Grall v Meath County Council and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 31 July 2024
• Neutral Citation: [2024] IEHC 552
• Court: High Court
• Docket Number: [2013 No. 783 JR]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Thomas Grall

Applicant

and

Meath County Council

and

An Bord Pleanála

and

Ireland and The Attorney General

Respondents

[2024] IEHC 552

[2013 No. 783 JR]

THE HIGH COURT

Order of certiorari – Constitutionality – Planning and Development Act 2000 s. 261A – Appellant seeking orders of certiorari quashing decisions of the respondents – Whether s. 261A(4(a)) of the Planning and Development Act 2000 is unconstitutional

Facts: The applicant, Mr Grall, came to the High Court seeking the following reliefs: (1) an order of certiorari quashing the decision of the first respondent, Meath County Council, purportedly made pursuant to s. 261A of the Planning and Development Act 2000 (PADA), which decision was made pursuant to s. 261A(4(a)) PADA on 26th July 2012; (2) an order of certiorari quashing the decision of the second respondent, An Bord Pleanála, to confirm the decision of Meath County Council, which decision was made on 5th September 2013; (3) a stay on the said determination and/or an order of prohibition preventing the service of an enforcement notice pursuant to s. 154 PADA; (4) a declaration that the provisions of s. 261A(4(a)) PADA are unconstitutional; (5) a declaration that s. 157(aa) and (ab) PADA as inserted by the Environment (Miscellaneous Provisions) Act 2011 are unconstitutional; and (6) certain further reliefs.

Held by Barrett J that he was bound by McGrath Limestone Works Ltd v An Bord Pleanála [2014] IEHC 382, JJ Flood & Sons Ltd v An Bord Pleanála [2020] IEHC 195 and Fursey Maguire t/a Frank Pratt & Sons v Meath County Council [2022] IEHC 707, decisions which rejected Mr Grall’s point that having concluded in the s. 261 process that the quarry was a pre-1963 quarry the Council was precluded from reaching a contrary conclusion in the s. 261A process. Barrett J noted that the Council had proceeded by reference to aerial photography and Mr Grall sought a review of the Council’s decision by the Board. Barrett J did not see how such a review could have proceeded without the Board having regard to the aerial photography, and he did not see how Mr Grall could have believed otherwise. Regarding Mr Grall’s complaint that if the Board had a concern then it should have sought further information or given an opportunity to Mr Grall to make more submissions, Barrett J noted that a like position to that canvassed before him by Mr Grall was rejected in Fursey Maguire, McMonagle Stone v An Bord Pleanála [2023] IEHC 223, McGrath Limestone, and JJ Flood. Barrett J believed that he was required by precedent to hold as the judges in those cases held in that regard. He held that the Board’s decision seemed clear and comprehensible and in conformity with the type of reasoning to which the Supreme Court gave its approval in Connelly v An Bord Pleanála [2021] 2 I.R. 75. He held that it was not open to Mr Grall to impugn the Board’s decision by reference to material that never went before the Board, citing Hennessy v An Bord Pleanála [2018] IEHC 678, Halpin v An Bord Pleanála [2019] IEHC 352, and Ballyboden Tidy Towns Group v An Bord Pleanála [2021] IEHC 648. Barrett J noted that in McGrath Limestone Works Ltd v An Bord Pleanála [2014] IEHC 382, Charleton J indicated that the enactment of s. 261A was necessitated by Ireland’s membership of the European Union. Accepting that point, Barrett J found that the protection of Article 29.4.6° of Bunreacht na hÉireann extends to s. 261A and Mr Grall’s contention that the issuance of an enforcement notice is contrary to natural justice must fail. Barrett J did not see that the manner in which the constitutional issues had been pleaded accorded with O. 84, r. 20(3) RSC; it also flew in the face of the specificity and particularity that McDonald J canvassed for in Sweetman v An Bord Pleanála [2020] IEHC 39.

Barrett J refused all of the reliefs sought by Mr Grall.

Appeal dismissed.

Summary

In this judgment I explain why I will not grant any of the reliefs sought in respect of and/or consequent upon an impugned s.261A PADA process.

JUDGMENT ofMr Justice Max Barrettdelivered on 31 ^st July 2024.

Background

1 . Mr Grall owns lands at Milltown, Co Meath. Those lands are operated partly as a quarry for the extraction of sand and gravel. This quarrying, Mr Grall claims, commenced on or before 1.10.1964.

