Glencar Explorations Plc v Mayo County Council

• Jurisdiction: Ireland
• Judge: BLAYNEY J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1993 WJSC-HC 568
• Docket Number: [1992 No. 149 JR]
• Court: High Court
• Date: 01 January 1993

GLENCAR EXPLORATIONS PLC v. MAYO CO COUNCIL

BETWEEN/

GLENCAR EXPLORATIONS PLC AND ANDAMAN RESOURCES PLC

Applicants

AND

THE COUNTY COUNCIL OF THE COUNTY OF MAYO

Respondent

1993 WJSC-HC 568

149 JR/1992

THE HIGH COURT

Synopsis:

PLANNING

Planning authority

Plan - Contents - Validity - Challenge - Mining - Prohibition - Development objectives - Severance of plan - Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65), 3rd schedule, article 10 - Local Government (Planning and Development) Act, 1963, ss. 3, 4 19, 22 - (1992/149 JR - Blayney J. - 14/11/92) - [1993] 2 I.R. 237

|Glencar Explorations Plc. v. Mayo County Council|

WORDS AND PHRASES

"Development objectives"

Plan - Amendment - Planning authority - Powers - Exercise - Mining - Prohibition - Amendment ~ultra vires~ planning authority - (1992/149 JR - Blayney J. - 14/11/92) - [1993] 2 I.R. 237

|Glencar Explorations Plc. v. Mayo County Council|

Citations:

EEC DIR 85/337

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

MINERALS ACT 1940

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S20(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(7)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(2)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 10(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART II

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 11(1)(a) (vii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 11(1)(b) (iii)

LOCAL GOVT ACT 1991 S7

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHED III

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHED I

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHED III PART III

1 JUDGMENT delivered on the 13th day of November 1992 by BLAYNEY J.

2 In this application for judicial review, the applicants seek a number of different reliefs. But they all relate to the same matter - the inclusion of what has come to be known as a mining ban in the County Mayo development plan which was adopted by the respondent (to which I shall hereinafter refer as the County Council) on the 17th February, 1992. It is to be found under the heading "Policy" in paragraph 3.6.1 of the development plan, the paragraph entitled "Mineral Extraction", and is in the following terms:-

"It is the policy of the Council that no development and/or works shall take place in relation to minerals (as defined by the Minerals Act, 1940, as amended) in the areas shown dotted on Map 10A."

3 The areas so identified on the map comprise the Westport electoral area and cover 300 square miles, about one seventh of the total area of the County of Mayo.

4 The main reliefs sought by the applicants are firstly, a declaration that the inclusion of the mining ban in the development plan was ultra vires the County Council and secondly, an order of certiorari quashing it. Having regard to the conclusion I have come to in regard to these two claims, it is not necessary to refer to any of the other reliefs claimed. And in order to adjudicate on the two claims it is necessary to start by setting out the factual context in which the case arises.

5 The applicants are respectively a public company registered in Dublin and a public company registered in Belfast. Their business is the prospecting for and the mining of ores and minerals. In or about the month of June, 1986 the applicants were granted by the Minister for Energy ten prospecting licences for the purposes of the exploration for gold in townlands south of Westport in the County of Mayo. The licences were renewed for a further two years in October 1988, and since 1990 have been renewed annually, the last renewal being for a period of one year up to the 25th June, 1993. The areas covered by the licences are all included in the areas affected by the mining ban in the development plan.

6 Since 1986 the applicants have spent in excess of £1.5 million on their exploration programme in the areas authorised by their licences. As a result of their exploration, the applicants are now convinced that gold in commercial quantities is likely to be found but further costly exploration and analysis would have to be undertaken. In order to fund this additional stage, the applicants had negotiations with Newcrest Mining Limited, the largest specialist gold mining company in Australia, which resulted in the latter agreeing to enter into a joint venture with the applicants in which they would invest £1.6 million. In February, 1992 however, Newcrest pulled out of the joint venture because of the mining ban having been included in the county development plan.

7 The development plan which had immediately preceded the 1992 development plan, and which had been adopted in 1984, did not contain any mining ban. Nor did the 1992 development plan as first published in 1990 which, having been approved by the County Council was put on public display between the 2nd April, 1990 and the 31st July, 1990. Paragraph 3.6.1 of the draft plan, which is the paragraph which dealt with mineral extraction, was in the following terms:-

"It is clear that there are large potential mineral resources within the county from the scale of exploration currently under way. Development of these resources will have major implications for the environment, water resources, aquaculture, tourism and employment."

POLICY

8 It is the policy of the Council that where mining and quarrying developments would seriously injure the visual environment, water resources, aquaculture, tourism, sites of archaeological, geological, historical, religious or scientific interest, the development shall not be permitted.

9 It is the policy of the Council that, as part of any planning application for the large scale extraction of minerals an environmental impact assessment under E.C. Directive 85/337/EC and SI 349 of the 1989 European Communities (Environmental Impact Assessment) Regulations, 1989 shall be required by the Mayo County Council.

OBJECTIVES

10 It is an objective of the Council to ensure, through control of mineral extraction developments that the physical environment flora and fauna is reinstated, on a phased basis, and with land farms and vegetation in keeping with the natural environment.

11 It is an objective of the Council to ensure that all forms of discharges from mineral extraction shall be strictly controlled and monitored and that any breaches of such controls be prosecuted in accordance with the appropriate legislation.

12 It is an objective of the Council to ensure that adequate environmental safeguards are enforced to minimise disturbance and nuisance during operations.

13 It is an objective of the Council that features of archaeological interest are protected and preserved and if this is not possible that they be properly surveyed and recorded."

14 The ban was introduced as an amendment to this paragraph to be inserted between the two sub-paragraphs in the policy section by a motion passed at a meeting of the County Council held on the 11th March, 1991. The development plan incorporating the amendment was then put on public display from the 2nd April, 1991 to the 6th May, 1991. On the 2nd May, 1991 the applicants wrote to the County Council objecting strongly to the amendment being included in the development plan.

15 At their meeting on the 11th November, 1991 the members of the County Council considered the written representations received in relation to the amendment but decided nonetheless to include it in the development plan. The county secretary thereupon informed the members of the County Council that the county development plan as amended would be before them for their formal ratification at their December meeting. At that meeting, however, which was held on the 16th December, 1991, it was resolved to defer the ratification in order to give the members of the County Council an opportunity of considering a letter dated the same date received from the Department of Energy. The main substance of that letter was in the following terms:-

"16th December, 1991 to Mr. D. Mahon, County Manager, Mayo County Council, Aras an Chontae, The Green, Castlebar, Co. Mayo."

16 Dear Mr. Mahon

17 I understand that the Mayo County Council has decided to include the following policy statement in its latest draft development plan:-

"It is the policy of the Council that no development and/or works shall take place in relation to minerals (as defined by the Minerals Act, 1940 as amended) in the areas shown dotted on Map 10A".

18 The Minister for Energy has responsibility for government policy in relation to minerals, exploration and development. I am directed by the Minister to state that he views with grave concern the draft policy statement in relation to minerals development in parts of County Mayo. The statement runs contrary to stated government policy that mineral resources should be explored for and should be exploited where this can be done in an environmentally acceptable manner. The statement, which implies that planning permission will be automatically refused to any mining project means that there will, in fact, be no exploration investment whatsoever....

19 The Minister is of the view that there is in principle nothing fundamentally wrong with the existing planning procedures and that it should be possible to accommodate the needs of both the mining industry and those concerned with the environment within the current legal and procedural...