Cleary Compost and Shredding Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 10 July 2017
• Neutral Citation: [2017] IEHC 458
• Docket Number: [2015 No. 454 JR]
• Court: High Court
• Date: 10 July 2017

BETWEEN

CLEARY COMPOST

AND

SHREDDING LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

[2017] IEHC 458

Baker J.

[2015 No. 454 JR]

THE HIGH COURT

Planning and Development – Planning & Development Act (‘PDA’), 2000 – Planning permission – Exempted development – Unauthorised use of land – Environmental impact assessment

Facts: The applicant sought an order, by way of judicial review, for quashing the decision of An Bord Pleanala (‘Board’) by which it dismissed an appeal by the applicant for the grant of planning permission to extend the existing composting facility. The applicant contended that the Board had erred in its approach while dealing with the application and in reviewing the planning history of the composting facility. The applicant argued that the decision was not supported by evidence, unreasonable and contrary to natural justice. The respondent contended that the developments made by the applicant neither benefitted from the planning permission nor exempted from the requirement of obtaining permission. The respondent contended that they had arrived at the decision on the basis of the report of the inspector, which concluded that the category could not be categorised as exempted as it required Environmental Impact Assessment and Appropriate Assessment.

Ms. Justice Baker dismissed the applicant's application. The Court held that there was no irrationality in the approach of the Board while giving the decision. The Court held that the Board had logically determined that the activity and works on the site were unauthorised as no planning permission was sought to extend the facility. The Court found that the extension of the existing composting facility constituted development, which was not an exempted development. The Court noted that the requirement to obtain the planning permission could be exempted only if the permission was a continuation of the pre-1964 user, as in such cases, the development would not be treated as unauthorised even if it was a development.

JUDGMENT of Ms. Justice Baker delivered on the 10th day of July, 2017.

1 The applicant seeks an order by way of judicial review quashing the decision of An Bord Pleanála dated 8th June, 2015 by which it dismissed an appeal pursuant to its powers contained in s. 138(1)(b)(i) of the Planning and Development Act, 2000 (as amended) (‘the PDA’). Declarations are sought in regard to the approach of the Board to the appeal and to the planning history of the composting activity to which the application related. It is argued that the decision was not supported by evidence and is unreasonable, and was made without fairness of process and contrary to natural justice.

Relevant factual background

2 The applicant is a limited liability company and the owner of Larchill Farm at Larchill, Monasterevin in the County of Kildare comprising approximately 300 acres which historically was an arable farm on which was cultivated under rotation a wide range of crops including spring wheat, winter barley, winter wheat, oil seed rape, peas and previously, sugar beet. The applicant carries on at Larchill a waste management or a ‘composting facility’ involving the processing and storage of horticultural and agricultural waste and organic materials, and the compost product is used to replenish the soil on Larchill. The operation in respect of which the applicant first engaged the planning process involved the bringing of organic materials onto part of the site for processing, storing and composting of these materials on site and spreading on the lands as required. The applicant also conducted a research and development project as part of its business.

The planning history of the site

3 The facility has the benefit of three planning permissions granted by Kildare County Council in 1995, 2000 and 2006 for the erection of a number of sheds for the storage of grain, hay, fodder and ancillary works, references 95/0234, 00/0094 and 06/2553. The composting activities were commenced after the last of these planning permissions was granted in 2006.

4 The level of activity has increased and certain structures were constructed to facilitate the increased storage and processing of the increased load.

5 On 28th January, 2015 the applicant appealed the refusal on 23rd December, 2014 by Kildare County Council to grant planning permission to extend the existing composting facility to accept and treat an additional annual quantity of 12,000 tonnes of waste in the facility together with ancillary works to facilitate the extension of that activity (09.244409).

6 The Board refused the appeal having come to a view that the planning history of the facility did not support the application for an extension as the activity did not have the benefit of planning permission nor was it exempt under the Act.

