any proceedings taken against the Plaintiff relating to the escape of leachate from Council-owned lands.

In a report before Derry City Council’s Environmental Services Committee tomorrow the City Solicitor Damien McMahon explains that the “small encroachment was brought to the attention of the Council by the former owner of the lands, J. J McDaid (Haulage) Limited, once the works were completed.”

“The Council readily accepted that an encroachment had inadvertently occurred and offered to purchase the lands for £30,000 (as recommended by LPS) as being the most practical and reasonable way of resolving the issue. The lands in question were scrubland and of little practical use,” the report states.

“However, this was rejected by the then owner. It appears that the then owner was labouring under a severe misconception that the Council had encroached on the lands by depositing both hazardous and non hazardous waste.

“The only resolution he was interested in was one that involved removal of the ‘waste’ the cost of which he estimated at various amounts culminating in Mr McFadden’s the week before the action commenced in the High Court, asserted a cost of some £3.3m,” it adds.

The report argues that the material deposited on the lands was not waste but engineered construction material.

“In 2005, the then owner of the lands sold the lands to Mr McFadden,” the report continues. “While knowledge of the alleged dumping of waste on the lands must have been known to Mr McFadden, he still purchased the lands.”

The report says that whilst this did not bar Mr McFadden from bringing proceedings - which he did in 2009 - it was “a most unusual state of affairs.”

“The principal person in the company, J.J McDaid (Haulage) Limited, the vendor who sold the lands to Mr McFadden, apparently has a family relationship with Mr McFadden. It is understood that the lands, in two portions were purchased by Mr McFadden for £60,000,” the report states.

It goes on to argue that the settlement to pay Mr McFadden £37,500 and to indemnify him against action arising from the potential escape of leachate from Council property was a positive outcome.

“This was an extremely good result for the Council and, in essence, represents what the Council had suggested to the former owner of the lands, J.J McDaid (Haulage) Limited, when the encroachment onto the lands was drawn to the Council’s attention. It is most unfortunate that Mr McFadden felt it necessary to issue proceedings,” the report concludes.