Kelly Dunne v Guessford Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 14 October 2022
• Neutral Citation: [2022] IECA 223
• Court: Court of Appeal (Ireland)
• Docket Number: High Court Record Number: 2018/308MCA

In the Matter of an Application Pursuant to Section 160 of the Planning and Development Act, 2000 (As Amended)

Between

Elaine Kelly Dunne, Noel Moore, Ann Flynn, David Kelly, Annette McGrath, Louise O'Sullivan, Claire Moore, Matt Kelly and Michael Kelly

Applicants/Respondents

and

Guessford Limited Trading as Oxigen Environmental

Respondent/Appellant

[2022] IECA 223

Costello J.

Collins J.

Allen J.

High Court Record Number: 2018/308MCA

Court of Appeal Record Number: 2021/315

THE COURT OF APPEAL

CIVIL

Planning permission – Enforcement – Planning and Development Act 2000 s. 160 – Appellant appealing the finding that the receipt, recycling and/or processing of timber was not authorised by the planning permission – Whether the trial judge erred in law in the manner in which the documentation lodged as part of the planning application process was considered

Facts: The respondents, Ms Dunne, Mr Moore, Ms Flynn, Messrs Kelly, Ms McGrath, Ms O’Sullivan and Ms Moore, brought enforcement proceedings pursuant to s. 160 of the Planning and Development Act 2000 (as amended). They alleged that a waste facility operated by the appellant, Guessford Ltd, had been operated in breach of the terms of planning permission No. PL2/09/439. In particular, they asserted that the authorised use was confined to the recycling of construction and demolition waste and did not permit the acceptance and treatment of non-inert, commercial or municipal waste. The High Court (Simons J, [2021] IEHC 583) agreed with the respondents and held that the authorised use of the waste facility was confined to the recycling of construction and demolition waste; that this term would be understood by the hypothetical ordinary and reasonably informed reader of the planning permission as referring to waste material generated by activities involving the construction and demolition of buildings; and that the treatment of timber by shredding was not authorised by the planning permission. The High Court ordered that the appellant be prohibited from accepting any waste at the facility other than construction and demolition waste and made other ancillary orders. The appellant appealed to the Court of Appeal from the judgment and orders of the High Court. The appellant alleged that the trial judge erred in law in the manner in which the documentation lodged as part of the planning application process was considered, which documentation was said to have identified the nature and extent of the activities carried out and which, it was said, was the subject matter of the retention application. The appellant expressly appealed the finding that the receipt, recycling and/or processing of timber was not authorised by planning permission No. PL2/09/439.

Held by Costello J that the grant of planning permission in respect of the waste facility at Barnan, Co. Offaly, properly construed, having regard to the application for planning permission and the documents incorporated into the grant of planning permission by Condition 1, read objectively by the hypothetically well-informed reader, authorised the retention of a recycling facility for construction and demolition waste only; it did not authorise the recycling of commercial and industrial waste and it did not authorise the shredding of timber. Costello J held that the activities of the appellant in accepting and processing waste other than construction and demolition waste at the facility, including the shredding of timber, constituted unauthorised use of the lands and thus unauthorised development. Costello J held that the trial judge did not err in the exercise of his discretion in making orders pursuant to s. 160 of the 2000 Act with a view to bringing to an end the unauthorised development which had been shown to be occurring at the facility.

Costello J rejected the appeal. Provisionally, it seemed to Costello J that the respondents had been entirely successful on the appeal and were accordingly entitled to their costs of the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 12th day of October 2022

Introduction

1 What does planning permission No. PL2/09/439 authorise? This is the principal issue in this appeal from the judgement of Simons J. [2021] IEHC 583. The proceedings are enforcement proceedings brought by a number of individuals ( “the respondents”) pursuant to s. 160 of the Planning and Development Act, 2000 (as amended) ( “The PDA 2000”) who allege that a waste facility operated by Guessford Limited ( “the appellant”) has been operated in breach of the terms of the planning permission. In particular, they assert that the authorised use is confined to the recycling of construction and demolition waste and does not permit the acceptance and treatment of non-inert, commercial or municipal waste. The High Court agreed with the respondents and held that the authorised use of the waste facility is confined to the recycling of construction and demolition waste; that this term would be understood by the hypothetical ordinary and reasonably informed reader of the planning permission as referring to waste material generated by activities involving the construction and demolition of buildings; and that the treatment of timber by shredding was not authorised by the planning permission. The High Court ordered that the appellant be prohibited from accepting any waste at the facility other than construction and demolition waste and made other ancillary orders.

