Bencik and Another v Hilltop Quarries Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Nolan
• Judgment Date: 20 October 2025
• Neutral Citation: [2025] IEHC 551
• Court: High Court
• Docket Number: 2024 / 333 MCA

In the Matter of Section 160 of the Planning and Development Act 2000 and in the Matter of Section 11 of the Local Government (Water Pollution) Acts 1977–1990

Between

Michael Bencik and Yvonne Nolan

Applicants

and

Hilltop Quarries Limited and David Condell

Respondents

and

Carlow County Council

Notice Party

[2025] IEHC 551

2024 / 333 MCA

THE HIGH COURT

PLANNING AND ENVIRONMENT

Remediation – Unauthorised development – Damage – Applicants seeking orders directing the respondents to remediate the damage that they had done to the lands – Whether the court should not impose any significant sanction in circumstances where an application could be made for retention of the works

Facts: The High Court (Holland J), on 30 July 2024, made an order pursuant to s. 160(1)(a) of the Planning and Development Act 2000 (PDA) directing the respondents, Hilltop Quarries Ltd and Mr Condell, to cease from carrying out unauthorised quarrying and other activities including blasting, extraction, processing, production, storage or distribution of the stone and associated material removed from lands at Craanlusky, Bilboa, Co. Carlow, comprised in Folio 27868F County Carlow. The respondents failed to abide by the order. The applicants, Mr Bencik and Ms Nolan, brought an application for attachment and committal. Having issued their motion they decided not to seek the attachment and committal of the second respondent but instead sought orders, pursuant to s. 160(1)(b) of the PDA, directing the respondents to remediate the damage that they had done to the lands. The respondents argued that the court should not impose any significant sanction, and in particular not make an order directing that the respondents remediate the damage they had done, in circumstances where it was hoped that an application could be made to the County Council for retention of the works undertaken. The applicants said that that would reward the respondents for their illegal behaviour.

Held by Nolan J that the admitted actions of the respondents amounted to a criminal offence; therefore, prima facie the applicants were entitled to the orders sought. He noted that the matter was subject to the discretion of the court and Meath County Council v Murray [2017] IESC 25 set out the factors which the court should take into consideration in exercising that discretion. He found that it was a material, significant and gross breach. He found that Mr Condell and the company not only had a very poor attitude to planning control, he failed entirely to engage with the planning authorities, his neighbours and most crucially the court. Nolan J regarded their actions as culpable disregard. He found that the public interest in upholding the integrity of the planning and development system could not be more engaged. He did not accept that the applicants were guilty of delay; they relied upon the representations of the second respondent. Nolan J held that by failing to direct the respondents to remediate the lands and allow them to seek retention from the County Council, the court would be rewarding them for their illegal behaviour. He found that there were no exceptional circumstances which would come to their aid and he did not regard the giving of an undertaking to the court as being some form of mitigation.

Nolan J made an order requiring the respondents, their servants or agents, licensees or anyone acting in concert with them, to cease the unauthorised use and unauthorised development and that the lands are restored to their condition prior to the commencement of the unauthorised development.

Application granted.

JUDGEMENT of Mr Justice Nolan delivered on the 20 ^th day of October 2025

Introduction

1 . On the 30th of July 2024 Holland J. made an Order pursuant to Section 160(1)(a) of the Planning and Development Act 2000 (as amended) (“PDA”) directing the Respondents to cease from carrying out unauthorised quarrying and other activities including blasting, extraction, processing, production, storage or distribution of the stone and associated material removed from lands at Craanlusky, Bilboa, Co. Carlow, comprised in Folio 27868F County Carlow.

2 . Notwithstanding the clear terms of the Order, the Respondents failed to abide by it. Indeed, the uncontroverted evidence of the Applicants is that the activity intensified over the following two months. Not surprisingly in the face of this clear breach of a Court Crder, the Applicants brought an application for attachment and committal.

3 . To that end they served the Court Order again, this time with a penal endorsement. Having issued their motion they have decided not to seek the attachment and committal of the Second Named Respondent but instead simply seek orders, pursuant to Section 160(1)(b) of the PDA, directing the Respondents to remediate the damage that they have done to the lands. That, in essence, is an order directing the Respondents to refill the large crater or craters which were created by their unauthorised quarrying activities. That is the kernel of this application.

Background

4 . The Applicants are a married couple who live with their daughter across the road from the lands of the Respondents. Indeed, they are their next-door neighbours. In June of 2020 they purchased their home and noted that there was an abandoned works across the road from them. Being prudent purchasers, they talked to their perspective neighbours and were told that the lands were an abandoned test quarry.

5 . Sensibly they checked the Planning Register of Carlow County Council (“the County Council”) and discovered that there was no existing planning permission for a quarry, only an expired one, from over a decade ago.

6 . The lands were wild and overgrown with small trees and shrubs. There were two small ponds which attracted wildlife, which were remnants of the previous quarrying activities. Nature had taken back the lands to its bosom.

7 . In late of 2020 a large gate was installed on the lands and a roadway built. They met the Second Named Respondent and asked what was going on. He told them that the gate was to stop illegal dumping and that he was planning to rent the lands to local farmers. The Applicants were delighted and said as much, noting that they would be against any quarrying on the site. He reassured them, stating he was reclaiming the land and making it useful for pasture. He even gave permission for them to walk on the lands, if they so wished.

8 . All that changed in late 2022. At that stage the Second Named Respondent started bringing large vehicles onto the lands and constructed a new drainage system, moving a lot of earth and as it transpires, stone. He simply stated he was levelling the land out to make it better pastureland for cattle, when challenged.

9 . Thereafter a significant amount of topsoil and other material including bedrock was moved, digging up, what was described as an entire field. The Applicants have said that at times there could be anything up to six large machines with diggers and rock crushing machines present. That is not a surprise since the Respondents' website shows a large number of crushing machines with associated vehicles used for the purposes of primary and secondary crushing. Mr Flynn SC for the Respondents has told me, on the basis of his instructions, that the photographs which appear on the website, are not of the quarry in question. I accept what he says. Naturally if it transpires that even one of those photographs represent the work done on the quarry, it would be a matter of grave concern.

10 . Not only were the Applicants worried in relation to what was going on, so was the County Council. On the 23rd of August 2023, the County Council wrote to the Respondents saying that it had come to their attention that an unauthorised development may have been or was being carried out on the lands. It said in clear terms that such a development was against the law. It pointed out that it was an offence to carry out such activity and on conviction of indictment a fine of €12 million plus could be imposed or imprisonment of two years.

11 . In the face of this correspondence one would have thought that a reasonable person would be most concerned and would seek advice. Not only did that not happen but the activity continued. Indeed, it continued right up to the day of service of the Order made by Holland J.

12 . Again, one would have thought that in the face of a High Court order, which ultimately carried a penal endorsement, the activity would stop, but it didn't. It only stopped when the motion for attachment and committal was listed, at which point that the Second Named Respondent gave an undertaking that the works would stop.

13 . In the papers are photographs taken of some of the activities of the Respondents on the lands. They show significant digging and quarrying works. There is no doubt that there would have been some previous works undertaken at the old quarry, but it is clear from the photographs, and not significantly disputed, that new works have caused dramatic and detrimental damage to the lands.

14 . Mr Flynn points me to a report which was prepared in relation to the groundwater assessment. That is the only expert report which has been produced and it simply deals with the risk of groundwater presented by the quarry. It says nothing about planning permission.

15 . In his replying affidavit in October of 2024, the Second Named Respondent says that he first had the benefit of legal advice on the 26th of September 2024. That is hard to...