Corrib Community Association Company Ltd by Guarantee v Killola Quarries Ltd and Others
|09 November 2023
| IEHC 610
|[2023 No. 326 MCA]
In the Matter of Section 160 of the Planning and Development Act 2000 And in the Matter of Section 10 of the Local Government (Water Pollution) Acts 1977 To1990
 IEHC 610
[2023 No. 326 MCA]
THE HIGH COURT
JUDGMENT of Humphreys J. delivered on Thursday the 9th day of November, 2023
. This matter primarily concerns an injunction application by a community association in relation to ongoing blasting and other works at a quarry in Co. Galway that has never had the benefit of a normal planning permission.
. The second and third respondents (“the relevant respondents”) say that the lands were previously owned by the second named respondent's father, John Power, who purchased them in the late 1950s or early 1960s. The relevant respondents say that the lands were used for quarrying activity prior to 1st October, 1964, being the coming into effect of the Local Government (Planning and Development) Act 1963.
. Galway County Council brought planning enforcement proceedings against the second respondent in 2004. It appears from records obtained under Access to Information on the Environment (AIE) regulations by the applicant's solicitors that Galway County Council failed to produce evidence to the court contradicting oral evidence of the mother of the second respondent that there was a pre-1964 use of the site for quarrying. Consequently, the prosecution failed to establish their case for unauthorised development and the case was dismissed.
. An application under s. 261 of the Planning and Development Act 2000 was made to Galway County Council on 23rd May, 2005 by the second respondent.
. From 15th August, 2006 onwards, the first respondent operated the quarry by agreement with the owner, the second respondent.
. Galway County Council registered the quarry under s. 261 on 25th April, 2007 under reference no. QY80. The registration included the imposition of 17 conditions on the operation of the quarry. The total quarry area at the time of the s. 261 application and registration was given as 22ha, with an extraction area of 5ha.
. Registration of quarries under s. 261 is not equivalent to planning permission, but it does allow the imposition of conditions pending substitute consent. Non-compliance with such conditions renders the quarry an unauthorised development (s. 261(6)(aa)).
. Mr Doyle, a director of the applicant, comments as follows on the s. 261 conditions:
“23. … [in July 2022] I emailed the Council for some information about the mitigation measures I had seen in the paperwork. I got an email back saying it was forwarded to the relevant person for ‘their direct attention’. I did not hear anything back.
24. Eventually I learned that this was typical of the Council's responses and between the inevitable toing and froing, and my use of the Freedom of Information Act I did get a response on 28th July via email with a copy of the conditions as laid out in a letter to the second Respondent on the 25th April 2007. I now know that these are the conditions of what is called a ‘quarry registration’ under Section 261 of the Planning and Development Act. The email also stated I could look up these documents online via their Planning Documents Repository. When I read through to them it was obvious that they were not being complied with, in particular the conditions of operating times, dust, noise or vibrations. I knew this because I could hear work underway at the Quarry from approximately 6am in the morning to very late in the night-time, often up to 11pm.”
. On 3rd August, 2012, Galway County Council issued a notice under Section 261A(3)(c) of the Planning and Development Act 2000, as amended, directing the first and second respondents to apply to An Bord Pleanála for substitute consent with a remedial EIS and remedial NIS.
. On 13th September, 2013, an application was made for substitute consent to the board. The application included a remedial EIS and a remedial NIS (ABP reference SU07.SU0060).
. The board has jurisdiction to grant substitute consent under s. 177K of the 2000 Act but that is only on fairly stringent conditions.
. The inspector's report makes clear that the substitute consent is purely historic, and defines the development to which the consent relates as development from 1990 to 2012.
“Description of Development
3.2 The application site forms part of a wider landholding (c.22ha) on which quarrying has been carried out on an occasional, small scale but continual basis between the early 1960s and the early 1990s. More intensive and mechanised methods of extraction commenced in the early 1990s.
3.3 The development comprises the quarry development carried out on site since the inception of the EIA legislation in Ireland (1st February 1990) to the date of the planning authority's determination (3rd August 2012). The site area referred to by the applicant is the quarry area that informed the planning authority's determination under section 261A(3)(c) i.e. the extraction area at the quarry in August 2012 of 3.015ha (Figure 1–3 in EIS, p4). All ancillary structures including the quarry weighbridge, office, garage, canteen, wheel wash etc. are outside of this area, lying directly south of it.
3.4 In 1995 limestone was extracted from an area of 0.067ha (see Drawing Quarry Progression 1995–2013, Appendix 3.1, rEIS). Since this time the area of extraction has increased progressively to a current extraction area of 3.015ha. Limestone was traditionally extracted from the quarry by mechanical means (early 1990's to c.2000) with subsequent rock breaking, crushing and screening for the production of aggregates. In 2000 blasting was introduced with 1–2 blasts each year rising to 2–4 blasts each year by 2006 and falling to 2–3 times a year since 2010.”
. As regards possible future operation of the quarry, the inspector said the following:
“11.2 In the course of the application for substitute consent the planning authority recommended conditions to be attached to any grant. Some of these refer to the future operation of the quarry (signage, wheelwash, refuelling, waste material) and do not apply as the application for substitute consent only refers to works carried out. The proposed conditions in respect of a development contribution (roads) and restoration seem reasonable in particular given the volume of traffic emanating from the quarry over the period of substitute consent application and the impact of the development on the ecology of the site.”
. Could the inspector have been clearer that future operations were not being consented? I don't think so.
. In an order dated 28th January, 2015 the board granted substitute consent. The conditions are phrased in terms of restoration and are clearly formulated as relating to historic matters only. The total absence of conditions that would be essential if ongoing operations were covered is consistent with this.
. The conditions were as follows:
1. This grant of substitute consent shall be in accordance with the plans and particulars submitted to An Bord Pleanála with the application on the 13th day of September 2013. The grant of substitute consent relates only to development undertaken, as described in the application, and does not authorise any future development on the said site.
Reason: In the interest of clarity.
2. A detailed restoration scheme for the site in accordance with the broad principles indicated on drawing number 6.14 ‘Landscape Restoration Strategy’ submitted to the Board on the 13th day of September 2013, shall be submitted to the planning authority for written agreement within three months of the date of this order. The restoration scheme shall extend to the lands surrounding the quarry which fall within the operator's ownership and shall include a timeframe for implementation.
Reason: In the interest of the visual amenities of the area, to ensure public safety and to ensure that the quarry restoration protects and enhances ecology.
3. Within three months of the date of this order, a summary of all existing and proposed mitigation measures shall be submitted to, and agreed in writing with, the planning authority, including where relevant, a timescale for implementation.
Reason: In the interest of clarity.
4. Within three months of the date of this order, proposals for a surface water drainage system and water quality management system, to include a timeframe for implementation and mitigation measures set out in the remedial Environmental Impact Statement, to manage surface water flows within the site and to protect groundwater shall be submitted to, and agreed in writing with, the planning authority.
Reason: To ensure protection of groundwater quality and to provide for the satisfactory disposal of surface water.
5. Within three months of the date of this order, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or other security acceptable to the authority to secure the provision and satisfactory restoration of the site, coupled with an agreement empowering the planning authority to apply such security or part thereof to the satisfactory restoration of any part of the site. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Bord Pleanála for determination.
Reason: To ensure the satisfactory restoration of the site.”
. On 1st March, 2019, the first respondent surrendered its operating rights at the quarry. Such rights were then conferred on the proposed fourth respondent, Noel Welby Plant Hire Ltd.
. Matters started to come to a head following the combination of the ...
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