Glancr‚ Teo. v Cafferkey (No. 2)
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 26 April 2004 |
| Neutral Citation | [2004] IEHC 71 |
| Court | High Court |
| Docket Number | [2002 No. 579 SP] |
| Date | 26 April 2004 |
[2004] IEHC 71
THE HIGH COURT
AND
AND
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5(2)
GALWAY CO COUNCIL V LACKAGH ROCK 1985 IR 120
BALKAN TOURS LTD V MIN COMMUNICATIONS 1988 ILRM 101
WASTE MANAGEMENT (PERMIT) REGS 1998 SI 165/1998 ART 5
WASTE MANAGEMENT (PERMIT) REGS 1998 SI 165/1998 ART 6
WASTE MANAGEMENT (PERMIT) REGS 1998 SI 165/1998 ART 7
WASTE MANAGEMENT ACT 1996 SCH III
WASTE MANAGEMENT ACT 1996 SCH IV
WASTE MANAGEMENT ACT 1996 SCH III CLASS 7
WASTE MANAGEMENT ACT 1996 SCH III CLASS 11
WASTE MANAGEMENT ACT 1996 SCH III CLASS 13
WASTE MANAGEMENT ACT 1996 SCH III CLASS 2
ENVIRONMENTAL PROTECTION AGENCY ACT 1992
WASTE MANAGEMENT ACT 1996 S54
PLANNING & DEVELOPMENT 2000 S257
PLANNING & DEVELOPMENT ACT 2000 S5
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 8
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 11(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 SCH II CLASS IV
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
PATTERSON V MURPHY 1978 ILRM 85
DUBLIN CO COUNCIL V SELLWOOD QUARRIES & ORS 1981 ILRM 23
MONAGHAN CO COUNCIL V BROGAN 1987 IR 333
EAST BARNET URBAN DISTRICT CO V BRITISH TRANSPORT COMMISSION 1962 2 QB 484
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(6)
READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974
MCMAHON V DUBLIN CORPORATION 1996 3 IR 509 1997 1 ILRM 227
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 9(1)(A)
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 CLASS 19
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 CLASS 20
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 9
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 11(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 PART CLASS 4
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 PART IV
Planning and environment - Material change of use - Appeal - Planning permission -Development - Exempted development -Waste permit - Whether the proposed change of use of a site by the plaintiff amounted to a material change of use and thus required planning permission.
Facts: The plaintiff, which was a company incorporated in the State was the owner and occupier of a site, premises and plant at Muinghmore, Geesala, County Mayo, at which pursuant to planning permission activities involving the drying of peat and the manufacture of fuel pellets and briquettes had been carried out. The plaintiff acquired the facility in late 2000 or early 2001. Subsequently, the plaintiff submitted a proposal to the notice party to recommission the facility and to operate it as a drying plant to thermally dry non-hazardous sewage sludge cake. By letter dated 16 February, 2001 the notice party advised the plaintiff that, based on legal advice, it was of the opinion that the new use of the plant did not constitute a material change of use requiring planning permission. Consequently the plaintiffs did not apply for planning permission for the proposed change. Accordingly, on 24 April, 2001 the plaintiff applied to the notice party for a waste permit under the Waste Management (Permit) Regulations, 1998 (S.I. No. 165 of 1998). The defendants who were either local residents or the owners of property within the vicinity of the facility contended that the proposed change of use of the site, premises and plant by the plaintiff was a material change of use and accordingly a development within the meaning of the Planning Acts, that required planning permission. On 27 September, 2001 a reference under section 5 (1) of the Local Government (Planning and Development) Act, 1963 as amended by the Local Government (Planning and Development) Act, 1976 was submitted by the defendants to An Bord Pleanala (The Board) in which the question for determination by the Board was whether the proposed change of use by the plaintiffs of the site, premises and plant was or was not development within the meaning of the Local Government (Planning and Development) Acts, 1963 to 2000. The notice party, Mayo County Council who was the local authority for the area in which the facility was situated, submitted that planning permission was not required, apparently taking the view that the proposed change of use did not constitute a material change of use and, further, that it was development which was exempted development under the Planning Acts. The Board issued a direction on 22 August, 2002 stating that the change of use constituted a material change of use, which was development and was not exempted development. Consequently, on 22 November 2002 the plaintiff initiated these proceedings by special summons by way of an appeal against the decision of the Board pursuant to section 5 (2) of the Act of 1963.
