Frank Harrington Ltd v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 428
• Court: High Court
• Date: 23 November 2010

[2010] IEHC 428

THE HIGH COURT

[No. 1020 J.R./2008]

Frank Harrington Ltd v Bord Pleanála

JUDICIAL REVIEW

BETWEEN

FRANK HARRINGTON LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

MAYO COUNTY COUNCIL AND JAMES LEONARD

NOTICE PARTIES

LOCAL GOVT (PLANNING AND DEVELOPMENT) ACT 1963

PLANNING AND DEVELOPMENT ACT 2000 S261

PLANNING AND DEVELOPMENT ACT 2000 S137

PLANNING AND DEVELOPMENT REGS 2001 SI 600/2001

PLANNING AND DEVELOPMENT ACT 2000 S4(1)(H)

PLANNING AND DEVELOPMENT REGS 2001 SI 600/2001 CLASS 21

PLANNING AND DEVELOPMENT ACT 2000 S34(2)

MCDOWELL & BRENNAN v ROSCOMMON CO COUNCIL UNREP FINNEGAN 21.12.2004 2004/34/7820 2004 IEHC 396

PLANNING AND DEVELOPMENT ACT 2000 S42

PLANNING AND DEVELOPMENT ACT 2000 S261(6)

PLANNING AND DEVELOPMENT ACT 2000 S34(2)(A)(vi)

PLANNING AND DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(viii)

QUINLAN v BORD PLEANALA & DUBLIN CITY COUNCIL UNREP DUNNE 13.5.2009 2009 IEHC 228

WESTWOOD CLUB LTD v BORD PLEANALA UNREP HEDIGAN 26.1.2010 2010 IEHC 16

PLANNING AND DEVELOPMENT ACT 2000 S5

O'KEEFFE v BORD PLEANALA 1993 1 IR 3

KEEGAN & STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

R v CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

PLANNING AND DEVELOPMENT ACT 2000 S146

COMMISSION v IRELAND C-215/06 ECJ

EEC DIR 85/337

HENRY DENNY & SONS (IRELAND) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

DE BLACAM JUDICIAL REVIEW 2ED

PLANNING AND DEVELOPMENT ACT 2000 S2

PLANNING AND DEVELOPMENT ACT 2000 S261(1)

EVANS v BORD PLEANALA UNREP KEARNS 7.11.2003 2004/18/4037

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Retention planning permission - Quarry - Exemption - Whether quarry unauthorised - When quarrying first commenced - Whether quarry benefited from exemption - Whether determination of an Bord Pleanála ultra vires - Rational - Fairness - Audi alteram partem - Relevance of planning status of quarry - Test for irrationality - Failure to have regard to registration of quarry - Council's determination of pre-1964 status - Reasons - Whether Board obliged to take into account legal status of underlying development - Whether fact quarry registered determination that quarry had pre 1964 user - State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Meadows v Minister for Justice [2010] IESC 3, (Unrep, SC, 21/1/2010); Quinlan v Bord Pleanala [2009] IEHC 228, (Unrep, Dunne J, 13/5/2009) and Westwood Club Ltd v An Bord Pleanála [2010] IEHC 16, (Unrep, Hedigan J, 26/1/2010) applied - R v Chief Constable of North Wales XP Evans [1982] I WLR 1155; Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34; Commission v Ireland (Case C-215/06) [2008] ECR 4911; Evans v An Board Pleanala (Unrep, Kearns J, 7/11/2003) and McDowell v Roscommon County Council [2004] IEHC 396, (Unrep, Finnegan P, 21/12/2004) considered - Planning and Development Act 2000 (No 3), ss 4(1)(h), 34(2), 137, 146 and 261- Planning and Development Regulations 2001 (SI 600/2001), art 9 - Judicial review refused (2008/1020JR - Hedigan J - 23/11/2010) [2010] IEHC 428

Frank Harrington Ltd v An Bord Pleanála

Facts: The respondent had refused planning permission for the retention of replacement crushing, screening and washing plant and two ESB substations within the existing sand and gravel pit of the applicant. The Board considered that the quarry had commenced operation after 1 October 1964 and was therefore unauthorised. The Board concluded that it would be inappropriate to grant the retention permission sought as to do so would facilitate the continuation of an unauthorised development on the site. The applicant claimed inter alia that quarrying had taken place prior to 1964 and had benefitted from a quarrying exemption. The applicant alleged that the Board had failed to take account of the quarry's registration under the Planning and Development Act 2000. The applicant claimed that the respondent had no jurisdiction to issue notices pursuant to s. 137 of the Act of 2000 to the parties. The applicant complained that the Board had failed to give reasons for its decision and had erred in law in considering whether the quarry within which the development was located was itself an unauthorised development.