2 . Pursuant to s.261 of the Planning and Development Act 2000 (PADA), Mr Grall registered his quarry with Meath County Council. As part of that process, Meath County Council imposed 22 conditions as regards the continued operation of the quarry. Mr Grall was not happy with the requirement that he pay a €30k financial contribution and successfully appealed this requirement to An Bord Pleanála.

3 . Pursuant to s.261A PADA, Meath County Council came to consider the status of the quarry afresh. On the basis of the evidence before it Meath County Council (including a submission from Mr Grall) the Council determined pursuant to s.261A(4) PADA that the proposed development was not in fact a pre-1.10.1964 development. That evidence included an aerial photograph which appears to show the present quarry site as unworked, though I am given to understand from the hearings before me that it is typical for a quarry such as that operated by Mr Grall to go through periods in which it is unworked, during which period the site becomes overgrown (and hence would seem to be like any other piece of land in an aerial photograph).

4 . In reaching its decision, the Council did not have before it a letter from Mr Grall's late uncle indicating that he remembered withdrawing material from the quarry in the 1940s. Nor did the Council have before it a journal that Mr Grall has since found in which he recorded quarry orders from 1966 – so post-1964 but I suspect that it would have been construed (had it been presented) as bolstering his case that the quarry was a site of activity in the 1960s, not least as Mr Grall hardly started out with a full book of orders immediately in 1966.

5 . Mr Grall makes a number of criticisms of how matters proceeded against him in the s.261A proceedings. He maintains that:

• – it was not open to Meath County Council to reach the decision it reached in the s.261A proceedings following the decision it reached in the s.261 proceedings.

• – he expended considerable resources to comply with the conditions imposed upon him pursuant to s.261 and considers that he had a legitimate expectation that the Council would reach the same decision in the s.261A context that it reached in the s.261 context.

• – the s.261 authorisation constitutes a development consent for the purposes of the EIA directive and having permitted a development thereunder the Council cannot now decide that what presents is unauthorised development.

• – Meath County Council had no additional evidence before it in the s.261A context that was not before it in the s.261 context which would justify it in reaching the decision it reached in the s.261A context.

• – it is not clear why the Council decided as it did in the s.261A context; and, on a related note, inadequate reasons were provided.

• – (i) it was not open to the Council to reach a decision that the quarry would have a likely particular effect on the environment when such an effect would already have occurred and been identified, (ii) he has not had the opportunity to address the Council in this regard. (iii) the Council made no such decision as to likely effect in the s.261 context.

• – the decision as to whether or not an EIA was merited ought to have been made in the s.261 context.

• – the belated determination by Meath County Council as to there not having been pre-1.10.1964 user has significantly prejudiced Mr Grall's ability to demonstrate that there was pre-1.10.1964 user (in circumstances where (i) a number of the operators and users of the quarry had died or were infirm or otherwise unavailable, (ii) pertinent evidence had been lost or destroyed).

• – he has in effect been denied the ability to apply for planning permission (including retention permission) and is now likely to be served with the prospects of an enforcement notice and prosecution.

6 . One would almost imagine from the just-recited series of complaints that the gravamen of Mr Grall's complaints lies against the Council. However, the decision that stands properly impugned in these proceedings is not a decision of the Council but a decision that subsequently issued from An Bord Pleanála after Mr Grall brought a review of the County Council's decision to An Bord Pleanála. (That later decision is the correct target of the within proceedings is clear from Fursey Maguire t/a Frank Pratt & Sons v. Meath County Council[2022] IEHC 707 and McMonagle Stone v. An Bord Pleanála[2023] IEHC 223).

7 . In the statement grounding the judicial review application the following points are made regarding the review undertaken by An Bord Pleanála and as regards certain constitutional infirmities that Mr Grall perceives to present in the process/es to which he has been subjected and the situation in which he now finds himself placed:

‘(24) The Board appointed an Inspector…to report on the review. The said Inspector considered an aerial photograph of the site [from]…1973. Upon inspecting this photograph, the Inspector formed the view that the 1973 aerial photograph shows no quarrying activity being undertaken at that time. The Applicant had submitted a sworn statement of Mr Bernard Grall, an uncle of the Applicant which stated that he recalled extraction having been carried out on the site pre-1964.

(25) The within quarry development is a sand and gravel quarry and during the periods of inactivity or low activity, the quarry quickly grows over with grass and shrubs. This can clearly be seen on the aerial photographs of the site before An Bord Pleanála...