Devils Glen Equestrian Centre Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 12 October 2010
• Neutral Citation: [2010] IEHC 356
• Court: High Court
• Date: 12 October 2010

[2010] IEHC 356

THE HIGH COURT

[No. 724 J.R./2009]

Devils Glen Equestrian Centre Ltd v Wicklow Co Council

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED BY SECTION 13 OF THE PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006

BETWEEN

DEVILS GLEN EQUESTRIAN CENTRE LIMITED

APPLICANT

AND

WICKLOW COUNTY COUNCIL

RESPONDENT

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 6 CLASS 10

PLANNING & DEVELOPMENT ACT 2000 S4

PLANNING & DEVELOPMENT ACT 2000 S4(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT REGS 2001 ART 3 SCHED 2

O'KEEFE v BORD PLEANALA 1993 1 IR 39

WHITE v DUBLIN CITY COUNCIL 2004 1 IR 545

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)(I)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)(III)

KEEGAN v STARDUST COMPENSATION TRIBUNAL 1986 IR 642

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORP 1948 1 KB 223

CORK CO COUNCIL & DUN LAOGHAIRE RATHDOWN CO COUNCIL v SHACKELTON & GLENKERRIN HOMES 2008 1 ILRM 185 2007/11/2182 2007 IEHC 241

MCKERNAN v EMPLOYMENT APPEALS TRIBUNAL (EAT) 2009 2 IR 7 2008/38/8200 2008 IEHC 40

MURPHY v MIN SOCIAL WELFARE 1987 IR 295

KERRANE v HANLON 1987 IR 259

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S152

O'CONNOR v KERRY CO COUNCIL 1988 ILRM 660

FLYNN MACHINE & CRANE HIRE LTD v WICKLOW CO COUNCIL UNREP O'KEEFE 28.5.2009 2009/21/5225 2009 IEHC 285

PLANNING & DEVELOPMENT ACT 2000 S154(II)

PLANNING AND DEVELOPMENT

Unauthorised development

Exempted development - Enforcement notice - Validity of notice -Judicial review - Appropriate forum - Alternative remedy - Irrelevant considerations - Reasonableness - All weather gallops - Whether exempted development - Whether race and exercise track or enclosed paddock arena - Whether respondent asked itself wrong question - Whether respondent fell into error of law - Whether judicial review was appropriate forum to review issuing of enforcement notice - Whether alternative remedy available - O'Connor v Kerry County Council [1988] ILRM 660 followed; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; White v Dublin City Council [2004] 1 IR 545; Keegan v Stardust Compensation Tribunal [1986] IR 642; Cork County Council v Shackleton [2007] IEHC 241 (Unrep, Clarke J, 19/7/2009); McKernan v EAT [2008] IEHC 40 (Unrep, Feeney J, 5/2/2008); Murphy v Minister for Social Welfare [1987] IR 259 and Flynn Machine and Crane Hire Ltd v Wicklow County Council [2009] IEHC 285 (Unrep, O'Keeffe J, 28/5/2009) considered - Planning and Development Act 2000 (No 30), ss 2, 4 and 5 - Planning and Development Regulations 2001 (SI 600/2001), arts 6 and 9 - Reliefs refused (2009/724JR - Hedigan J - 12/10/2010) [2010] IEHC 356

Devils Glen Equestrian Centre Ltd v Wicklow County Council

1 Judgment of Mr. Justice Hedigan delivered on the 12th day of October, 2010.

1. Introduction

2 2 1.1 The applicant is the owner of an equestrian centre on lands at Devils Glen, Ashford, Co. Wicklow which is used for the training of horses and has been in operation for about 11 years. On the 16 ^th of June 2009, the respondent, Wicklow County Council, issued an enforcement notice in relation to an "all weather gallops" constructed by the applicant at the equestrian centre. The applicant now seeks declaratory relief that this notice is invalid.

2. Background facts

3 2 2.1 In 2009, upon the advice of its planning experts that planning permission was not required, the applicant constructed at the equestrian centre an all weather training area for horses which was partly covered with an all weather surface (the "gallops"). The gallops comprise circa 2,000 metre long elongated loop on an approximately east-west alignment. From its starting point at the east end, the horses are galloped uphill for about 1,000 metres; this part of the gallops consists of a proprietary material known as Ecotrack, an all weather material which is meant to simulate the grip that horses get on turf. It is laid on a draining bed comprised of stone overlaid by porous tarmacadam. The material itself consists of sand, fibres and rubber which have been molecularly coated in wax. The next 1,000 metre portion of the gallops is known as the bridle path. This has been surfaced with broken stone and "dirty pit-dash run" fine gravel, i.e. gravel that has not been washed and contains small quantities of dirt or clay.

