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

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IECA 345
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2021/67

In the Matter of the Planning and Development Act 2000

And Section 160 Thereof

And in the Matter of the Waste Management Act 1996

And Section 58 Thereof

Between/

Jim (Otherwise James) Ferry

Applicant

and

John Caulderbanks T/a D&M Services and D&M Environmental Services Limited T/a DM Waste

Respondents

[2021] IECA 345

Faherty, J.

Power, J.

Collins, J.

Record Number: 2021/67

High Court Record No. 2020/144MCA

THE COURT OF APPEAL

Adjournment – Planning and development – Property – Appellant appealing from an order adjourning the appellant’s application brought pursuant to s. 160 of the Planning and Development Act 2000 – Whether the trial judge ought to have made an order in respect of a finding she made concerning the existence of an unauthorised shed on the respondents’ property

Facts: The appellant, Mr Ferry, appealed to the Court of Appeal from an order of the High Court (O’Regan J) adjourning the appellant’s application brought pursuant to s. 160 of the Planning and Development Act 2000 (as amended). The trial judge delivered judgment in the matter on 5 February 2021. On the same day, she made an order that the proceedings do stand adjourned for a period of twelve months. The appeal was heard on 25 November 2021. The essential complaint made by the appellant was that the trial judge ought to have made an order — even an order that was subject to a stay — in respect of a finding she made concerning the existence of an unauthorised shed on the respondents’ property. The respondents, Mr Caulderbanks trading as D&M Services and D&M Environmental Services Ltd trading as DM Waste, contended that the trial judge had, essentially, determined the s. 160 application against the appellant and that the order adjourning the proceedings was made only for the purposes of urging them to ‘move matters along’ in terms of the outstanding applications that were pending in respect of the planning status of their property.

Held by Power J that if the respondents were successful in their pending applications to An Bord Pleanála and Donegal County Council then that would put an end to the matter. Power J held that if they were unsuccessful, then the appellant’s application — which had been adjourned and not declined — could proceed to a final determination. Power J held that at that point, there would be ample opportunity for both sides to assist the court in addressing any outstanding evidential deficits such that a final decision could be made grounded upon admissible and reliable evidence.

Power J refused the appeal and allowed the matter to proceed on the adjourned date. Power J relieved the appellant of the finding that there was no material change in use and thus no unauthorised use. Power J also relieved the respondents of the finding that there was an unauthorised development in respect of the existence of an unspecified structure on their premises.

Appeal dismissed.

JUDGMENT of Ms. Justice Power delivered on the 21 ^st day of December 2021

Introduction

1 . This is an appeal from an Order of the High Court (O'Regan J.) adjourning the appellant's application brought pursuant to s. 160 of the Planning and Development Act 2000 (as amended) (hereinafter ‘the Act of 2000’). The trial judge delivered judgment in the matter on 5 February 2021. On the same day, she made an order 1 that the within proceedings do stand adjourned for a period of twelve months. That was the only order made by the High Court in these proceedings.

2 . This appeal was heard on 25 November 2021 and the date when the matter will be back before the High Court is relatively proximate. The appeal is concerned only with the trial judge's order adjourning the proceedings. The essential complaint made by the appellant is that she ought to have made an order—even an order that was subject to a stay—in respect of a finding she made concerning the existence of an unauthorised shed on the respondents' property. This judgment is concerned with the question of whether, as a matter of principle, the trial judge was entitled to adjourn the proceedings in the manner she did.

3 . The respondents have not cross appealed the trial judge's order. They contend that the trial judge has, essentially, determined the s. 160 application against the appellant and that the order adjourning the proceedings was made only for the purposes of urging them to ‘ move matters along’ in terms of the outstanding applications that are pending in respect of the planning status of their property.

Background

4 . As a result of proceedings taken against him by Donegal County Council (‘the Council’), the appellant had his waste delivery and storage operation shut down, by order of the High Court in April 2017. In June 2019, he was committed to prison for nine weeks for failing to comply with a court order to disclose his financial circumstances. The respondents were hired by the Council to clean up and remove waste from the appellant's site. The appellant feels aggrieved by what he considers to be double standards on the part of the Council in or about its treatment of him as distinct from its treatment of the respondents. In his view, the respondents have been operating their waste and recycling storage business in breach of the planning code and, thus, has been ‘unauthorised’ since in or about July 2018.

Legislative Provisions

5 . Pursuant to s. 2(1) of the Act of 2000 and in relation to land an ‘ unauthorised development’ means ‘ the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use’. An ‘ unauthorised use’ means:

“ in relation to land, use commenced on or after 1 October 1964, being a use, which is a material change in use of any structure or other land and being development other than –

• (a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or

• (b) development which is the subject of a permission granted under Part IV of the Act of 1963 or under section 34, 37G or 37N of this Act, being a permission, which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject.”

6 . Section 160 of the Act of 2000 provides, where relevant, as follows:

“ 160.—(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court … may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

…

(3) (a) An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.”

7 . Formerly, a person operating an unauthorised development or making unauthorised use of land could apply to the local planning authority for ‘retention’ of such a development or use. Case number C-215/06 of the European Court of Justice (ECJ) resulted in the removal of that facility where the development would, otherwise, have required an Environmental Impact Assessment (EIA) or an Appropriate Assessment (AA) under the Habitats Directive. 2 Consequently, under the amended s. 34(12) of the 2000 Act, the planning authority is no longer empowered to accept an application for retention in respect of such a development.

8 . However, the provisions of s. 177(C) of the Act of 2000 permit an application for leave to apply to An Bord Pleanála (‘the Board’) for substitute consent in certain circumstances, including, exceptional circumstances. 3 For regularization to be permitted, an applicant must demonstrate to the Board the appropriateness of such an application. 4 The provisions of s. 177(D)(1) permit an application for leave to apply for substitute consent in certain limited circumstances. The Board must be satisfied that an EIA, a determination as to whether an EIA is required, or an AA was or is required in respect of the development concerned and, where subsection (b) of that provision is engaged, it must further be satisfied that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation by permitting an application for substitute consent.

9 . In its decision to grant or refuse leave to apply for substitute consent, the Board must, pursuant to s. 177D(1B) set out the main reasons and considerations on which the decision is based with specific reference to the relevant criteria listed in Schedule 7 of the Planning and Development Regulations. 5 The ‘leave’ stage thus involves a screening process and a determination.

Proceedings

10 . The appellant brought an application pursuant to s. 160 of the Act of 2000 seeking orders:

His application was grounded upon an affidavit sworn on 22 June 2020. In reply and on behalf of the respondents, Mr Caulderbanks swore an affidavit on 12 July 2020. The appellant then swore a further affidavit on 12 August 2020. The respondents replied by affidavits sworn, respectively, by Mr Caulderbanks and Mr Nealon on 21 October 2020.

• (i) prohibiting the respondents from continuing an unauthorised development at their site in Letterkenny, Donegal;

• (ii) prohibiting the respondents from further developing their land as a waste and recycling unit, and

• (iii) prohibiting the existence and use of previously permitted buildings as a waste facility. 6

The...