Donegal County Council v P Bonar Plant Hire Ltd TA Bonar's Quarry

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 July 2020
• Neutral Citation: [2020] IEHC 349
• Docket Number: [2020 No.137 MCA]
• Court: High Court
• Date: 16 July 2020

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

DONEGAL COUNTY COUNCIL

APPLICANT

AND

P BONAR PLANT HIRE LTD T/A BONAR'S QUARRY

RESPONDENT

[2020] IEHC 349

Barr J.

[2020 No.137 MCA]

THE HIGH COURT

Interlocutory injunction – Planning and Development Act 2000 s. 160 – Balance of justice – Applicant seeking an interlocutory injunction – Whether the balance of justice lay in favour of the grant of interlocutory injunctive relief against the respondent

Facts: The applicant, Donegal County Council, applied to the High Court seeking an interlocutory injunction pursuant to s. 160 of the Planning and Development Act 2000, restraining the respondent, P Bonar Plant Hire Ltd, from carrying on what it maintained was unauthorised quarrying at a quarry situated at Calhame, Letterkenny, Co. Donegal. The essence of the respondent’s defence was set out at paragraphs (14)–(18) of the affidavit sworn by Mr Bonar, a director of the respondent, on 15th June, 2020. He accepted that in a decision dated 2nd April, 2019, An Bord Pleanála refused permission for the carrying out of quarrying works at the site. He stated that the respondent complied with that direction and ceased all quarrying and related activities in an area of the site, which he had called the “extended area”. The respondent stated that he had continued to quarry the rest of the site, which he alleged had been used as a quarry prior to 1st October, 1964. He alleged that that area had been continuously used as a quarry since quarrying began in the area sometime in the 1930s. He stated that the working of the existing quarry constituted a continuation of the works that were reasonably contemplated when the works commenced prior to 1st October, 1964. He further stated that the operation of the quarry had not intensified to such an extent as to amount to a material change in use that would require planning permission.

Held by Barr J that, having applied the test set down in Campus Oil v Minister for Industry and Energy [1983] I.R. 82, he was satisfied that there was a serious question to be tried, damages would be an adequate remedy to the respondent, but would not be an adequate remedy to the applicant, and the balance of justice lay in favour of the grant of interlocutory injunctive relief against the respondent.

Barr J held that the applicant was entitled to the reliefs sought at paragraphs (1) and (2) of the notice of motion.

Application granted.

JUDGMENT of Mr. Justice Barr delivered on the 16th day of July, 2020

Introduction

1 In this application, the applicant is seeking an interlocutory injunction pursuant to s. 160 of the Planning and Development Act, 2000, restraining the respondent from carrying on what it maintains is unauthorised quarrying at a quarry situated at Calhame, Letterkenny, Co. Donegal.

2 The essence of the respondent's defence, is set out at paragraphs (14) - (18) of the affidavit sworn by Mr. Patrick Joseph Bonar, a director of the respondent, on 15th June, 2020. He accepts that in a decision dated 2nd April, 2019, An Bord Pleanála refused permission for the carrying out of quarrying works at the site. He stated that the respondent complied with that direction and ceased all quarrying and related activities in an area of the site, which he has called the “extended area”.

3 The respondent states that he has continued to quarry the rest of the site, which he alleges had been used as a quarry prior to 1st October, 1964. He alleges that that area had been continuously used as a quarry since quarrying began in the area sometime in the 1930s. He states that the working of the existing quarry constitutes a continuation of the works that were reasonably contemplated when the works commenced prior to 1st October, 1964. He further states that the operation of the quarry has not intensified to such an extent as to amount to a material change in use that would require planning permission.

Background

4 The background to this case has been set out in extensive detail in the affidavit sworn by Mr. Martin McDermott, Planning Enforcement Officer and Executive Planner employed by the applicant, on 29th May, 2020. His account of the various steps that were taken in relation to works carried on at the quarry and in relation to various planning applications that were lodged over the years, has not been seriously disputed by the respondent.

