Kildare County Council v Goode

• Jurisdiction: Ireland
• Judge: Keane, J.,BARRON J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 43
• Court: Supreme Court
• Docket Number: [S.C. No. 207 of 1997]
• Date: 18 May 1999

[1999] IESC 43

THE SUPREME COURT

Hamilton, CJ

Barrington, J

Keane, J

Lynch, J

Barron, J

Appeal No. 207/97

KILDARE CO.COUNCIL v. GOODE & ORS

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT(PLANNING AND DEVELOPMENT) ACT 1976AS AMENDED AND EXTENDED

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OFKILDARE

APPLICANTS/RESPONDENT

AND

THOMAS PETER GOODE & THERESA GOODE & GOODECONCRETE

RESPONDENTS/APPELLANTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

PATTERSON V MURPHY 1978 ILRM 85

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(1)

WATERFORD CO COUNCIL V JOHN A WOOD LTD 1999 1 ILRM 217

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(6)(b)

Synopsis

Planning

Planning; works; intensification of use; abandonment of use; requirement to obtain planning permission; appeal from High Court decision to restrain appellant's use of lands for the purposes of a sand and gravel pit; whether operation of gravel pit constitutes development commenced before the appointed day within the meaning of s.24(1), Local Government (Planning and Development) Act, 1963; whether operation of gravel pit on appellants" land constitutes an intensification of use of the lands compared to their use prior to the appointed day; whether use of the lands had been abandoned; whether respondents" failure to bring proceedings within the five year time limit precludes them from relief; s.27, Local Government (Planning and Development) Act, 1976.

Held: The works constitute an intensification of use of the lands; planning permission required; appeal dismissed.

Kildare County Council v. Goode Supreme Court: Hamilton C.J., Barrington J., Keane J., Lynch J., Barron J. 18/05/1999 - [1999] 2 IR 495 - [2000] 1 ILRM 346

In the present case while the deposits were available for extraction there was no concerted or ordered activity in relation thereto and such extraction as was carried out was haphazard and therefore there was no evidence of an uncompleted development on the appointed day. Further, the respondent was not out time in bringing the application as it brought about a cesser of use within the five year time limit and time would only begin to run again if the use began once more.

1 JUDGMENT delivered the 18th day of May 1999 , by Keane, J.

2 The facts in this matter, so far as relevant, are fully set out in the judgment which will be delivered by Barron J.

3 The case presented on behalf of the Respondents/Appellants (hereafter "the developers") both in the High Court and in this court was founded on a distinction between what were described as "works developments" and "usedevelopments". These phrases, at least in that form, are not to be found anywhere in the relevant planning legislation, but the significance of the distinction, as it emerged from the arguments on behalf of the developers, can, I think, be shortly summarised.

4 There was evidence before the learned trial judge (Morris J, as he then was) from which he considered himself entitled to infer that, if the development which the applicant/respondent (hereafter "the County Council") sought to interdict was commenced before the coming into operation of the Local Government (Planning and Development) Act 1963, it had either been abandoned or, if not abandoned, intensified to a degree which constituted in law a new development.

5 There is ample authority, both here and in England, for the proposition that a development, which was initiated before the relevant planning code became operative and for that reason did not require permission, may subsequently be regarded as having been abandoned, resulting in the necessity; for planning permission if it is resumed: see Hartley v. Minister of Housing and Local Government & Anor. [1970] 1 QB413 and the decision of this court in Dublin County Council v. Tallaght Block Company Limited [1982] ILRM 534. There is similarly authority for the proposition that such a development, although not abandoned in that sense, may have been intensified to a degree which necessitates permission: see Patterson v. Murphy [1978] ILRM85. Thedevelopers say, however, that the lines of authority in question do not apply to a "works development" begun before the relevant planning code came into force: once begun, they claim, such a development may be continued or brought to completion after the code has come into force, unlike a "use development" which may lose its immune status because it is either abandoned or intensified.

