Cronin (Readymix) Ltd v an Bord Pleanála
| Jurisdiction | Ireland |
| Court | Supreme Court |
| Judge | Ms. Justice O'Malley |
| Judgment Date | 30 May 2017 |
| Neutral Citation | [2017] IESC 36 |
| Docket Number | [S.C. No. 304 of 2010],[Supreme Court Appeal No. 304/2010] [High Court Record No: 2007 No. 144 JR] |
| Date | 30 May 2017 |
AND
[2017] IESC 36
O'Malley Iseult J.
MacMenamin J.
Laffoy J.
O'Malley Iseult J.
[Supreme Court Appeal No. 304/2010]
[High Court Record No: 2007 No. 144 JR]
THE SUPREME COURT
Administration & constitutional law – Judicial review – Planning and development – S 4 Planning and Development Act 2000
Facts: The respondent’s site had been inspected of concerns about the operations taking place and the requirement for planning permission. The respondent contended permission was not needed and the matter was referred to the appellant for a ruling. The appellant’s decision that permission was required came before the High Court, which found for the respondent. Ryan J certified the matter for appeal to the Supreme Court.
Held by Ms Justice O’Malley that the appeal would be allowed. The submissions of the appellant that the High Court’s ruling on s 4 of the Planning and Development Act 2000’s had merit. If the High Court’s interpretation of s 4 was correct, a range of developments considerably beyond the intention of the Oireachtas would benefit from the exemption. An extension such as the item in the instant case was a development that required a grant of planning permission.
In these judicial review proceedings the respondent to the appeal (hereafter ‘Cronin’ or ‘the company’) sought an order of certiorari in respect of a ruling made by An Bord Pleanála (‘the Board’) pursuant to the terms of s.5 of the Planning and Development Act 2000 (‘the Act’). The Board had determined that works carried out by the company amounted to development and were not exempt from the requirement to obtain planning permission. The learned High Court judge (Ryan J., as he then was) granted the relief sought but also granted a certificate for appeal to this Court pursuant to s.50(4)(f)(i) of the Act. The question certified is whether or not he was correct in his interpretation of s.4(1)(h) of the Act, which led him to hold that the contentious works carried out by Cronin constituted exempted development within the meaning of the Act.
The facts relevant to the appeal can be briefly stated. Cronin operates a quarry at Coolcaslagh in Co. Kerry. The site owned by the company covers about 130 acres, of which 96 acres are used for excavation. It produces both readymix concrete and concrete blocks at the site.
In late 2003 the County Council (‘the planning authority’) became concerned about the extent of the operations and inspected the site with a view to enforcement proceedings. The inspector found a hard surfaced yard, of some two acres in extent, being used for the purposes of the block-making operation. The company's position was that quarrying and the production of concrete at the site pre-dated the Local Government (Planning and Development) Act 1963; that making concrete blocks was not different in kind to the manufacture of readymix concrete since the same ingredients were used; and that there was no new structure on the site but simply the replacement and extension of an old yard for the purpose of drying and storing the blocks prior to despatch to customers.
In May 2006 the planning authority applied for a determination from the Board under the procedure provided for in s.5 of the Act as to whether or not there had been development, and, if so, whether or not it was exempted development. The authority believed that the quarry and the concrete plant had been in existence for longer than seven years and accordingly no enforcement action could be taken in that regard. However, it considered that they were both unauthorised developments. It also said that it had established that the block manufacturing business was a recent development and therefore amenable to enforcement.
The case made by Cronin was that the works had not required planning permission. It was asserted, firstly, that the entire quarry site and related processing activities pre-dated the time of commencement of the Local Government (Planning and Development) Act 1963. It was submitted, in relation to the repaving and extension of the yard, that no new structure had been erected and that the previously-existing concrete yard had been in use as part of the established readymix concrete batching operation. The space taken up was less than two acres of a site of 130 acres. There was no appreciable increase in the extent of manufacturing operations; no perceptible traffic impact; and no perceptible noise or dust impact. The works had been carried out in a low-lying, worked out area of the quarry and were not visible from any public road or any residence in the vicinity. In those circumstances the exemption provided for in s.4(1)(h) of the Act was relied upon. The development, it was submitted, came within that provision because it constituted works for the ‘improvement’ or ‘alteration’ of a structure, which affected only the interior of the structure or which did not materially affect the external appearance of that structure so as to render its appearance inconsistent with the character of the structure.
It was also submitted that the planning authority had failed to demonstrate that the block-making amounted to a material change of use, rather than being ancillary to the overall quarry use. The batching process for the blocks was said to be no different to the process for readymix concrete, up to the point that the wet concrete emerged from the batching plant. At that point readymix concrete was poured directly into delivery trucks and taken to construction sites, whereas the blocks had to be shaped and were then laid out for three days on the paved area to dry out before delivery. The overall level of production of concrete had not changed.
The inspector who reported to the Board took the view that on the evidence, the Board could only conclude that some form of quarry operation and block manufacture was in place prior to the commencement of the 1963 Act, but that it could not be determined that no material change of use by reason of intensification had not occurred. She pointed to evidence suggesting that production had increased in 1984. In the circumstances she felt that it could not be determined that the quarry was authorised, and she therefore could not accept that the use of the batching plant was ancillary to an authorised quarry.
The inspector considered that the laying out of the hard surfaced area and the use of the two-acre part of the site for purposes related to block manufacture was of critical importance. Her conclusion was that the laying out of the hard surface area was development and was not exempted development. Her reasons were as follows:
‘In relation to the enlargement of the yard, which is stated to be about 2 acres in extent, there is no dispute between the parties that the yard has been extended to facilitate drying and storage essential to the production of concrete blocks. The operator's case is that the replacement of the old yard and the extension of the yard are not visible and that an exemption under s.4(1)(h) applies. Section 4(1)(h) relates to the “maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure…'”
I submit that the replacement /repaving and extension of a concrete yard would not be described as either maintenance or improvement of a structure as neither would allow for an extension of the area. The term “alteration” is defined to include plastering or painting, removal of plaster or stucco or the replacement of a door, window or roof that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures'.
I consider that neither the legal definition nor the ordinary dictionary definition of “alteration” encompass the concept of an extension or enlargement as a defining characteristic but rather relates to more minor changes to a structure. I consider that an extension of the yard has taken place and that this is “works” and is “development”, but would not be described as “maintenance, improvement or other alteration of any structure” and does not therefore fall within the exempted development provisions set out in section 4(1)(h) of the 2000 Act and I reject the operator's arguments in this regard.’
(Emphasis in the original.)
The inspector accepted Cronin's argument that the production of concrete blocks, as opposed to readymix, did not have a material planning impact in terms of the type and quantity of raw materials used or in relation to the traffic implications. Nor did it constitute an intensification of use in terms of materials sourced from the site and then processed and exported from the site. However, it was likely to give rise to additional noise and dust related disturbance. On this aspect, she noted that there was a private residence nearby. In addition, concrete block production required an extensive area of land for the purpose of open area storage. In this respect she considered that there had been a significant change in the nature of the process and an intensification of use of the lands. She said:
‘The production of concrete blocks is reliant on the laying out of 2 acres of a 130 acre site, of which only 96 acres is used for excavation, and the use of that land for the drying and storage of blocks. I consider that this use of land has material planning consequences in terms of the visual impact of the development when viewed from surrounding lands – natural regeneration of the...
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