Fowler v Keegan Quarries Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice White
• Judgment Date: 28 October 2016
• Neutral Citation: [2016] IEHC 602
• Court: High Court
• Docket Number: [2012/463MCA]
• Date: 28 October 2016

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

AND IN THE MATTER OF AN APPLICATION

BETWEEN

ROBERT HENRY FOWLER

APPLICANT

AND

KEEGAN QUARRIES LIMITED

RESPONDENT

[2016] IEHC 602

[2012/463MCA]

THE HIGH COURT

Environment & Planning – S. 160 of the Planning and Development Act 2000, as amended – Breach of the planning permission – Unauthorised development – Restoration and remediation of the land – Public interest – Screening assessment – Danger to environment

Facts: The applicant originally sought an order under s. 160(1)(a) of the Planning and Development Act 2000, as amended, requiring the respondent, its servants or agents to cease and abstain from carrying out and continuing unauthorised development on the concerned land. However, after the said development had been ceased, the applicant now sought restoration of the lands to their condition as they were before the commencement of the unauthorised development. The respondent argued that the Court could not exercise its discretion to grant the relief sought by the applicant as the there was delay on the part of the applicant in applying the relief.

Mr Justice White ordered the respondent and applicant to comply with the scheme of restoration and remediation as made by the Court without the requirement of the planning authority till the finalisation of granting relief under s. 160 of the 2000 Act as amended. The Court held that there was a matter of public interest in ensuring that those responsible for carrying out the development, in accordance with planning conditions as laid down by the planning authority, did not breach the conditions so as to put the environment in danger. The Court held that it had regard to the substantial breach of the planning conditions and failure of the planning authority to ensure compliance of the planning conditions. The Court held that though there was delay on the part of the applicant in bringing proceedings under s. 160 of the 2000 Act, yet the serious nature of the breaches did not warrant the refusal of the relief sought by the applicant. The Court, based on the experts' opinion, held that a report and screening assessment needed to be carried out to consider the environmental impact assessment, the impact on the environment of the existing conditions of the land and the need of future restoration.

JUDGMENT delivered by Mr Justice White on the 28th day of October, 2016

1 These proceedings arise from an originating notice of motion issued on 17th December, 2012, originally returnable for 28th January, 2013, seeking an order pursuant to the provisions of s. 160(1)(a) of the Planning and Development Act 2000, as amended, requiring the Respondent, its servants or agents to cease and/or refrain from carrying out or continuing unauthorised development on at or under lands located at Clegarrow and Rahinstown in the County of Meath and comprised in Folios 25123 and 12012F Land Registry Co. Meath in circumstances where:-

(i) no permission for quarrying development on certain of the said lands has been granted;

(ii) the appropriate period as respects the permission granted for quarrying development on certain other of the said lands has expired;

(iii) there are breaches of the water table by the Respondent;

(iv) there has been unauthorised removal of woodland;

(v) financial conditions have not been complied with;

(vi) no reinstatement has been carried out by the Respondent; and

(vii) the Respondent's quarrying activities constitutes an unauthorised development.

2 The Applicant also sought an order pursuant to the provisions of s. 160(1) (b) of the Planning and Development Act 2000, as amended, requiring the Respondent, its servants or agents to restore the lands to their condition prior to the commencement of the unauthorised development.

3 The quarrying operation has now ceased, the Respondent has surrendered the licence and is no longer in occupation of the lands.

4 While there are important historical connotations to other reliefs sought by the Applicant, what is now sought is a restoration of the lands to their condition prior to the commencement of the unauthorised development.

5 The hearing commenced on 14th July, 2015, when the court heard a preliminary issue arising from the death of the original Applicant, Jennifer Fowler on 12th March, 2013. By motion of 10th April, 2013, originally returnable for 29th April, 2013, an application was made pursuant to O. 15, r. 37 of the Rules of the Superior Courts to appoint Robert Henry Fowler as administrator ad litem of the estate of Jennifer Fowler for the purpose of prosecuting the proceedings before a full grant of probate had been extracted. This was granted by order of the High Court on 29th April 2013. The Respondent objected to the substantive hearing proceeding until a full grant had been extracted. The preliminary issue was heard on 14th, 15th, 21st and 30th July, and judgment was reserved.