6 Section 24 of the Local Government (Planning and Development) Act 1963(Hereafter "the 1963 Act") provides that permission isrequired:-

"In respect of any development of land, being neither exempted development nor development commenced before the appointedday..."

7 "the appointed day" for the purposes of the 1963 Act was October 1st 1964. It is not in dispute that sand and gravel had been extracted from the lands in question prior to that date. That, the developers say, constituted a "works development" to which the concepts of "abandonment" and "intensification" did not apply. In support of that submission, Mr. Paul Gallagher, SC on behalf of the developers lays understandable emphasis on the precise form of the definitions which the draftsman of the 1963 Act employed.

8 "Development" is defined by s.3(1) as

"save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land."

9 Section 2 defines "works" as including

"any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal."

10 While "material change in the use of" land is not further defined save negatively by the exemption of certain changes of use from the requirement to obtain permission, s.2 provides that:

""use", in relation to land, does not include the use of the land by the carrying out of any worksthereon.".

11 The reason for the latter provision can be made clear by an example. In ordinary parlance, putting up a building on farmland hitherto used for growing crops would be treated as changing the use of the land. Since, however, theconstruction of farm buildings is, to some extent, an exempted development, the draftsman found it necessary to provide that the carrying out of works on land, by itself and of itself, was not a use of land for the purposes of the 1963 Act.

12 The fallacy in the submission advanced on behalf of the developers is that it assumes that the necessary consequence of these statutory provisions is that a particular series of operations must in planning terms be either a "material change in use"development or "a carrying out of works"development. But that is not so. To confine oneself to the facts of the present case, when people began to extract sand or gravel from this land before 1964 the land in question was no longer being used for agriculture, but for a form of industrial or quasi-industrial use: see the definition of "agriculture" in s.2 of the 1963 Act. However, since that process involved the "excavation" of sand or gravel from the land, it also constituted the carrying out of "works" within the meaning of s.2. Thus, applying the terminology adopted by Mr. Gallagher, this was both a "use development" and a "works development".

13 Mr. Gallagher relied on the decision in In re Viscount SecuritiesLimited ( 112 ILTR 17). In that case, it was held by the High Court (Finlay P as he then was) that a developer who was carrying out an extensive residential development on agricultural land in County Dublin was not deprived of his right to compensation in respect of the refusal on the ground that thedevelopment constituted a material change in the use of the land. (Under the compensation provisions of the 1963 Act, compensation is payable in respect of such a refusal, save where it is based on specific grounds (such as interference with amenity) or where the development would constitute "a material change in the use" of the land.) In a passage relied on by Mr. Gallagher, Finlay P said:-

"Broadly speaking, it seems to me possible to elucidate in particular from the provisions of s.3 of the Act, which defines development, and from the general provisions of the Act two broad categories of development. One consists of works in the sense as defined of building, demolition, extension, alteration, repair or renewal and the second category being a change of user excluding such change as emanates from the act of building, demolition, extension, alteration orrepair."

14 However, the learned President went on to point out that these two categories were "not necessarily always exclusive and sometimes inevitably overlapping..." It should also be remembered that the case was concerned with an entirely different subject, i.e. the right of a developer refused permission on admittedly compensatable grounds to be paid such compensation and the needto adopt a strict and, from one point of view, somewhat artificial construction of the relevant provisions so as to avoid a conflict with the private property provisions of the Constitution: see CentralDublin Development Association Limited & Ors. v. The AttorneyGeneral 109 ILTR 69 and East Donegal Co-operative v. AttorneyGeneral [1970] IR 317.

15 The decision, accordingly, does not, in my view, lend any support to the argument advanced on behalf of the developers in the present case. The activities on the land before October 1st, 1964 constituted both the carrying out of works and a material change in the use of the land. Since there was clear evidence on which the learned trial judge was entitled to find that the use in...