Cork County Council & Froggat and Others v Slattery Pre-Cast Concrete Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 19 September 2008
• Neutral Citation: [2008] IEHC 291
• Docket Number: [No. 103 MCA/2007]
• Court: High Court
• Date: 19 September 2008

Cork County Council & Froggat & Ors v Slattery Pre-Cast Concrete Ltd & Ors

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF

THE PLANNING AND DEVELOPMENT ACT 2000,

AND IN THE MATTER OF AN APPLICATION BY CORK COUNTY

COUNCIL

BETWEEN

CORK COUNTY COUNCIL

APPLICANT

AND

SLATTERY PRE-CAST CONCRETE LIMITED, PATRICK SLATTERY, ROSE SLATTERY AND DECLAN SLATTERY

RESPONDENTS

AND

BETWEEN

BRIAN FROGGAT, WILLIAM CASHIN AND DENNIS DALY

PLAINTIFFS

AND

SLATTERY PRE-CAST CONCRETE LIMITED, ROSE SLATTERY, DECLAN SLATTERY AND PATRICK SLATTERY

DEFENDANTS

[2008] IEHC 291

[No. 103 MCA/2007]

[No. 5661 P/2007]

THE HIGH COURT

PLANNING & DEVELOPMENT LAW

Unauthorised development

Permission - Increase in scale of business - Whether works carried out without permission - Whether material intensification of use without permission - Allegations of nuisance - Complaints - Retention application - Refusal of retention permission - Length of limitation period - Presumption against retrospectivity - Scale of operation prior to commencement of limitation period - Whether lands incorporated into site without permission - Whether intensification giving rise to material change of use - Assessment by reference to planning criteria - Effect in terms of traffic volumes, noise, dust or visual amenity - Whether production of ready-mix concrete unauthorised except as ancillary activity - Whether erection of unauthorised structures - Whether sufficient nexus between structures and existing permission - Effect of limitation period - Whether existing permission carries natural evolution of business - Construction of planning documents - Judicial discretion - Recognition of unlawfulness - Recklessness - Conduct of company - Delay in commencement of proceedings - Damages for nuisance - Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565, Butler v Dublin Corporation [1999] 1 IR 565, Lanigan and Benghazi Ltd v Barry (Unrep, Charleton J, 15/2/2008), Molumby v Kearns (Unrep, O'Sullivan J, 19/1/1999), Trio Thames v Secretary of State for the Environment and Reading Borough Council [1984] JPL 183, Jillings v Secretary of State for the Environment [1984] JPL 32, Galway County Council v Lackagh Rock Limited [1985] IR 355, Waterford County Council v John A Wood [1999] 1 IR 556, Dublin County Council v Carty Builders & Co Ltd [1987] IR 355, XJS Investments Ltd v Dun Laoghaire Corporation [1987] ILRM 659, Dublin Corporation v Herbert Mulligan (Unrep, Finlay P, 6/5/1980), Morris v Garvey [1982] ILRM 177, Dublin Corporation v Maiden Poster Sites [1983] ILRM 48 and Dublin Corporation v O'Dwyer Bros (Unrep, Kelly J, 2/5/1997) considered - Planning and Development Act 2000 (No 3), s160 - Enforcement of all aspects of claim not statute barred ordered (2007/103MCA and 5661P - Clarke J - 19/9/2008) [2008] IEHC 291

Cork County Council v Slattery Pre-cast Concrete Ltd

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 PART VIII

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007

PLANNING & DEVELOPMENT ACT 2000 S160(6)

CONSTITUTION ART 15

KENNY v BORD PLEANÁLA 2001 1 IR 565

PLANNING & DEVELOPMENT ACT 2000 S2

BUTLER v DUBLIN CORPORATION 1999 1 IR 565

LANIGAN & BENGHAZI LTD v BARRY & ORS UNREP HIGH CHARLETON 15.2.2008 2008 IEHC 29

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PAR 2-64

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PAR 34

MOLUMBY & ORS v KEARNS & ORS UNREP HIGH O'SULLIVAN 19.1.1999 1999/18/5619

CORK CO COUNCIL & FROGGAT & ORS v SLATTERY PRE-CAST CONCRETE & ORS UNREP HIGH CLARKE 19.9.2008 2008 IEHC 291 PAR 4.1

PLANNING & DEVELOPMENT ACT 2000 S160(6)(a)(II)

PLANNING & DEVELOPMENT ACT 2000 S160(6)(a)(I)