5 It is accepted that there was a small quarry on part of the lands prior to 1st October, 1964. On 8th January, 2003, the previous operator of the quarry, Mountain Top Quarry Ltd., made an application for retention and extension of the existing quarry. On 28th June, 2004, An Bord Pleanála (hereinafter referred to as “the Board”), refused permission and noted that “any future application for retention and extension of this quarry should be accompanied by an environmental impact statement”. Thus, in 2004, the Board was of the view that this was a quarry that required to be the subject of an Environment Impact Assessment (EIA) under the EIA Directive.

6 The previous operators of the quarry, Mountain Top Quarry Ltd., provided information for registration of the quarry under s. 261 of the Planning and Development Act, 2000 on 8th April 2005, which was finalised by Donegal County Council on 26th October, 2007.

7 On 6th October, 2006, Mountain Top Quarry Ltd. lodged an application for retention permission for removal of topsoil and extension of the quarry. This was accompanied by an Environmental Impact Statement (EIS).

8 On 10th June, 2008, the Board granted planning permission to the quarry operator. Condition No. 2 attaching to that permission, stated that the permission was to operate the quarry for a period of five years “unless a separate permission for a further duration has been granted within this period”. Condition No. 5 required the submission of landscape and restoration plans, which had to be implemented within 12 months of expiry of the planning permission.

9 On 12th December, 2012, the previous operator applied to Donegal County Council for an extension of the duration of the 2008 permission for a further five years. That extension was granted, whereby the 2008 permission was extended until 9th June, 2018.

10 In 2014 the respondent took over operation of the quarry.

11 On 11th January, 2018, the respondent made an application to Donegal County Council for “the continuation of quarrying activities for a period of 10 years on a site of 7.3 hectares”, which represented an application covering the entire of the quarry site. On 12th July, 2018, planning permission was granted by Donegal County Council; however a third party appeal was lodged with the Board on 3rd August, 2018.

12 The 2008 planning permission expired on 9th June, 2018. The respondent ceased works at the quarry as of that date.

13 On 2nd April, 2019, the Board refused planning permission for the continuation of quarrying activities for two stated reasons: firstly, because the Board was not satisfied that the development would not adversely affect the integrity of the Leannan River Special Area of Conservation (SAC), a designated European site located 3.5 km from the quarry and, secondly, because the Environmental Impact Assessment Report submitted with the planning application was considered to be inadequate.

14 While there was no quarrying for an initial period from that date, quarrying operations recommenced on the site, in or around 26th April, 2019. Complaints had been received by the applicant from members of the public that quarrying works were being carried on at the site.

15 On 26th June, 2019 an Enforcement Notice issued to the respondent requiring the cessation of quarrying within six weeks. This notice was not complied with by the respondent. On 13th February, 2020 the applicant issued District Court summonses in respect of the alleged offence of non-compliance with the enforcement notice, which was returnable to 5th May, 2020. The hearing of that matter was adjourned due to the Covid-19 pandemic.

16 In his affidavit sworn on 29th of May, 2020, Mr. McDermott stated that while site inspections carried out on 22nd June, 2018 and 19th October, 2018 had established that quarrying works had ceased during that period, subsequent site inspections following the receipt of a complaint by the applicant on 26th April, 2019, that unauthorised works were being carried on at the site, revealed that such works were being carried on by the respondent at the quarry. In this regard, Mr. McDermott referred to a site inspection that had been carried out by Mr. McFeely on behalf of the applicant on 31st May, 2019. He referred to the report that had been submitted by Mr. McFeely, which was exhibited to the affidavit sworn by him. It was clear from the observations made by Mr. McFeely at that inspection that the respondent was carrying out quarrying works on the day of the inspection, including rock-breaking, without planning permission.

17 It was also clear from the report that Mr. Patrick J. Bonar, refused to give any undertaking on behalf of the respondent, to cease extraction of stone and the processing of materials on the site. It was following that inspection that the enforcement notice was issued and served on the respondent on 26th June, 2019.

18 As appears from the affidavit sworn by Mr. McFeely, a further site inspection on 30th August, 2019 revealed that quarrying and quarrying related activities had not ceased; stone was being extracted by rock-breaking on the day of the inspection and stone was being stockpiled and processed on the lands.

19 On 25th March, 2020, Mr. McDermott carried out an inspection of the site. The reason for that inspection had been due to the receipt of complaints by the applicant from people living in the vicinity, that...