Callan v Boyle Quarries Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 20 March 2007 |
| Neutral Citation | [2007] IEHC 91 |
| Docket Number | [No. 47 MCA/2006] |
| Court | High Court |
| Date | 20 March 2007 |
[2007] IEHC 91
THE HIGH COURT
BETWEEN
AND
PLANNING & DEVELOPMENT ACT 2000 S261
PLANNING & DEVELOPMENT ACT 2000 S261(7)
GUILDFORD RURAL DISTRICT COUNCIL v FORTESCUE 1959 2 QB 112
PATTERSON v MURPHY 1978 ILRM 85
BUTLER & ORS v DUBLIN CORPORATION 1999 1 IR 565 1998 1 ILRM 533 1998 12 4117
GALWAY CO COUNCIL v LACKAGH ROCK 1985 IR 120
PLANNING & DEVELOPMENT ACT 2000 S160
AVENUE PROPERTIES LTD v FARRELL HOMES LTD 1982 ILRM 21
WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374 1994 13 4310
LEEN v AER RIANTA CPT 2003 4 IR 394 2003 30 7167 2004 IEHC 34
PLANNING AND ENVIRONMENTAL LAW
Planning permission
Intensification of use - Quarry - Intensification of activity - Whether material change in use - Planning injunction - Galway County Council v Lackagh Rock Ltd. [1985] 1 IR 120 and Leen v Aer Rianta [2003] 4 IR 394 followed; Guildford Rural District Council v Fortescue [1959] 2 QB, Patterson v Murphy [1978] ILRM 85 and Butler v Dublin Corporation [1999] IR 565 considered - Planning and Development Act 2000, s 160 - Order granted restraining quarrying activities beyond certain level (2006/47MCA - Murphy J - 20/3/2007) [2007] IEHC 91Callan v Boyle Quarries Ltd
The applicant sought by way of notice of motion an order restraining the respondent from carrying out quarrying activities close to his private residence near Boyle in County Roscommon and a further order to restore the lands to the condition they were in prior to the alleged recent intensification of use, or in any event, to restore them to the condition prevailing in March 2002. The applicant alleged that the use of the lands by the respondent since 2003 was significantly more intense that its previous use and he also submitted that the crushing, screening and processing quarry to stone was a new activity commenced by the respondent in or around autumn 2003. An Bord Pleanala determined that the use of the lands involved intensification of use to a degree which resulted in the making of a material change in the use of the land and that change amounted to development.
Held by Murphy J. in allowing the application: That having regard to all of the circumstances, including the determination of An Bord Pleanala there was intensification of use to such an extent as to amount to a material change in use. The applicant was entitled to maintain proceedings under section 160 of the Act of 2001 and the remedy sought was not disproportionate. The plaintiff was entitled to an order restraining the respondent from carrying out quarrying activities at the relevant site in excess of 80,000 tons per year or in excess of 16 loads per day or 2 per hour.
Reporter: L.O’S.
By notice of motion dated 31st May, 2006, Mr. Callan, (the applicant), sought an order restraining Boyle Quarries Limited, (the respondent) from carrying out quarrying activities close to his and his wife's residence near Boyle in County Roscommon and a further order to restore the lands to the condition they were in prior to the alleged recent intensification of use or, in any event, to restore the lands to the condition prevailing in March 2002.
The quarry was on lands owned by John Cryan.
The respondent, which was incorporated on 28th April, 2003, had acquired a licence to quarry on the lands from John Cryan. Mr. Gerry McManus is a director of the respondent company.
The application is grounded on the affidavit of Mr. Callan who describes the quarry as being a large scale quarry within 300 metres of where he lived. He says the operation of the quarry is without the benefit of planning permission and is therefore unlawful. He says the unsuitable road access to the quarry, which runs immediately adjacent to his and his wife's residential property results in very significant inconvenience and nuisance from the operation of the quarry including intolerable noise and continuing intensive heavy truck movements. Both he and his wife are retired and spend most of their days at home.
Notwithstanding the absence of planning permission the respondent was registered as a quarry on 11th October, 2004. He believed such registration did not grant an exemption to the carrying out of unauthorised development.
