Kildare County Council v Goode

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 13 June 1997
• Neutral Citation: [1997] IEHC 95
• Court: High Court
• Docket Number: No. 45 M.C.A./1996
• Date: 13 June 1997

[1997] IEHC 95

THE HIGH COURT

No. 45 M.C.A./1996

KILDARE CO. COUNCIL v. GOODE

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACT,1976 AS AMENDED AND EXTENDED

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE

APPLICANT

AND

THOMAS P. GOODE AND THERESA GOODE AND GOODE CONCRETE LIMITED

RESPONDENTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

PATTERSON V MURPHY 1978 ILRM 85

VISCOUNT SECURITIES LTD, IN RE 1978 112 ILTR 112

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(1)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(1)(b)

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(6)(b)(1)

COUNTY MANAGEMENT ACT 1940 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(6)(a)(ii)

COUNTY MANAGEMENT ACT 1940 S19(8)

MORRIS V GARVEY 1983 IR 319

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(2)

Synopsis:

Planning

Injunction; development; periods of abandonment; order sought pursuant to s.27 Local Government (Planning and Development) Act, 1976; restraining use of lands for purpose of extracting gravel; whether order restraining use inappropriate as activities constituted development; whether development exempted due to commencement prior to 1964; whether application brought within five years of commencement of unauthorised use; whether adequate proof of County Manager's order Held: Order granted High Court: Morris J. 13/06/1997

Kildare C.C. v. Goode

Mr. Justice Morris

1 This matter comes before the Court as an Application under Section 27 of the Local Government (Planning and Development) Act,1976as amended and extended.

2 The Respondents are extracting sand and gravel from a pit on lands at Broadleas, Ballymore Eustace in the County of Kildare. Issues have arisen as to the Respondents” entitlement to do so. However, before embarking on those issues a fundamental preliminary issue has arisen in this case which I am of the view should be determined before going further. This issue arises from the Respondents challenging the Applicant's Notice of Motion. The Respondents submit that even if everything alleged by the Applicant is correct then what would have been established is that they are carrying out a "development" on the lands without permission. They allege that they are not "using" the lands within the meaning of the Local Government (Planning and Development) Act. They allege that since the Applicant seeks an Order restraining them from "using" the lands that the proceedings are misconceived and that the Court should refuse the Application.

3 The following is a summary of the facts in so far as they are relevant to the preliminary issue.

4 The lands in question comprise approximately 56 acres and were acquired by the Respondents at auction on or about the 12th March, 1991. The sale was completed on or about the 26th /27th April, 1991. A sand and gravel pit was believed to have existed on the lands prior to the auction and on completion the Respondents stripped back the top soil and commenced to extract sand and gravel from the lands.

5 The lands are situate in an area of high amenity and of scenic beauty and complaints were received by the Applicant from residents in the locality. On 29th April, 1991, Mr. Gerard Roche who is in the Applicant's Planning Section inspected the lands and spoke to Mr. Goode, the first named Respondent. On 30th April, 1991 a warning notice under Section 26 of the 1976 Act was served on the Respondents and on 1st May, 1991a letter was received from Mr. Goode in which he made the following comments:-

6 2 "(1) I am confirming the established use of a gravel pit at Broadleas, Ballymore Eustace, Co. Kildare. The essence of a gravel pit has been there and indeed used on and off since the 1930's.

7 (2) I am in the process of tidying up the gravel pit at the moment so that it can become usable and manageable.

8 (3) If and when I extend the pit or erect offices I will of course apply for planning permission as it is necessary.

9 In the meantime I am preparing an Application for an extension of some 7 to 7½ acres. This ought to be lodged with the Council within the next fortnight."

10 An Application for planning permission was made on the Respondents behalf on 7th February, 1992. This permission was refused on the 2nd April, 1992. There was no appeal from this refusal.

11 The extraction of sand and gravel from the lands was discontinued by the Respondents until April of 1995 when work recommenced and on inspection a mechanical shovel and screen were found to be in use on the lands. On 6th June, 1995 a second warning notice was served on the Respondents.