6 Before the court gave judgment, the full grant of probate was extracted and the issue became moot.

7 The substantive s. 160 proceedings commenced on 24th November, 2015, and continued at intervals and concluded on 15th March, 2016 after fourteen days hearing when judgment was reserved.

8 The proceedings were heard on affidavit except that a number of witnesses who deposed affidavits were examined.

9 The matter came before Kearns P on 4th November, 2014, who directed on consent that the Respondent make an application for leave to apply for substitute consent in relation to the unauthorised development, the subject matter of the proceedings pursuant to s. 177C and/or 261A(18) of the Planning and Development Act 2000, as amended, within four weeks from the date of the order and to include in the application for substitute consent the extraction of sand and gravel from the lands after 2008 and extraction beyond the boundaries indicated in planning permission registration reference No. TA/ 20055 and extraction below the levels of the water table. The court further directed that in the event An Bord Pleanála refusing to grant leave to apply for substitute consent, the parties were to have leave to apply to the court to have the case relisted for hearing.

10 Subsequently, the Respondent made an application in writing on 8th December, 2014, to An Bord Pleanála requesting the Board to grant an extension of time for the substitute consent application to be made. By letter of 16th December 2014, An Bord Pleanála replied to the Respondent stating:-

'the Board granted an extended period to 31st July, in respect of making an application subsequent to which the planning authority was notified on 4th September, 2014, that no application had been made. In that no extension of time application was received within the extended period, the Board has no discretion to deal with the application contained in your letter of 8th December 2014. Your request therefore cannot be considered by the Board.'

11 The matter came back before the Court on 14th February, 2015, when the proceedings were re-entered for hearing and directions granted in respect of certain matters.

12 Subsequently, after the case was at hearing in this Court for four days on 24th, 25th, 26th and 27th November, 2015, the Respondent made an application on 3rd December, 2015, to refer the matter back to An Bord Pleanála for its consideration. This followed letters of 1st December, 2015, from the Respondent's solicitors to the Applicant's solicitor and from the Respondent's solicitors to An Bord Pleanála and a reply from An Bord Pleanála by email of 1st December, 2015, which indicated that the Board would consider an application for an extension of time in which to submit an application for substitute consent.

13 Following submissions on 3rd December, (transcript 5 pp. 61 – 68,) the court ruled it was not appropriate to refer the matter back to An Bord Pleanála and directed continuation of the hearing.

History of the Quarry

14 John Keegan, the managing director of the Respondent first became involved in a business relationship with John Fowler, the father of the present Applicant and spouse of the previous Applicant. Mr. Fowler Senior entered into a licence agreement with John Keegan on 29th March, 1996.

15 In consideration of the payments set out in the agreement the Licensee was granted an exclusive licence and full liberty to remove all such parts of the sand, gravel and stone under the licensed lands which were described on a map annexed to the agreement and outlined in red and were part of Folios 25123 and 12012F Co. Meath.

16 He undertook not to carry out operations in such a manner as to cause interference or annoyance to the Grantor or to any of the neighbours near or to adjoining the licensed lands provided always that normal operations of the lands as a sand and gravel quarry pit shall not constitute an interference or annoyance to the Grantor or his neighbours and that he would comply with all requirements of the Local Authority relating to the quarry on the licensed lands.

17 He also undertook at his own expense to apply to the relevant Local Authority for all necessary planning permissions in respect of the operation of the licence and at his own expense would comply with all requirements therein including financial requirements.

18 In the event of the Licensee with the consent of the Grantor entering into operations and removing sand and gravel from any lands, the property of the Grantor and not set out and delineated on the map annexed to the licence agreement, the terms and conditions of the agreement should apply in all respects as if the said lands formed part of the licensed lands and the lands should be deemed to be licensed lands.

19 The Licensee was given the option on serving three months notice to the Grantor to terminate the Agreement and on the...