Mr. Callan avers that on 27th August, 2003, agents on behalf of the quarry and/or on behalf of Mr. Gerry McManus, informed Roscommon County Council of its intention "to recommence extraction via drill and blast methodology and processing via mobile crushing and screening units" in the said quarry. It was asserted that the quarrying activities would be similar to the historic quarrying activities.
On 4th September, 2003 a meeting was held between Mr. McManus and officials of the Roscommon County Council after which the respondent erected offices, toilets and a very substantial weighbridge, mobile crusher and screening plant on the site. The meeting led to further correspondence eon behalf of the respondent and its agent, Quarry Plan.
Mr. Callan referred to a copy of the Planning Enforcement Report following a site inspection conducted by Caroline Menton, an Executive Engineer at Roscommon County Council on or about the 16th December, 2003. The report noted that the respondent was drawing material at the rate of six loads per hour, equating to 50 loads per day. It also noted that the access road was substandard in width being 4 to 4.5 metres in width. The report concluded that there were difficulties in deciding "whether blasting should be allowed to recommence".
By letter dated 17th February, 2004 Roscommon County Council requested An Bord Pleanála to express its view on whether the proposal to recommence quarrying was development or exempted development.
At the same time the Council investigated the construction of a stock car/speeding race track at the quarry.
An Bord Pleanála's inspector's report summarised the respondent's submission that Roadstone's level of production was high as the quarry was a replacement quarry and that it could be estimated that a production level of 80,000 tonnes per annum was achieved during that time.
The inspector referred to the original complainant, a Mr. Barry, who had stated that 12 vehicles had use of the facility daily which would equate to 65,000 tonnes per annum.
By order dated 24th June, 2004, An Bord Pleanála determined that the matter by concluding:-
"The use of the land at present for the quarrying and processing of rock involves intensification of use to a degree which has resulted in the making of a material change in the use of the land relative to the use on the appointed day having regard to the proper and sustainable development of the area … (the) change in the use of land (comes within the meaning of) development …"
The said quarrying activities including the processing, crushing, screening and drill and blast methodology extraction at Letfordspark, Boyle, Co. Roscommon is development and is not exempted development.
Mr. Callan furnished one of three declarations. Mr. Callan's statutory declaration dated 3rd September, 2003 is in the following terms:
2 "1. This declaration refers to the property at Letfordspark, Boyle, Co. Roscommon owned by John Cryan of Carrick Road, Boyle, Co. Roscommon.
2. I am aware of my own knowledge that there is a quarry on the said property owned by the said John Cryan.
3. I am also aware from my own knowledge that the said quarry has been operated and in use since the 1950s and certainly prior to 1963 and that the said quarry has been operated on a continuous basis."
Mr. Callan was, at that time, acting as solicitor for John Cryan. The statutory declaration was notwithstanding, sworn in a personal capacity.
Ms. Eileen Cryan made a statutory declaration in the same terms.
John Cryan in his statutory declaration stated that the property which contained a quarry had been owned by him and his predecessors and title for almost 100 years. This was verified by the fact that the map shows a quarry thereon. He understood that the said ordinance map was surveyed in around 1912. He said further that he was aware from his knowledge the quarry had been operated on a continuous basis since the 1950s and he could recall Roscommon County Council carrying on quarrying in the property in the 1950s. He repeated the declarations made by Ms. Cryan and by Mr. Callan.
Mr. Callan averred that he had lived next to the quarry for 78 years and confirmed that the new use of the lands by the respondent since the autumn of 2003 was significantly more intense than its previous use. Prior to September 2003 the maximum number of truck movements per day was sporadic, two or three a day, not every day or even every week.
He personally monitored truck movements on certain days in February and May 2006. There were 15 to 20 per hour entering and a further 15 to 20 per hour leaving - on average one hundred fully loaded trucks left the quarry each day with a similar number returning unladen.
Roscommon County Council carried out traffic monitoring over a four day period in December 2005 which indicated average truck movements per day from the quarry to Boyle at 52 and from Boyle to the quarry at 47. The average movement of trucks per day from the quarry to Carrick on Shannon was 30 with 27 returning. This would indicate a total of 82 laden and 74 unladen. No indication was given of the capacity of the trucks.
Mr. Callan confirmed the inspector's view that the crushing, screening and processing quarry to stone was a new activity commenced by the respondent in or after autumn 2003 and that this constituted material change of use on the...
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