Elaine Kelly Dunne v Guessford Ltd (Trading as Oxigen Environmental)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 21 September 2021
• Neutral Citation: [2021] IEHC 583
• Court: High Court
• Docket Number: 2018 No. 308 MCA

In the Matter of Section 160 of the Planning and Development Act 2000 (As Amended)

Between

Elaine Kelly Dunne

Noel Moore

Ann Flynn

David Kelly

Annette McGrath

Louise O'Sullivan

Claire Moore

Matt Kelly

Michael Kelly

Applicants

and

Guessford Limited (Trading as Oxigen Environmental)

Respondent

[2021] IEHC 583

2018 No. 308 MCA

THE HIGH COURT

Planning and development – Planning permission – Enforcement – Applicants seeking an order prohibiting the respondent from accepting any waste at a waste facility other than construction and demolition waste – Whether the activities being carried out at the waste facility were in breach of the terms of its planning permission

Facts: The applicants, Ms Dunne, Mr Moore, Ms Flynn, Messrs Kelly, Ms McGrath, Ms O’Sullivan and Ms Moore, lived in the vicinity of a waste facility. The respondent, Guessford Ltd, was the operator of the waste facility. The applicants alleged that the activities being carried out at the waste facility were in breach of the terms of its planning permission. In particular, it was said that the authorised use was confined to the recycling of construction and demolition waste, and did not permit the acceptance and treatment of non-inert, commercial or municipal waste. The respondent, conversely, insisted that the authorised use encompassed a much broader range of activities. In particular, it was said that commercial waste and timber may be received and treated at the facility.

Held by the High Court (Simons J) that the development in respect of which retention planning permission had been granted was described as the retention of a recycling facility for construction and demolition materials. Simons J held that there was nothing in the planning application documentation which purported to expand the use to be retained beyond the recycling of construction and demolition waste; rather, the use to be retained was clearly and consistently identified throughout the planning application as involving the recycling of construction and demolition waste. Simons J held that, on its proper interpretation, the planning permission was confined to that use. Simons J held that the term “construction and demolition” is self-explanatory and would be understood, by the hypothetical “ordinary and reasonably informed” reader, as referring to waste material generated by activities involving the construction and demolition of buildings; such waste material would be understood as including, for example, stone and soil from excavations, brick, rubble and concrete. Simons J held that as the issue of the interpretation of the planning permission had been resolved against the respondent, it had no factual answer to the complaint that the vast bulk of the waste received was from sources other than construction and demolition. Simons J held that it would not be a proper exercise of the court’s discretion to refuse relief.

Simons J held that an order would be made prohibiting the respondent, its servants and agents, from accepting any waste at the Barnan waste facility other than construction and demolition waste; the order would expressly prohibit the acceptance of mixed dry recyclables, waste from household or commercial skips, or waste from civic amenity sites. Simons J held that the planning permission did not authorise the treatment, by shredding, of any timber at the facility; accordingly, an order would be made prohibiting the respondent from carrying on such activities. Simons J held that an order would also be made prohibiting the respondent from accepting any fridges, waste electrical and electronic equipment, beds, mattresses, sofas or tyres.

Planning injunction granted pursuant to s. 160 of the Planning and Development Act 2000.

Appearances

Oisin Collins and Margaret Heavey for the applicants instructed by O'Connell Clarke Solicitors

Conleth Bradley, SC and Michael O'Donnell for the respondents instructed by John C. Kieran & Son Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 September 2021

INTRODUCTION

1 These proceedings are enforcement proceedings taken pursuant to the planning legislation and concern the planning status of a waste facility. The proceedings have been brought by a number of individuals who live in the vicinity of the waste facility (“ the applicants”). The respondent to the application is the operator of the waste facility, Guessford Ltd (“ the respondent”).