12 By Notice of Motion dated 27th May, 1996 the Applicant applied to the Court for an Order:-

13 a "(a) Restraining the Respondents from using the lands at Broadleas, Ballymore Eustace in the County of Kildare the subject matter of the proceedings;

14 (i) for the purpose of extracting sand, gravel and other materials therefrom;

15 (ii) from continuing the preparation of the said lands for the aforesaid purpose;

16 (iii) for the constructing on the said lands of artificial berm;

17 (iv) from carrying out work incidental to the preparation and construction of the use of the lands for the purpose of winning, preparing, extracting and removal of sand and gravel and such like materials from the said land.

18 (b) Directing the Respondents to remove from the said lands a substantial quantity of concrete blocks which have been deposited on the lands.

19 (c) Directing the Respondents to replace top soil which has been removed along the southern boundary of the said lands and to remove two signs which have been erected at the junction of the adjoining public road with the lane-way which leads to the said lands and at a new recessed entrance constructed on the said lands and the said entrance.

20 (d) Directing the Respondents to re-instate the said lands to the condition in which they were prior to the commencement of the unauthorised use which is and has been made of the said lands.

21 (e) Directing the Respondents to pay the Applicant's costs and expenses of the proceedings.

22 (f) And for such further and other Order as the Court may seem fit."

23 The submission made by Counsel on behalf of the Respondents can, I believe, be summarised as follows:-

24 It is submitted that Section 27 of the Act as amended by the Local Government (Planning and Development) Act,1992enables a Planning Authority or any other person to seek an Order from the High Court or the Circuit Court where:-

25 a "(a) Development of land, being a development for which a permission is required under Part 4 of the principal, Act has been carried out or is being carried out without such permission, or

(b) an unauthorised use is being made of the land."

26 It is the submission of Counsel on behalf of the Respondent that if there is an unauthorised taking of sand and gravel from this land then this amounts to an unauthorised development of the land and not an unauthoriseduse. Accordingly, since the Applicant has sought an Order restraining the Respondent from "using" the lands for the purpose, they have sought the relief under the wrong subsection.

27 In my view, the law on this aspect of the case is well settled. InPatterson -v- Murphy, 1978 I.L.R.M. p.85 at p.104,Costello J. refers to the "two distinct and separate situations" envisaged by Section 27. They are:-

(a) Where development is being carried out without permission, and

28 (b) Where an unauthorised use is being made of land.

29 He goes on to refer to the decision of Finlay J., as he then was, inIn Re: Viscount Securities Limited 112 I.L.T.R. 17where it is pointed out that the words "development" and "use" have been given an artificial meaning by Section 2 of the Act of 1963 and goes on:

"As it does not include, when used in relation to land, the carrying out of “works” on land, and as “works” includes any act or operation of excavation, it follows that if the use of a field is changed from say tillage to quarrying this does not amount to a change of use for the purpose of the 1963 Act. Such a change of use would, of course, amount to a “development” as defined by Section 3. It would come within the first limb of the definition as it would constitute the carrying out of “works” on the land.

On the facts in the present case, therefore, it seems to me that because of this artificial definition it cannot be successfully contended that there has been an "unauthorised use" in relation to the quarry field and that the Applicant's claim under Section 27 falls to be considered under subsection (1)(a) rather than under subsection (1)(b) of the section."

30 I respectively agree with the Judgment of the President of the High Court. If therefore the Applicant had sought an injunction restraining the "unauthorised use" of the land or if they had sought relief under Section 27(1)(b) of the land, the Notice of Motion would have been inappropriate. However, this is not what they have done. What they have done is to seek an Order restraining the Respondents fromusing the lands

31 (1) For the purpose of extracting sand and gravel.

32 (2) From continuing the preparation of the lands for the aforesaid purpose.

33 (3) From constructing on the lands an artificial berm.

34 (4) From carrying out work incidental to the preparation and construction of the use of the land for the purpose of winning, preparing, extracting and removing of sand and gravel and such like matters from the land.

35 These four activities described are, in my view, a classic description of the "development" of the land which, if carried out without permission, or unless exempted, would be prohibited.

3...