Jim (Otherwise James) Ferry v John Calderbanks T/A D&M Services and D&M Environmental Services Ltd T/A DM Waste

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Miriam O'Regan
• Judgment Date: 05 February 2021
• Neutral Citation: [2021] IEHC 97
• Docket Number: [Record no. 2020/144 MCA]
• Date: 05 February 2021

In the Matter of the Planning and Development Act 2000 and Section 160 Thereof

And in the Matter of the Waste Management Act 2006

And Section 58 Thereof

Between

Jim (Otherwise James) Ferry

Applicant

and

John Calderbanks T/A D&M Services and D&M Environmental Services Limited T/A DM Waste

Respondents

[2021] IEHC 97

[Record no. 2020/144 MCA]

THE HIGH COURT

Planning and development – Unauthorised development – Planning and Development Act 2000 s. 160 – Applicant seeking to prohibit and restrain the respondents from unauthorised development – Whether the use of the premises was unauthorised

Facts: The applicant, Mr Ferry, applied to the High Court seeking three orders pursuant to s. 160 of the Planning and Development Act 2000 (as amended) (the P&D Act) and two orders pursuant to s. 58 of the Waste Management Act 1996 (as amended) (the 1996 Act). The application was grounded upon an affidavit of the applicant of 22 June 2020. The orders sought under s. 160 of the P&D Act were: (1) to prohibit and restrain the respondents, Mr Calderbanks t/a D&M Services and D&M Environmental Services Ltd t/a DM Waste, from continuing the formally authorised but since 15 July 2018, at the least, unauthorised development at Labbadish, Manorcunningham, Letterkenny, Co. Donegal; (2) to prohibit and restrain the respondents from further unauthorised development by use of the lands as a waste and recycling storage facility; and (3) to prohibit and restrain the existence and use of previously permitted buildings as a waste facility. In oral submissions counsel on behalf of the applicant identified the first two reliefs as being the relevant reliefs and indicating that the third relief was not as important and/or was in any event captured by the first two reliefs. Insofar as the 1996 Act was concerned, initially the position adopted in submissions was to suggest the Court might take note of the fact that not enough evidence was available to the applicant to secure the reliefs, and therefore counsel was not pressing for any relief under those headings of claim. It was not until in response to the reply on behalf of the respondents that the applicant ultimately withdrew his claim under the 1996 Act.

Held by O’Regan J that even if she was incorrect insofar as the finding that it had not been demonstrated that the use of the premises was unauthorised, and/or that it was not possible to make an order in respect of the relevant unauthorised shed within the curtilage of the respondents’ site, nevertheless, she was satisfied that even if the use was unauthorised and the shed was identified, no order should be made on foot of s. 160 having regard to the following matters to be considered in the exercise of the Court’s discretion: (1) the nature of the breach; (2) the conduct of the infringer; (3) the reason for the infringement; (4) the attitude of the planning authority; (5) the public interest; (6) the conduct and personal circumstances of the applicant; (7) delay and acquiescence; (8) the personal circumstances of the respondent; (9) the consequences of any such order; and (10) developments in the legislative process and associated jurisprudence had clearly contributed to the delay in regularising the planning status of the within site and the respondent had ongoing engagement with the planning authorities.

O’Regan J held that, in the circumstances, and in particular having regard to para. 89 of the judgment of McKechnie J in The County Council of the County of Meath v Michael Murray and Rose Murray [2010] IESC 25 to the effect that the interests of the public will be ever present on the enforcing side and most likely will stand first in the queue for consideration, the most appropriate order to make would be to adjourn the proceedings for mention only for a period of twelve months to enable an application for substitute consent to An Bord Pleanála, and the application for future planning permission to Donegal County Council.

Proceedings adjourned.

JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 5th day of February, 2021

Issues

1 The within matter comes before the Court on foot of a notice of motion on behalf of the applicant of 23 June 2020, in which the applicant is seeking three orders pursuant to s.160 of the Planning and Development Act 2000 (as amended) (the P&D Act) and is further seeking two orders pursuant to s.58 of the Waste Management Act 1996 (as amended) (the 1996 Act). The application is grounded upon an affidavit of the applicant of 22 June 2020.

