Galway County Council v Lackagh Rock Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 22 May 1985
• Neutral Citation: 1985 WJSC-HC 1197
• Docket Number: [1984 No. 21 MCA],No. 21MCA/1984
• Court: High Court
• Date: 22 May 1985

1985 WJSC-HC 1197

No. 21MCA/1984

GALWAY CO, COUNCIL v. LACKAGH ROCK LTD

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACT 1976

IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL

OF THE COUNTY OF GALWAY

BETWEEN/

THE COUNTY COUNCIL OF THE COUNTY OF GALWAY

APPLICANTS

AND

LACKAGH ROCK LIMITED

RESPONDENT

Citations:

BRAZIL (CONCRETE) LTD V AMERSHAM RDC 18 P&CR 396

BROOKS & BURTON LTD V ENVIRONMENT SECRETARY 1977 1 WLR 1294

DUBLIN CO COUNCIL V SELLWOOD QUARRIES LTD 1981 ILRM 23

DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD UNREP SUPREME 17.05.83 1983/2/351

GUILDFORD RURAL DISTRICT COUNCIL V FORTESCUE 1959 2 QB 112, 1959 2 WLR 643

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(2)

PATTERSON V MURPHY UNREP COSTELLO 04.05.78 1978/10

Synopsis:

LOCAL GOVERNMENT

Planning

Use - Change - Absence of permission - Land used as quarry before the appointed day - Use as quarry by respondents after that date - Allegation that current use more intensive than original use - Whether any material change of use - Test applicable - Held in negative - (1984 No. 21 MCA - Barron J. - 22/5/85).

Galway C.C. v. Lackagh Rock

1 Judgment of Mr. Justice Barrondelivered on the 22nd day May of 1985

2 This application relates to a limestone quarry known as Angliham Quarry being operated by the Respondent at Menlough County Galway. It is common case that no permission for its development has been granted under the Local Government (Planning and Development) Act 1963. The sole issue raised is whether the current use of the quarry is a material change of use from its use on the 1st October 1964 ("the appointed day").

3 A number of affidavits have been sworn and filed on behalf of the parties and in addition further oral evidence was given at the hearing of this matter. The facts as they appear from these affidavits and from the oral evidence are as follows.

4 The quarry was leased by the County Council from in or about the year 1950 to the year 1973. The Respondent first leased the quarry in December 1976 for a five year period and on the expiry of this term renewed its lease of the premises for a term of twenty-five years from the 4th August 1982. There is no direct evidence as to who operated the quarry between1973 and 1976. Nevertheless, it appears to have been operated during that period as a quarry and I accept the evidence of Michael Moloney that he worked in the quarry during that period.

5 The evidence shows that during the period that the County Council operated the quarry the quantities of stone extracted varied with the extent of the needs of the County Council. On average ten to twelve six ton lorry loads were taken from the quarry daily. From 1963 up to sometime in the year 1966 when the promenade at Salthill was being constructed the quantity of stone being taken from the quarry reached a maximum of 144 such loads a day. The County Council extracted rock essentially by manual operation, the rock having been loosened by blasting. I accept the evidence of Brendan Noonan to this effect. Having blasted a volume of rock, such loosened rock was then cut out by sledge-hammer and crow-bar. On occasion a mechanical loader was in use. During the period 1950 to 1956 stone crushing took place in the quarry. The County Council operated a primary crusher and a secondary crusher, each with a capacity of between nine to twelve tons per hour, both of which were driven by a tractor. This crushing operation ceased in or about the year 1956 after which such operations were carried out by the Applicant at a different quarry which it also operated. The only structures erected on the quarry during this period were two huts used to store tools and the like.

6 There is no evidence as to the manner in which the quarry was used between the years 1973 and 1976. However, no case was made that use as a stone quarry had been abandoned during that period or any other period. It is reasonable on the Respondent's evidence to suppose that there was little or no change from the manner in which the quarry had beenoperated by the Applicant.

7 When the Respondent took over the quarry there was no plant or machinery on site. They brought on site a mobile primary crusher which they replaced in 1979. There has been a continuous build-up of plant and machinery since then together with the erection of ancillary buildings. At present they have on site a primary crusher with a capacity of 246 to 305 tons an hour, a secondary crusher with a capacity of seventy-one to eighty-nine tons an hour, two tertiary crushers, one with a capacity of twenty to thirty tons per hour and the other with a capacity of eight to fifteen tons per hour. These crushers are supplied with electric power by three diesel generators which are used to drive also two vibrating screens and eight to ten conveyor belts. There is also on site a mobile international power screen feeding a stationary washing plant. The structures on site have been increased and there is now on site an office, a weigh-bridge, a canteen, oil storage tanks, a garage cum work-shop, a generator room, loading bays, and a ground limestone storage shed.

8 The Respondent started with approximately six employees and now employs fourteen persons. When the County Council operated the quarry the evidence indicates that up to ten employees were engaged at the quarry and when the promenade at Salthill was being constructed that up to double that number were so employed. The affidavits filed on behalf of the Respondent suggested that the amount of stone being quarried by the Respondent reached a peak of 4,000 tons a day. In the course of the oral evidence adduced it became obvious that the maximum stone produced never exceeded 1,000 tons a day and that at present the rate is little more than half that.

9 The first objection by the Applicant to the Respondent operating the quarry in the absence of planning permission was made in March 1977 when the Applicant indicated that it would refer the question of the need for a planning permission under Section 5 of the Local Government (Planning and Development) Act as amended by Section 14 (2) of the Local Government (Planning and Development) Act 1976. No such reference was made because as it appears from an affidavit filed on behalf of the Applicant Counsel instructed on behalf of the Applicant advised that no such permission was required. In 1979 the Respondent appears to have been supplying the Applicant with crushed stone but was uncertain as to whether or not a tender furnished by it to the Applicant was being accepted. Accordingly, a letter was written dated the 9th February 1979 to the County Manager which was asfollows:-

"Re: Supply of Crushed Stone to Galway County Council

Dear Sir,

We refer to our call to your office last week when you were not in a position to see us as you were engaged. The purpose of our visit was to ascertain our position regarding the supply of crushed stone to Galway County Council, as we understand our tender for crushed stone is the lowest, and as you have bought stone from us, we cannot understand how this has been discontinued.

Please let us hear from you in this regard and if you would like us to call to your office to discuss the...