4 3 2.2 On the 6 ^th March, 2009 the respondent served a notice letter upon the applicant warning that the gallops was possibly an unauthorised development. The applicant responded by letter of the 11 ^th March, 2009 stating that they had consulted an architect in relation to the construction of the gallops and had been unequivocally advised that the works were exempt development. The applicant further responded by way of a written submission, drafted by the applicant's architect, T. O'Phelan Design Limited dated the 1 ^st April, 2009 arguing that the gallops was an exempt development under Article 6 and Class 10, Part 3, Schedule 2 of the Planning and Development Regulations 2001 (the 2001 Regulations). Class 10 provides exemption for:-

"The erection of an unroofed fenced area for the exercising or training of horses or ponies together with a drainage bed or soft surface material to provide an all weather surface."

5 4 2.3 Prior to the issue of the enforcement notice, the respondent wrote a second warning letter on the 4 ^th June, 2009 (the second warning letter) to the applicant. It provided as follows:-

6 "The development of the subject "all weather gallops" conforms more to actual race and exercise track (includes in part at this stage the standard race course metal railings) then an enclosed paddock arena and thus it does not come within the exempted provisions of Class 10, Part 3, Schedule 2 of the Planning and Development Regulations 2001 (as amended). It is the opinion of the Planning Authority that the latter exemption provisions apply to enclosed paddock arenas that have a soft ground surface. A section of the "all weather gallops" that is defined as "gallops" on the site layout plans submitted with the said submission of T. O'Phelan Design Limited has been surfaced to date with a layer of tarmacadam. The provision of such a hard surface automatically places this development outside of the provisions of the said Class 10 exemption provisions, but in any event the nature ( i.e. its appearance and layout) and extent ( i.e. the cumulative length of the track of some 2,000 metres) of the subject all weather equestrian facility is considered by the Council to be a development that is not covered by Class 10. The full wording of this provision of the 2001 Planning Regulations is included at the foot of this letter."

7 You will note that the scope of the wording of this exemption provision does not provide for the development of ancillary vehicular parking and horse assembly area. Therefore the development by you of such an area at the south eastern end of the subject site, constitutes a non-exempted development per se.

8 Therefore Wicklow County Council considers that the development of the subject "all weather gallops" is in its entirety including the bridle path and ancillary car park constitutes a non-exempt development with reference to the provisions of s. 3(1) and (4) of the 2000 Planning Act and the associated planning regulations.

9 In addition, the planning authority considered that the full operation of the subject "all weather gallops" at a completed stage would possibly give rise to increased traffic into the Devils Glen Equestrian site, and thus will "endanger public safety by reason of traffic hazards" and thus come within the de-exemption provisions of Article 9(1)(a)(iii) of the Planning and Development Regulations 2001 (as amended).

10 There is also a possibility that the completion of the subject "all weather gallops" and its full operation will give rise to an intensification of use of an existing equestrian facility that will be of material significance ( i.e. a material change of use) for planning control purposes such as impacts on traffic safety on the adjoining regional road, create traffic congestion on the site - endanger the health and safety with respect to other users of the internal access routes that straddle and transgress the subject gallops and bridle track. such a material change of use per se is likely to bring this development within the scope of the definition of development in s. 3(1) of the 2000 Planning Act."

11 5 2.4 The respondent issued an enforcement notice on the 16 ^th June, 2009 (the Notice), which required the applicant to cease all works and use with respect to all features of the gallops until such time as the development obtained the benefit of planning permission. On the 27 ^th June, 2009, the applicant was granted leave to seek judicial review to challenge the validity of the notice. The applicants contend that the second warning letter shows that the respondent applied incorrect reasoning in the issuing of the notice.

3. The applicant's submissions

12 2 3.1 The applicant contends that the development constitutes an exempted development under s. 4 of the Planning and Development Act (the 2000 Act), particularly s. 4(1)(a) which exempts certain developments from the requirements to obtain planning permission, including such developments:-

"consisting of the use of any land for the purpose of agricultural and development consisting of the use of that purpose of any building occupied together with lands so used."

13 Section 2 of the Act of 2000 defines "agriculture" as including ( inter alia):-

"The training of horses and the rearing of bloodstock …"

14 3 3.2 The 2001 Regulations...