2 The orders sought under s.160 of the P&D Act are:

• (1) To prohibit and restrain the respondents from continuing the formally authorised but since 15 July 2018, at the least, unauthorised development at Labbadish, Manorcunningham, Letterkenny, Co. Donegal.

• (2) To prohibit and restrain the respondents from further unauthorised development by use of the lands as a waste and recycling storage facility.

• (3) To prohibit and restrain the existence and use of previously permitted buildings as a waste facility.

3 In oral submissions counsel on behalf of the applicant identified the first two reliefs as being the relevant reliefs and indicating that the third relief was not as important and/or was in any event captured by the first two reliefs.

4 Insofar as the 1996 Act is concerned, initially the position adopted in submissions was to suggest the Court might take note of the fact that not enough evidence was available to the applicant to secure the reliefs, and therefore counsel was not pressing for any relief under these headings of claim. It was not until in response to the reply on behalf of the respondents that the applicant ultimately withdrew his claim under the 1996 Act.

5 The securing of an early hearing date was based upon an application made on behalf of the applicant to the effect that the within matter was urgent. However, it is acknowledged on behalf of the applicant that the nature of the urgency was never identified either in the papers submitted to the Court or in making the application to the Court for an early trial date. This is a matter of interest in or about assessing the motivation of the applicant in maintaining the within proceedings.

Applicant's first affidavit

6 In the grounding affidavit aforesaid the applicant advises the Court “for the sake of openness and transparency” that he had previously been involved in proceedings in respect of the failure to remove waste stored, and in breach of a waste permit facility condition on a site operated by him/his former company. As a consequence of proceedings brought by Donegal County Council against the applicant, delivery and storage of waste at his site was stopped by order of the High Court in April 2017.

7 The applicant asserts that during the course of the inspection and investigation, over an extended period by Donegal County Council into his facility, he brought to the attention of officials from the County Council, in or about June or July 2018, that there was illegal activity by other waste operators, in particular the respondents herein. The applicant asserts that notwithstanding every effort to deal with the waste on his site, due to pressure and focus on him by the local authority, it became impossible for him to comply with the removal and disposal of the stored waste within a two-month period as directed by the Court. As a consequence he was committed to prison for a nine-week period by order of 26 June 2019.

8 Following the closure of the applicant's business, the respondents were hired by the County Council to remove a substantial amount of waste from the applicant's site. The applicant asserts that the respondents were operating without proper or valid planning permission, and the respondents benefitted from this arrangement with the County Council to the tune of several hundred thousand euro, and also charged the Council double the going rate. The applicant asserts that because of the concentration and focus by the Council on him and his activities, he was unable to concentrate on other operators within the industry until recent months.

9 At para. 8 of the affidavit the applicant suggests that the respondents have continued to operate illegally since May 2018, although he also suggests that it is his belief that the respondents have not had proper planning permission for further activities since 2014. In support of the assertion that planning permission was not available to the respondents since 2014, the applicant relies on an application by the respondents to the County Council in 2014 for the continuation of a waste storage and recycling transfer station, and all associated developments. The applicant states that the application was rejected as being incomplete, and his exhibit in this regard is confined to the letter from the authority identifying that the application was incomplete on the basis of the attached check list.

10 It appears that the respondents made a fresh application for planning permission to the County Council in 2014, and this too was rejected on the basis of an assertion that the development description was inaccurate. In the memo from the local authority exhibited, it states that the current permission for the buildings etc. on site expires on 12 April 2014.

11 At para. 12 the applicant identifies that the respondents made an application in 2008 which was granted for a five-year period, and there was a subsequent extension to that permission by order of 18 April 2013. Correspondence from the local authority is exhibited. At para. 13 the applicant identifies that the respondents made a further application in 2015 for retention permission in respect of all buildings and use of the site and the applicant refers to correspondence in support of this assertion. The 2015 application was also rejected.

12 The applicant exhibits a letter from his engineer Kevin Martin dated 21 June 2020, who...