Tipperary farmer loses nuisance claim against nearby mining company

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Relying on the tort of nuisance, the farmer sought damages in excess of €3 million which the Court indicated was a blatant exaggeration in any event.

Since the 1960s, Mr Martin Dunne successfully farmed lands jointly owned by him and his wife in Killoran, County Tipperary. He claimed that the mining activities of Vedanta Lisheen Mining Limited since 2012, caused settlement of lands and damage to buildings.

In addition to a claim of nuisance, Mr Dunne claimed that Vedanta breached its duties under their mining lease pursuant to the Minerals Development Acts, 1940-1995.

The Lease

Article 10 of the Constitution stipulates that provision may be made by law for the management of the State’s ownership in mines and minerals.

Pursuant to the Minerals Development Acts, 1940-1995, a lease was granted to Minorco Lisheen Mining Ltd and others, for minerals including lead and zinc with a right to work those minerals in Killoran.

The parties agreed for the purpose of the High Court proceedings that Vedanta had the relevant duties imposed by the Lease.

It was submitted on behalf of Mr Dunne that the legal structure from the Constitution through to the Mining Acts and the Lease gave rise to obligations supplementary to those enforced through the law of nuisance.

Mr Dunne pointed to Clause 3 of the Lease which stated that ‘…the lessees shall be liable to pay compensation to any owner…or occupier… for all damage done to the surface of any land or to mineral deposits or to water supplies or nuisance caused either directly or indirectly by the working of the minerals’.

Additionally, Clause 26 of the Lease requires “whenever damage to the surface of any land or to mineral deposits or water supplies or a nuisance is caused” that lessees pay compensation “for such damage or nuisance”.

Nuisance

Considering the claim of nuisance, Justice O’Connor referred to Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd ILRM 629, which stated that ‘what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances’.

Experts’ Agreement

Engineering experts agreed on several points, including the fact that there were ‘no driving forces to perpetuate high displacement rates’.

That being said, they predicted that settlement ‘may continue for many years to come (10\20 years) albeit at a slow rate’.

Having considered the evidence, Justice O’Connor found that there was minimal if any settlement in the surface of Mr Dunne’s lands due to the activities of the Mine.

Mr Dunne had not established ‘on the balance of probabilities that the slight cracks in plaster on walls or changes in his outhouses and silage pit area’ were attributable to this minimal surface settlement.

Additionally, taking into consideration a 1902 Ordnance Survey map adduced in evidence showing afforestation, Justice O’Connor held that the recognition of the soil type together with reclamation and reconfiguration of the ditch in and around the farm were factors that ‘were most relevant to the cause of the depressions’. In fact, the evidence indicated that Mr Dunne’s land was less prone to water retention following the dewatering process commenced by the Mine, which ‘ameliorated the condition for farming’.

Damages

Mr Dunne sought damages of ‘€3,298,456 in restoration costs’ and lost income of ‘€183,000 for diminution in value where the Court might find liability on the part of Vedanta’.

Vedanta acknowledged in its submissions that the limitation period for claiming damages ‘runs from the occurrence of the damage which in a mining case would be if ground subsides or cracks appear, not when material deep below was excavated’. Thus, the real issue for the application of the law on damages related to the extent of damage to the surface of Mr Dunne’s lands arising from the activities of the Mine some 160 metres below.

Mr Dunne’s claim was defended principally on the basis that Mr Dunne had not established damage due to the activities of the Mine and that there was no basis to justify the damages sought.

Justice O’Connor indicated that the ‘anxiety of Mr Dunne and his advisers to formulate a claim which could cover all future possible eventualities permeated to such an extent that they lost objectivity and reasonableness’ in outlining Mr Dunne’s claim for the Court.

In addition, Justice O’Connor was of the view that while the claim was not fraudulent, the eagerness to maximise the damages ‘coloured the formulation of Mr Dunne’s claim to such an extent that the claim ultimately bordered on the surreal’.

No finding of nuisance

While emphasising that the present Court’s findings were that there was no nuisance damage and no prospect of damage based on the evidence adduced, Justice O’Connor stated that Mr Dunne may in a future claim rely on ‘the submission made on the behalf of Vedanta, that damage which might result in the future as a result of the Mine can give rise to a claim for damages’.

Apart from the Court’s conclusion that the incidents of subsidence was caused by factors other than the movement at the Mine, the fact remained that Mr Dunne was not party to the Lease and his advisors had simply stumbled upon its contents.

In any event, Justice O’Connor stated that in accordance with the Lease, ‘there was no evidence that the Mine failed to minimise damage or disturbance to the surface lands’

Mr Dunne’s claim for damages was therefore dismissed.