Held by Hedigan J. that decision made was clearly within the Board's planning expertise. The Board had not erred in law in issuing the s. 137 notices. The applicant complained that the Board had to have requested a report from the inspector but nothing in the Act required the Board to instruct the inspector to report on the s. 137 responses. As to the failure to give reasons alleged by the plaintiff, the Board had identified that the quarry was unauthorised and that it would be inappropriate to grant retention permission. The Court was satisfied that he applicant was not entitled to the relief sought and the application would be refused.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan delivered the 23rd day of November 2010.

Application

2 1. In these proceedings instituted on 3 ^rd September, 2008, the applicant seeks leave to apply for an order of certiorari, by way of judicial review, quashing the decision of the respondent (the Board), dated 11 ^th July, 2008. The court has directed that a telescoped hearing be heard. As such, both the leave and substantive application are before the court. On 11 ^th July, 2008, the respondent refused planning permission for the retention of replacement crushing, screening and washing plant and two ESB substations within the applicant's existing sand and gravel pit ("the quarry") within the functional area of the first-named notice party ("the council"). The Board considered that the quarry had commenced operation after 1 ^st October, 1964, and was therefore unauthorised. The Board concluded that it would be inappropriate to grant the retention permission sought as to do so would facilitate the continuation of an unauthorised development on the site.

Parties

3 2. The applicant is a limited liability company having its registered offices at Kilkelly, County Mayo and is in business as the operator of a quarry at Stripe, Barnalyra, Barnacahoge, County Mayo. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts 2000 to 2006. The first named notice party is the county council with responsibility for the administrative area of County Mayo. One of its functions is the control, registration and decision-making for new developments, in particular, through granting or refusing applications for planning permission. The second named notice party is a local resident from Killaturley, Swinford Co. Mayo who made objections against the quarry to the first named notice party and to An Taisce in 2005.

Factual Background

4 3. The applicant has operated a large sand and gravel operation on it's landholding at Stripe, Barnalyra and Barnacahoge in County Mayo for many years. The landholding covers an area of approximately 147 hectares. There is a dispute between the parties as to when quarrying first commenced. The applicant states that the quarry operated in the 1950's and 1960's and was used to supply sand and gravel to Mayo County Council. The Director of the applicant company Mr. Frank Harrington has also averred that he personally worked these lands with his Father in 1963.The applicant's position is that because the use had commenced well before the coming into force of the Local Government (Planning and Development) Act 1963, the quarry benefits from an exemption from planning.

5 The respondent concluded that quarrying in fact commenced post 1964 and therefore the quarry does not benefit from an exemption from planning. This conclusion is based on a number of factors including the fact that when the applicant made an initial application to register the quarry pursuant to s. 261 of the Planning and Development Act 2000, it stated that quarrying commenced on the site on or about May 1984. The conclusion is also supported by the fact that the respondent received responses to a s. 137 request from An Taisce and the first and second named notice parties which indicated that the quarry did not have pre 1964 status.

6 This case arises out of works carried out within the existing sand and gravel pit. The applicant constructed replacement crushing, screening and washing plant and two numbered ESB substations. An application was made on 19 ^th January, 2007, to Mayo County Council for the retention of these works. On 9 ^th March, 2007, retention permission was granted (subject to conditions). This decision was appealed to An Bord Pleanála by Mr. Peter Sweetman on behalf of the second named notice party. An Bord Pleanála's Inspector recommended that planning permission be granted to the applicant on 14 ^th August, 2007. The Board however decided not to accept this recommendation and refused retention for the plant on 11 ^th July, 2008. These proceedings arise from this decision.

Relief Sought

7 4. The applicant seeks leave to challenge the respondent's decision on a number of ground's that can be characterised as follows:

8 a A. The Board erred in law in considering whether the quarry within which the development was located was itself an unauthorised development.

9 b B. There was no evidence before the Board to support its view that the quarry was an unauthorised development.

10 c C. The Board failed to have regard to the Council's registration of the quarry or the Council's "determination" that the development had commenced before 1 October 1964.

11 d D. Section...