2 The applicants allege that the activities being carried out at the waste facility are in breach of the terms of its planning permission. In particular, it is said that the authorised use is confined to the recycling of construction and demolition waste, and does not permit the acceptance and treatment of non-inert, commercial or municipal waste. The respondent, conversely, insists that the authorised use encompasses a much broader range of activities. In particular, it is said that commercial waste and timber may be received and treated at the facility.

3 The resolution of these proceedings requires the court to address two issues, in sequence, as follows. First, the extent of the authorised use under the planning permission must be determined. It will be necessary to consider whether the nature of the permitted development, as described in the body of the planning permission, has been enlarged upon by reference to the documentation submitted as part of the planning application. Secondly, the evidence before the court must be assessed in order to determine whether any of the activities carried out at the waste facility fall outside that authorised use. As discussed presently, the parties have agreed that the exhibited documents are to be treated as admissible evidence of the truth of the contents thereof. This agreement has greatly reduced the compass of the factual dispute between the parties.

4 Before turning to address these two issues, it is necessary first to consider the planning history of the lands.

PLANNING HISTORY

5 The lands the subject-matter of these proceedings are located at Barnan, Daingean, County Offaly. The lands are currently being operated as a waste facility by the respondent (“ the waste facility” or “ the Barnan facility”).

6 There is only one planning permission relevant to these proceedings. This is a retention planning permission granted on 18 June 2010 (“ the planning permission”). The planning permission bears the reference “PL2/09/439” on the planning authority's statutory register.

7 Given the dispute between the parties as to the meaning and effect of the planning permission, it is necessary to rehearse the events leading up to the grant of planning permission in some detail.

8 The lands had previously been used for agriculture. Thereafter, development consisting of, inter alia, the making of a material change in use of the lands, and the erection of certain structures, was carried out from February 2006 onwards. The change of use and the development works constituted “unauthorised development” in that no planning permission had been obtained prior to the commencement of the development.

9 Some years later, the then owners of the lands took steps to regularise the planning position by seeking retention planning permission. The application for retention planning permission had been submitted to Offaly County Council (“ the local authority”) on 20 October 2009.

10 The application had been made in the name of the then owners of the lands, Kevin Daly and Michelle Daly. The documentation submitted as part of the planning application refers to the operators of the facility as a company, described variously as “Concrete Recycling Specialists Ltd” or “CRS Ltd”. This company held a waste facility permit from the local authority. (See further paragraph 37 et seq. below).

11 As required under the Planning and Development Regulations 2001, public notice of the retention application had been published in advance. The public notice described the “nature and extent” of the development as follows:

“OFFALY COUNTY COUNCIL

Kevin & Michelle Daly are applying to the above authority for retention permission for recycling facility for construction and demolition materials, incorporating storage buildings, bunker, offices, weighbridge, plant & machinery, storage yard, effluent treatment system and all ancillary services and permission to construct 1st ( sic) aid fire fighting water tank at Barnan, Daingean.”

12 The same description of the nature and extent of the development appears in the pro forma planning application form. The use which it had been sought to retain (and the nature and extent of that use) are described as follows at item 15 of the form: recycling facility for construction and demolition materials and all ancillary services.

13 A second application form had also been completed. This is headed up “Supplementary Application Form No. 2 – Industrial/Commercial”. The first item on this form required the applicant for permission to specify precisely the nature of the proposed development. This is answered as follows: “Recycling of construction & demolition of building materials”. The second item required the applicant for permission to specify details of raw material involved in the process. This is answered as follows: “Construction & Demolition waste”.

14 The planning application had been accompanied, inter alia, by an environmental report in support of the application (“ the environmental report”). This report is dated 19 October 2009 and had been compiled by RME Environmental. It should be explained that this document does not constitute an environmental impact statement (“EIS”) for the purpose of the Environmental Impact Assessment Directive.

15 (There had been a page missing from the version of the environmental report exhibited in the proceedings, but the solicitors acting for the applicants have, at the request of the court, since furnished a full copy of...