2 The appellant has appealed the judgment and orders of the High Court.

Background

3 In 2006 Kevin and Michelle Daly were the owners of lands located at Barnan, Rhode, County Offaly approximately two miles from Daingean, off the main Daingean to Tyrrellspass road. The lands had been previously used for agriculture but Mr. and Mrs. Daly decided to develop a recycling facility on the lands. On 2 February 2007 Mr. and Mrs. Daly's company, Concrete Recycling Specialists Limited, was granted a waste permit – WP 138-06 – pursuant to the Waste Management (Permit) Regulations, 1998 for the processing of 23 types of waste as described in Appendix A of the permit, by reference to the relevant European Waste Catalogue Code. Of the 23 types of waste, sixteen were in the category of “Construction and demolition wastes (including excavated soils from contaminated sites)” one in the category of “Wastes from waste management facilities, off-site waste water treatment plants and the preparation of water intended for human consumption and water for industrial use”, and the remaining six in the category of “Municipal wastes (household waste and similar commercial, industrial and institutional wastes) including separately collected fractions”. On the 15th December, 2010 the Local Authority granted to Complete Recycling Services Limited 1 a waste facility permit – 2007 WFP-10-OY-0183-01 – pursuant to the Waste Management (Facility Permit and Registration) Regulations, 2007 (as amended). The classes of waste permitted to be accepted and recycled on the site were extended to include inter alia waste plastics, waste from forestry, waste metal and waste packaging from a variety of materials including paper, cardboard, plastic, wood, metal, glass textile and mixed and composite packaging as well as mixed municipal waste comprising of commercial dry recyclables and bulky waste, clothes and textiles. This waste facility permit was transferred to the appellant on 28th March 2011 and had an expiry date of the 14th December, 2015. Prior to the expiry of the permit, the appellant applied to renew the permit. After certain litigation, the local authority decided not to renew the permit and that it warranted an application for a new waste facility permit. The appellant appealed that decision to the District Court where it has been adjourned on a number of occasions.

4 Mr. and Mrs. Daly had not applied for planning permission in respect of the development which consisted of the making of a material change in the use of the lands and the erection of certain structures to enable them to operate the waste recycling facility on the site. As no planning permission had been obtained prior to the commencement of the development, the change of use and the development works constituted “unauthorised development”.

5 Mr. and Mrs. Daly took steps to regularise the planning position by seeking retention planning permission in 2009. The application for retention planning permission submitted to Offaly County Council was dated the 20th October, 2009. It was thus submitted when WP 138-06 applied to the site and before WPF-10-0183-01 issued. As the scope of the grant of planning permission is at the heart of these proceedings, it is necessary to set out in some detail the contents of the relevant documents.

6 On the 8th October 2009 a site notice was erected which identified that the application was for permission and retention permission for development consisting of:-

“… retention permission of recycling facility for construction and demolition materials incorporating storage buildings, bunkers, offices and weigh bridge, and plant and material storage yard, effluent treatment system and all ancillary services and permission to construct 1st aid fire firefighting water tank.”

A notice in identical terms had been advertised in the Offaly Express on the 7th October 2009. There was no reference to commercial or industrial waste being recycled at the facility.

7 The application submitted to Offaly County Council indicated that it was for permission for retention. The applicants were Kevin and Michelle Daly. Specifically, the applicant was not their company, Concrete Recycling Specialists Limited.

8 Part 9 of the application form required the applicants to provide a “Brief description of the nature and extent of the development”. This was completed as follows:-

“Recycling facility for construction & demolition...