Section 5 of the Planning and Development Act, 2000 provided that if any question arose as to what, in any particular case, was or was not development or was or was not exempted development within the meaning of the Act of 2000, any person could request in writing from the relevant planning authority a declaration on that question. At the hearing of these proceedings, the plaintiff sought leave to adduce additional evidence of a request for a declaration pursuant to section 5 of the 2000 Act made by the plaintiff to the notice party in December, 2002 and the response of the notice party thereto. It was urged that adducing such evidence was necessary in the interests of justice. The defendants objected to the evidence being admitted and contended that the application should fail in limine.
Held by Laffoy J in refusing the relief sought and upholding the decision of the Board on the reference: 1. That evidence of a request for a declaration by the plaintiff to the notice party pursuant to section 5 of the 2000 Act subsequent to the decision of the Board was neither necessary nor desirable in the context of the determination of the appeal and accordingly such additional evidence was not admitted.
2. That a reference under section 5 of the 1963 Act was not concerned with the issue of whether or not planning permission should ultimately be granted for the proposal, it was confined to the narrow issue of whether an application for planning permission must, as a matter of law, be made.
3. That in order to determine whether the activity proposed under the waste permit application amounted to a material change of use it was necessary to compare the proposed use with the activity permitted under the existing planning permissions. The most recent use of the facility for industrial purposes prior to its acquisition by the plaintiff was by Norsk for a drying and manufacturing process to produce fuel pellets and briquettes pursuant to permissions P. 96/1188 and P. 97/585.
4. That as a matter of construction of the three planning permissions, the purposes for which the buildings and structures on the facility could be used were specified in the planning permissions. It was quite clear from planning permission P.85/84, when read in conjunction with the planning application and the documents which accompanied the application and considered objectively, that the purposes for which all the buildings, structures and plant on the site might be used were specified - for the purpose of drying peat and the manufacture of fuel. In any event, even if that conclusion was incorrect, the application of the second limb of section 28(6) of the Act of 1963 had the same effect: the buildings, structures and plant as reconstructed, extended, modified and configured from 1985 onwards were clearly designed, that is to say intended, for the purpose of drying peat and manufacturing fuel therefrom.
5. That the Board's inspector was correct in his conclusion that the proposed use constituted a material change of use. The former use by Norsk under the existing planning permissions and the proposed use by the plaintiff under the waste permit gave rise to materially different considerations for the planning authority in determining what did, or did not, accord with the proper planning and development of the area in which the facility was located.
6. That once it had been established that the two activities were materially different in planning terms, it was for the planning authority to assess the risk of the activity in terms of environmental impact and to decide whether permission should be granted or refused and, if granted, on what terms. Even if the proposed activity was the subject of a waste permit, that would not preclude the planning authority from regulating waste recovery and disposal activities by way of planning permission.
7. That the exempted development provision contained in Articles 8 to 11 of the 1994 Regulations did not apply to the proposed activity because the development would be inconsistent with the use specified under the existing permission and also because the proposed change of use did not come within any of the classes of use specified in Part IV of the Second Schedule.
Reporter: L.O'S.
Miss Justice Laffoy delivered on 26th April, 2004.
As it governs these proceedings, s. 5(1) of the Local Government (Planning and Development) Act, 1963(the Act of 1963), as amended by the Local Government (Planning and Development) Act, 1976...
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Narconon Trust v an Bord Pleanála
...Simons on Planning Law (3rd ed; 2021), chapter 2. The decision of the High Court (Laffoy J) in Glancre Teoranta v Cafferkey (No 2) [2004] IEHC 71, [2004] 4 IR 22 – itself an appeal from a decision made by ABP on a section 5 reference 1 – provides an illustration of the complexities that may......