Kells Quarry Products Ltd v Kerry County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 11 March 2010
• Neutral Citation: [2010] IEHC 69
• Court: High Court
• Date: 11 March 2010

[2010] IEHC 69

HIGH COURT

[No. 532 J.R./2007]

Kells Quarry Products Ltd v Kerry County Council

JUDICIAL REVIEW

BETWEEN

KELLS QUARRY PRODUCTS LIMITED

APPLICANT

AND

KERRY COUNTY COUNCIL

RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S261(5)(B)

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S261(1)

PLANNING & DEVELOPMENT ACT 2000 S261(5)(A)

PLANNING & DEVELOPMENT ACT 2000 S261(6)(A)

PLANNING & DEVELOPMENT ACT 2000 S261(2)

PLANNING & DEVELOPMENT ACT 2000 S261(3)

RSC O.84 r26(4)

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP KELLY 14.3.2007 2007/59/12596 2007 IEHC 86

DEVRAJAN v JUDGE BALLAGH & JUDGE KELLY 1993 3 IR 377 1994/9/2516

DAWSON v JUDGE HAMILL (NO 2) 1991 1 IR 213

MURPHY v JUDGE WALLACE & ORS 1993 2 IR 138 1990 ITR 229 1990/10/2838

BROWNE v KERRY CO COUNCIL UNREP HEDIGAN 9.10.2009 2009 IEHC 552

PLANNING & DEVELOPMENT ACT 2000 S251

FLYNN & O'FLAHERTY PROPERTIES LTD v DUBLIN CORP 1997 2 IR 558 1997/3/1001

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Judicial review - Certiorari - Quarry - Draft conditions imposed - Whether statutory time limit for submissions provided to applicant - Expiry of time limit for imposition of conditions - Jurisdiction of the court - Whether jurisdiction to remit matter - Discretion - Usk and District Residents Association v An Bord Pleanála [2007] IEHC 86; Devrajan v Ballagh [1993] 3 IR 377; Dawson v Hamill (2) [1990] 1 IR 213; TN v Minister for Justice [2007] 4 IR 553; Director of Public Prosecutions v O Neill (Unrep, SC, 30/7/84) and Murphy v Wallace [1993] 2 IR 138 considered - Brown v Kerry County Council (Unrep, Hedigan J, 9/10/2009) and Flynn v Dublin Corporation [1997] 2 I.R. 558 applied - Planning and Development Act 2000 (No 30), s. 261 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 26(4) - Certiorari granted; matter not remitted (2007/532JR - Dunne J - 11/3/2010) [2010] IEHC 69

Kells Quarry Products v Kerry County Council

1 JUDGMENT of Ms. Justice Dunne delivered on the 11th day of March 2010

2 The applicant herein operates a quarry at Knockaneyouloo, Kells, County Kerry. The respondent is a local authority with responsibility for the administrative area of County Kerry.

3 The applicant seeks the following reliefs in these proceedings:

4 2 "1. An order of certiorari quashing the decision of Kerry County Council on Quarry Registration Reference Number QY018, which imposed thirty-four numbered conditions on the existing quarry.

5 2. A declaration that the letter dated 29 ^th January, 2007, which invited submissions from the draft conditions failed to comply with the requirements of s. 261(5)(b) of the Planning and Development Act 2000, in that, it failed to accord the applicant the statutory time period in which to make the submissions in respect of the aforesaid conditions, and is, in those circumstances, ultra vires and void.

6 3. A declaration that the respondent failed to determine the application in accordance with s. 261 of the Planning and Development Act 2000, and failed to have regard to the time limits set out therein. In the alternative, an order remitting the application back to the respondent so that the matters can be determined in accordance with the requirements of the Planning and Development Act 2000 (as amended)."

Background

7 The Planning and Development Act 2000 (hereinafter referred to as "The Act") introduced new provisions for the control of quarries. S. 261 in its provisions allows a planning authority to impose, restate, modify or add to conditions on the operation of a quarry. The provisions of s. 261 were commenced by Statutory Instrument in 2005. The applicant's quarry was one which had been in operation prior to l ^st October, 1964, and, accordingly, was one which did not require planning permission. S. 261(1) provides:

"The owner or operator of a quarry to which this section applies shall, not later than one year from the coming into operation of this section, provide to the planning authority, in whose functional area the quarry is situated, information relating to the operation of the quarry at the commencement of this section, and on receipt of such information, the planning authority shall, in accordance with section 7, enter it in the Register."

8 The operator of the quarry in this case was duly registered by the respondent on 23 ^rd March, 2005. Subsequent to the registration of the quarry, the respondent had until 22 ^nd March, 2007, to decide to impose conditions in respect of the quarry. By letter dated 20 ^th January, 2007, the respondent enclosed draft conditions which it intended to impose on the applicant. There were some thirty-four draft conditions in relation to the operation of the quarry. Although the letter was dated 29 ^th January, 2007, and stated that the applicant could: ldquo;make a submission or observation in respect of this proposed decision (and the conditions) on or before 16 ^th March, 2007", it has been deposed on affidavit that the letter bearing a franked postmark of 9 ^th February, 2007, was not received by the applicant until 14 ^th February, 2007. That being so, the applicant had less than six weeks in which to respond to the letter of 29 ^th January, 2007, and in those circumstances, the respondent has now agreed that the applicant is entitled to an order of certiorari quashing the decision of Kerry County Council referred to above.

9 In those circumstances, the issue which I now have to determine is whether or not there is jurisdiction to remit the matter to the respondent to allow the applicant to make the relevant submissions provided for in the legislation, and if there is such jurisdiction, whether the court should, in those circumstances, exercise its discretion to remit the matter to the respondent.

10 I should refer to the relevant legislative provisions for ease of consideration of the matters that arise herein. I have already referred to the provisions of s. 261(1) of the Act. Section 261(5)(a) provides:

"Where a planning authority proposes to:"

11 (i) impose, restate, modify or add to conditions on the operation of the quarry under this section, or

12 (ii) require, under sub-section 7, a planning application to be made and an Environmental Impact Statement to be submitted in respect of the quarry in accordance with this section, it shall, as soon as may be after the expiration of the period for making observations or submissions, pursuant to a notice under sub-section (4)(b),

13 (a) Serve notice of its proposals on the owner or operator of the quarry.

14 (b) A notice referred to in paragraph (a), shall state-

15 (i) the reasons for the proposals, and

16 (ii) that submissions or observations regarding the proposals may be made by the owner or operator of the quarry to the planning authority within such period as may be specified in the notice, being not less than six weeks from the service of the notice.

17 (c) Submissions or observations made pursuant to a notice under paragraph (b) shall be taken into consideration by a planning authority when performing its functions under sub-section ( 6) or(7)."

18 Section 261 (6)(a) provides:-

"Not later than two years from the registration of a quarry under this section, a planning authority may, in the interest of proper planning and sustainable development, and having regard to the development plan and submissions or observations (if any) made, pursuant to a notice under sub-section ( 4) or (5)-"

(i) In relation to a quarry which commenced operation before 1 ^st October, 1964, impose conditions on the operation of that quarry, or

(ii) In relation to a quarry in respect of which planning permission was granted under Part 4 of the Act of 1963, restate, modify or add to conditions imposed on the operation of that quarry, and the owner operator of the quarry concerned shall, as soon as may be thereafter, be notified in writing thereof."

Submissions of the parties

19 The respondent has contended that at all times since the commencement of these proceedings, it has been open and willing...