Hehir v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 23 February 2016 |
| Neutral Citation | [2016] IEHC 104 |
| Docket Number | [2012 No. 871 J.R.] |
| Court | High Court |
| Date | 23 February 2016 |
[2016] IEHC 104
THE HIGH COURT
JUDICIAL REVIEW
Baker J.
[2012 No. 871 J.R.]
Local government – Planning & Development – The Planning and Development Act 2000 – Planning permission y Relevant factors – Comparative analysis
Facts: The applicants had filed two judicial review proceedings seeking orders for quashing the decision of the respondent for giving planning permission to the notice party for continuation of quarrying activities at the concerned site. The only issue that needed to be determined in the present proceedings was whether the findings of the respondent that pre-1964 use at the site had been established, was correct as the said issue was fixed by the High Court upon hearing the application of the applicant for grant of planning injunction, which was adjourned by High Court pending the determination of present proceedings.
Ms. Justice Baker held that the respondent did not determine the nature of the pre-1964 use and compare it to the present use to ascertain whether that use could be called a continuation of an established use. The Court held that the respondent must engage in comparative analysis of the original baseline activity and the current activity by taking into account various factors such as change in extraction rate, the history of land acquisition, nature of extraction activity, employment, infrastructure, variation in scale of operation, extraction methods, and depth. The Court found that the though the respondent was in possession of certain material comprising maps, pre-1964 newspaper clippings, planning permissions yet it did not carry out a comparative analysis so as to show whether there was a material intensification or merely a continuation of an existing activity.
Three sets of proceedings have been instituted by the applicant, two for judicial review, and the third for a planning injunction under s. 160 of the Planning and Development Act 2000, as amended (the ‘Act of 2000’). In the judicial reviews the applicant seeks to quash the decision of An Bord Pleanála (the ‘Board’) made on the 23rd August, 2012, by which the Board granted planning permission to the notice party (‘Whelans’) for the continuation of quarrying activities at Fountain Cross, Ennis, Co. Clare (‘the Quarry’). The activities in respect of which permission was granted include the excavation and processing of limestone and aggregates, landscaping works and certain restoration and other associated works at the location.
The s. 160 proceedings stand adjourned pending the determination of these two judicial reviews which have been the subject of a case management order made by O'Malley J. on 14th March, 2014, who ordered the trial of a single modular issue as follows:-
‘Whether the Bord was correct in determining that the quarry, the subject matter of the appeal to the Bord (Ref PL03.229040) commenced operation prior to 1st October, 1964 within the meaning of s. 261 of the Planning and Development Act 2000.’
The application for planning permission arose in the special statutory context created by s. 261 of the Act of 2000 and these special provisions relating to quarries have been much litigated, as will be apparent from the number of judgments mentioned in my analysis.
Section 261 of the Act became effective on 28th April, 2004 and provided for the compulsory registration by local authorities of all quarries within their functional area. It is now well established that as a matter of law registration in itself does not confer a planning status on quarrying activity, and the fact of registration neither makes a quarry user authorised nor unauthorised: per Charleton J. in McGrath Limestone Works Ltd. v. An Bord Pleanála & Ors. [2014] IEHC 382:-
‘Registration, in this context, means no more than putting details in a register.’
Under the legislation the local authority may in the course of the registration process under s. 261(7) require an applicant make a fresh planning application in respect of quarries which commenced operation before the 1st October, 1964, (‘the appointed date’) where the quarrying activity is carried out in an area in excess of 5 hectares, or where the lands are either in an area designated under Council Directive 92/42 EEC of 21 May, 1992 on the conservation of natural habitats and of wild fauna and flora, O.J. 206/7 22.7.1992 (‘the Habitats Directive’), in another prescribed area, or are lands to which ss. 15, 16 and 17 of the Wildlife Act 1976, apply.
Registration of the Quarry was completed in respect of an area comprising 28.35 hectares. By notice of the 9th June, 2005, and in the exercise of its statutory power, the local authority required that the notice party make a planning application and prepare an Environmental Impact Statement (EIS) in respect of part of the registered area, and approximately 8 hectares were excluded.