TRIO THAMES v SECRETARY OF STATE FOR THE ENVIRONMENT & READING BC 1984 JPL 183

JILLINGS v SECRETARY OF STATE FOR THE ENVIRONMENT & THE BROADS AUTHORITY 1984 JPL 32

GALWAY CO COUNCIL v LACKAGH ROCK LTD 1985 IR 120

WATERFORD CO COUNCIL v JOHN A WOOD LTD 1999 1 IR 556

DUBLIN CO COUNCIL v CARTY BUILDERS & CO LTD 1987 IR 355

WALSH PLANNING & DEVELOPMENT LAW 1ED 1979 17

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1987 ILRM 659

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963

DUBLIN CORPORATION v MULLIGAN UNREP HIGH FINLAY 6.5.1980 1980/5/969

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963 S31

MORRIS v GARVEY 1982 ILRM 177

PLANNING & DEVELOPMENT ACT 2000 S162(3)

DUBLIN CORPORATION v MAIDEN POSTER SITES 1983 ILRM 48

DUBLIN CORPORATION v O'DWYER BROS (MOUNT ST) LTD UNREP HIGH KELLY 2.5.1997 1997/8/2765

Mr. Justice Clarke

1.Introduction

2 1.1 Slattery Pre-Cast Concrete Limited ("Slatterys") was, in many respects, a company whose fortunes mirrored the boom in the construction industry associated with the Celtic Tiger. From very small beginnings in the late 1990s Slatterys' business grew to a very great extent. That business, as it developed, was concerned largely with the supply of ready-mix concrete although, in its initial stages, it had been principally concerned with the supply of pre-cast concrete products.

3 1.2 The business was conducted at a rural site about 2.5 kilometres north-west of Rathcormac village near Fermoy in County Cork. It is the growth and extension of that business that gives rise to these proceedings. In the first above named proceedings the applicant ("Cork County Council") alleges that Slatterys are in breach of planning law in that it is said that a planning permission given in respect of the relevant concrete business related to a much smaller enterprise so that much of the physical structures and use carried out on the site are said to be unauthorised. Statutory orders under s. 160 of the Planning and Development Act 2000, ("the 2000 Act") are sought in that regard. The allegations largely turn on what is said to have been an impermissible extension of both the scale and extent of the business.

4 1.3 In the second above named proceedings the various individual plaintiffs also seek orders under s. 160 of the 2000 Act, on the same basis as that asserted by Cork County Council. However, in those proceedings an additional claim is made in respect of an alleged nuisance which in turn stems from what is said to be the consequences of a significant extension in the scale of the business operation.

5 1.4 Against that general background it is appropriate to turn to the issues which arise in somewhat greater detail.

2.The Issues

2 2.1 I propose addressing the planning issues first.

3 2.2 Both Cork County Council and the individual plaintiffs claim that there has been a breach of the 2000 Act under two broad general headings. Firstly, it is said that certain physical works were carried out by Slattery's which are not the subject of planning permission. Secondly, it is said that there has been a material intensification of use without an appropriate permission. It will be necessary to analyse the precise components of both of those allegations in due course. However, in general terms, and without necessarily conceding each and every element of the respective claims, Slatterys accept that the operation currently in progress near Rathcormac does not have the benefit of a planning permission sufficient to allow it to be conducted in the manner to be observed on the ground.

4 2.3 However, it is argued that all (or at least some) of the planning claim is statute barred. A number of issues, both legal and factual, arise under this heading.

5 2.4 Firstly there is an issue between the parties as to whether, properly construed, the limitation period in question is one of five years or seven years.

6 2.5 Secondly, there is a question of fact as to the precise stage of development which the business had reached at various points in time and in particular, (in the event that seven years is the appropriate limitation period) at the time which was seven years prior to the commencement of both of these proceedings.

7 2.6 Thirdly, there is a question as to the proper approach which the court should adopt in relation to an incremental development of a business in circumstances where the limitation period starts to run in the course of that incremental development. While it will be necessary to address the legal principles by reference to which a material change of use is to be assessed later in the course of this judgment, it is clear that not every increase in the use to which a property may be put can amount to a material change in use. Therefore, questions will inevitably arise as to the point in time at which it can be properly said that there were any breaches of the 2000 Act. This question has obvious relevance to the limitation point given that it is only breaches which had occurred more than seven or five years prior to the commencement of the relevant proceedings which can be said to be statute barred. In an extreme case if there were no breach prior to whichever of those periods is found to be applicable, then the limitation period could have no application.

8 2.7 However, in addition, questions arise as to the proper approach of the court in circumstances where it is shown that there had been a material change in use, at a time prior to the operation of the relevant limitation period but where there continued, thereafter, to be a further intensification of the use concerned.

9 2.8 Fourthly, and finally so far as the planning aspects of the case are concerned, Slatterys adopt a fall-back position in the event that I am not persuaded by their primary argument to the effect that any breach of the planning laws is no longer enforceable by virtue of the expiry of the relevant limitation period. In those circumstances it is suggested, correctly so far as it goes, that the court retains a discretion to decide what should be done. On that basis I am asked to consider an alternative approach to imposing an immediate prohibitory order which would have the effect...