Dublin County Council v Sellwood Quarries Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Gannon J.
• Judgment Date: 01 January 1981
• Neutral Citation: 1981 WJSC-HC 1619
• Date: 01 January 1981

1981 WJSC-HC 1619

THE HIGH COURT

1980 No. 91 M.C.A.

Dublin County Council v. Sellwood Quarries

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1976 AND

IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

BETWEEN:

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Applicant

and

SELLWOOD QUARRIES LTD., PATRICK NORBERT DUNNE,

CHBISTOPHER KEVIN DUNNE AND EOIN KIERAN DUNNE

Respondents

1 Judgment of Gannon J. delivered the 16th of December 1980

2 This is an application by Dublin County Council for an order pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976restraining Sellwood Quarries Ltd. and its Directors from carrying out unauthorised development as alleged at lands known as Glenasmole Sandpit and other ancilliary orders in relation to the use of these lands. There are basic questions of fact for determination from which inferences of law must be drawn. In addition to the affidavits filed in support of the application,and controverting these, three of the deponents whose affidavits are before the Court were cross-examined on their affidavits. There is some conflict in the evidence but such as there is has little bearing upon the fundamental issues.

3 The Respondent Company is the occupier of a parcel of land the subject of a lease dated the 4th of July 1964 between Diarmuid O'Riordan of the one part and the Engineering Corporation of Ireland Limited of the other part for a term of 50 years from the 27th of April, 1964. The lands are therein described as "all that the plot of ground and the quarries, strata, seams of sand, gravel and rock which may be got by quarrying and excavations from the surface and open to the daylight and not by underground workings within or under the said plot of ground being part of the lands of Glassamucky in the barony of Uppercross and County of Dublin containing 29 acres 1 rood 32 perches statute measure or thereabouts". The history of the use of this parcel of land is that from 1926 to 1964 it was used by the O'Riordan family as a sand and gravel pit or quarry on a commercial basis. The work of extraction was done mostly by manual labour, and removal mostly by horse-drawn vehicles though in the later years motor-lorries were used. The successive owners since the granting of the lease have continued extracting sand and gravel. A Mr. Charles Farrell had the land for this purpose from 1965 to 1979 when he transferred his interest to the Respondents. Mr. Farrell, who was cross-examined on his affidavit, said he first started using mechanical equipment in 1968 and that he first started extracting rock by blasting in 1975. The lease granted by Mr. O'Riordan, reserving progressively increasing yearly rents payable in a manner to give a regular weekly income to him, is inconsistent in its terms with the oral evidence given by Mr. O'Riordan to the effect that so far as he knew there was only sand and gravel and no rock in the land and that rock was first discovered in 1976/77. I do not believe that to be true. The inference that I draw from the evidence is that it was known to Mr. O'Riordan prior to 1964 that there was rock in the land but that it was not reasonably or economically accessible without extensive extraction of sand and gravel. The rock could not be extracted in any practicable quantity without freeing it by controlled blasting. According to Mr. Farrell this was first done in 1975 and was done also in 1976 and 1977 and 1979. Since May 1979 the Respondents have acquired the interests of the Engineering Corporation of Ireland Limited for the purpose of extracting the rock on a commercial basis. It is not clear from the evidence whether or not the Respondents are extracting sand and gravel from the lands.

4 They have equipment to a value which Mr. Patrick Norbert Dunne estimates at £500,000 and give employment to 14 persons with an expectation of increasing this number to 25. They have applied considerable care and technical skill to the work of blasting, extracting, crushing, screening and selling the rock from this quarry and have...