There has been much litigation in this jurisdiction with regard to quarrying activity. A particular difficulty arises from the fact that the nature of the activity can change because of economic factors which impact on demand for the product produced by a quarry. Advances in extraction methods also mean in many cases that the nature of the activity has changed. Quarries furthermore are complex in terms of their characterisation, and involve both use development and works development.
The application for planning permission in respect of c. 20 hectares was lodged on the 16th June, 2006. Further information was sought by the local authority on 10th August, 2006 arising from a report from the planning Inspector. The Inspector had noted a concern that the excavation which was stated to be conducted at 10m OD was ‘at or below’ the water table. A reply was served to this notice on 9th February, 2007, accompanied by a report as to the ground water management
The local authority sought further information on 4th April, 2007, and a reply was received on 12th February 2008.
The local authority then engaged the services of Barry & Partners (‘Barrys’), consulting engineers, to advise, especially in light of the suggestion that it was proposed to excavate below minus 10m OD. The report from Barrys of 30th March, 2008, showed the excavation at 3m OD and below the water table in August 2007, and suggested that it was not desirable to allow excavation below the proposed level of minus 10m OD. Barrys considered the most desirable approach would be to allow planning permission in part of the Quarry and the practical effect of this would be that the quarrying activity on the subject lands would thereby be limited or cease.
The executive planner of the local authority prepared a report of 4th April, 2008, where the grant of permission subject to conditions was recommended.
Permission was granted on 7th April, 2008 subject inter alia to condition 7 that excavation not fall below minus 10m OD.
The County Council had already made a determination that part of the lands lying on the east of the subject site, comprising c.8.02 hectares, was not capable of being considered by it under s. 261, but was to be treated as an unauthorised development. Permission in respect of this area was refused under ref PL03.227554, primarily because of the decision of the European Court of Justice in Commission v. Ireland C-215/06 in which the Commission argued successfully that Irish provisions relating to retention permission were not in conformity with European law.
Planning permission was granted for retention and quarrying works at lands on the southwest of the application site comprising two lots of 9.56 hectares and 6.64 hectares respectively. The conditions attached to this permission included a condition that no quarrying activity should commence until planning permission had been granted in respect of the application site under the s.261 procedure.
Other parts of the development, including the tarmacadam and concrete plants have separate planning permissions.
An appeal was lodged to the Board on 4th June, 2009 and an oral hearing was requested. The applicant was a third party appellant in that process.
The Board appointed Conor McGrath to act as Inspector and he produced three reports. The first report of 9th December, 2008, recommended refusal of planning permission, with specific regard to the absence of an adequate and authorised system for the management of run-off from the lands, and because application for permissions in respect of infrastructural works, surface water treatment and disposal on lands to the east (the 8 hectare site referred to at para. 14 ante removed from the s.261 process) was not yet determined.
The Board issued a s. 137 notice on 7th March, 2011, seeking submissions on the issue of water discharge, noting that the management of an authorised water management system might cause unacceptable environmental pollution.
A response of 4th April, 2011, by the solicitors for NAMA, who had by then appointed a statutory receiver to Whelans, makes the argument that as the application area had been registered by the local authority pursuant to s. 261, such registration imported, as a matter of law, a finding that the activity was authorised. Clare County Council replied, rejecting that suggestion, on 1st April, 2011.
The Board held a meeting on 30th May, 2011, to consider the retention application in ref PL03.227554 (the 8 hectare site), and...
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...outlined by Charleton in An Taisce (2010) were approved of and followed by Baker J. in the High Court in Hehir v. An Bord Pleanála [2016] IEHC 104 (‘ Hehir’). One of the questions which arose in that case was whether the Board applied the correct legal test in coming to a determination tha......
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Shillelagh Quarries Ltd v an Bord Pleanála
...Limited v. An Bord Pleanála & ors [2014] IEHC 382 ( “ McGrath Limestone”) and by Baker J. in the High Court in Hehir v. An Bord Pleanála [2016] IEHC 104 ( “ Hehir”) 14 I concluded that those cases clearly demonstrated the approach which had to be taken by the Board in considering whether a ......