7 The decision of the Board issued on 8th June, 2015 stated in simple and stark terms:

‘Dismiss the said appeal under subsection (1)(b)(i) of section 138 of the Planning and Development, 2000, based on the reasons and considerations set out below.’

8 The reasons and considerations comprise part of the basis of challenge in this judicial review, and the application also challenges the manner by which An Bord Pleanála came to the decision to dismiss the appeal under the statutory power contained in s. 138(1)(b)(i).

Grounds of judicial review

9 Leave was granted by Noonan J. on 27th July, 2015 to bring application for judicial review. The grounds will appear in the course of this judgment and in summary are :

(a) The respondent misconstrued the nature of the existing use and activity, and its finding that the existing development was unauthorised was not supported by any evidence, was made without finding by a court competent to so determine, and where the planning authority had determined that the activity and works on the site were not development, or if they were development were exempt.

(b) The decision of the respondent was unreasonable or irrational.

(c) The respondent made its finding unilaterally, without notice and without affording the applicant opportunity to make submissions, and is contrary to fair procedures and natural justice.

Reasons given by the Board

10 The Board determined that it was ‘inappropriate for the Board to give any further consideration to the grant of planning permission’. The reasons were stated as follows:

‘The subject application is for development comprising the extension of an existing composting facility. It has already been decided by An Bord Pleanála that:

(a) the existing composting facility is a waste management facility which does not have the benefit of planning permission or does not benefit from any exemptions from the requirement for planning permission under the Planning and Development Acts, 2000 – 2014 or regulations made thereunder, and

(b) the existing composting facility is a development which requires an environmental impact assessment and an appropriate assessment to be carried out.’

11 The Board, having noted previous planning decisions, went on to state that it considered it inappropriate to give any further consideration to the application:

‘unless and until its planning status is regularised, as to do so would be contrary to orderly development and the proper planning and sustainable development of the area.’

12 The Board gave a second reason arising from the fact that retention permission is precluded by European law as follows:

‘Furthermore, the option of seeking to extend the scope of the subject application to include the existing operations is not open to the Board, because s. 34(12) of the Planning and Development Act, 2000, as amended, precludes the Board from considering an application for retention of development where an environmental impact assessment or appropriate assessment is required.’

13 This is a reflection of the determination of the CJEU in Commission v. Ireland, Case C-215/06, [2008] E.C.R. I-4911.

14 In conclusion, the Board considered that it should not further entertain the application:

‘The Board is satisfied that, in the particular circumstances, the appeal should not be further considered by it, having regard to the nature of the appeal.’

15 In summary, the Board determined that, as the existing facility did not benefit from planning permission, nor was exempt from the requirement to obtain permission, and because an Environmental Impact Assessment (‘EIA’) or Appropriate Assessment (‘AA’) were required, it could not entertain the appeal.

16 The first argument of the applicant is that the Board erred in failing to have regard to three declarations made by Kildare County Council regarding the facility, and that its decision is as result irrational and wrong in law. I turn now to examine these.

Three s. 5 declarations of Kildare County Council

17 The applicant made three separate applications for declaration under s. 5 of the PDA in respect of the works or use of the land.

18 On the first referral, Kildare County Council made a declaration on 9th March, 2009 (Ref: ED/00300) that the proposed works were exempted development having regard to the ‘nature and limited extent and scale of the activity’.

19 The second s. 5 declaration made on 30th December, 2010 (Ref: ED/00353) determined that the proposed works were exempted development having regard to the definition of agriculture contained in s. 2 of the PDA and to the exempting provisions relating to agriculture contained in section 4.

20 The third s. 5 declaration made on 7th June, 2011 (Ref: ED/00371) has the most relevance to the question in dispute. The questions posed were whether:

‘(1) continued use of the farmland for the processing, storage of compost to include the importation of green waste and spent mushroom compost and the processing and storage of the green waste only in an...