Lackagh Quarries Ltd v Galway City Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine,
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IEHC 479
• Docket Number: 756 JR/2010
• Court: High Court
• Date: 21 December 2010

Lackagh Quarries Ltd v Galway City Council

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

LACKAGH QUARRIES LIMITED

APPLICANT

AND

GALWAY CITY COUNCIL

RESPONDENT

[2010] IEHC 479

756 JR/2010

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Extension - Refusal - Quarry - Rolled up hearing - Whether substantial grounds for review - Reasons for refusal - Whether application invalid for failure to disclose legal interest in lands - Whether obligation to notify applicant as to particulars required - Acceptance of application and fee - Whether respondent estopped from relying on absence of jurisdiction - Whether procedure applicable to permissions granted under repealed legislation - Role of planning authority - Onus on applicant to satisfy planning authority regarding compliance with section - Whether respondent took into account irrelevant considerations - Habitats Directives - Alleged failure to afford opportunity for submissions - Breach of fair procedures - Administrative decision - Whether High Court order precluded application for extension of time - Whether failure to satisfy planning authority that development to be completed within reasonable time - Whether incorrect test applied - Whether ground not advance in statement of grounds to be considered - Whether decision irrational - Whether relevant material to support decision - Whether right to apply for fresh permission amounted to adequate alternative remedy - Conduct of applicant - Discretionary remedy - State (McCoy) v Dun Laoghaire Corporation [1985] ILRM 533; Lavole and Carvida Limited v District Judge O'Donnell [2007] IESC 35, [2008] 1 IR 651; John A Wood Limited v County Council of the County of Kerry (Unrep, Smyth J, 31/10/1997); Garden Village Construction Company Limited v Wicklow County Council [1994] 3 IR 413; Frenchchurch Properties Limited v Wexford County Council [1992] 2 IR 268; McDowell v Roscommon County Council [2004] IEHC 396, (Unrep, Finnegan P, 21/12/2004); Littondale Limited v Wicklow County Council [1996] 2 ILRM 519; Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155; O'Keeffe v An Bord Pleanala [1993] 1 IR 39; State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 considered - Planning and Development Act 2000 (No 30), s 42 - Relief refused (2010/756JR - Irvine J - 21/12/2010) [2010] IEHC 479

Lackagh Quarries Limited v Galway City Council

Facts The applicant was the owner and operator of a large quarry in County Galway. An application was made pursuant to section 42 of Planning and Development Act, 2000 by the applicant to extend the duration ten-year planning permission it had received by virtue of a decision made by An Bord Pleanála some years previously. The condition as applied by An Bord Pleanála required that works should cease on the site after ten years and that the site be decommissioned and reinstated. The respondent refused the application on a number of grounds and the applicant contended that the refusal was based on invalid reasons and ought to be quashed. The respondent had based its refusal to grant the extension sought namely on four reasons: (a) The extension would be in conflict with the terms of the original planning permission. (b) An extension would be in conflict with the planning authority's obligations under various European Directives and Regulations (Council Directive 85/337/EEC, Council Directive 92/43/ECC and the European Communities (Natural Habitats) Regulations 1997). (c) Previous proceedings under s. 160 of the Planning and Development Act 2000, precluded the consideration of an extension, and (d) The planning authority was not convinced that the quarry could be exhausted within a "reasonable period" as required under s. 42 of the 2000 Act. The applicant maintained that the circumstances in which a planning authority must consider such application were tightly controlled by the provisions of s. 42(1) of the 2000 Act. The reasons relied upon by the respondent for refusing to grant the extension were irrelevant considerations and the decision therefore was invalid.

Held by Irvine J in refusing to grant the relief sought. The court had some doubt as to whether s. 42 of the 2000 Act was ever intended to apply to planning permissions pertaining to ongoing commercial enterprises such as quarrying. The primary purpose of s. 42 was to provide a method whereby structures, which were substantially completed at the expiry of a planning permission, could be completed. Notwithstanding these reservations, it was clear from the evidence in the case that the respondent accepted the application. If the respondent had formed the view that the terms of the original planning permission precluded its consideration of the application then it should have refused to accept the application as valid and this reason was therefore invalid. The respondent was not entitled to take into account the provisions of the European Directives when making its decision. The Directives in question had not been transposed in a manner in the State such as to permit the respondent to take these environmental considerations into account on a s. 42 application. The planning authority had very little discretion in relation to its decision, and its role appeared to be confined to satisfying itself as to whether the applicant has complied with the statutory conditions for the grant of an extension of time. The respondent was not entitled to take into account previous section 160 enforcement proceedings as a relevant consideration in making its decision. The onus was on the applicant to satisfy the planning authority that the development would be completed within a reasonable time. This was not a theoretical question permitting of an aspirational answer.The respondent, in reaching its decision, had taken into account irrelevant considerations; namely those matters set out as Reasons 1, 2 and 3 in its decision. The respondent had however lawfully decided that the applicant had failed to discharge the burden of proof of satisfying the respondent that the development would be completed within a "reasonable time", as was required under section 42(1)(c)(iii). The applicant had failed to show that the decision should be quashed.

Reporter: R.F.

PLANNING & DEVELOPMENT ACT 2000 S42

PLANNING & DEVELOPMENT ACT 2000 S50

EEC DIR 85/337

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S42(1)

MCCOY, STATE v DUN LAOGHAIRE CORP 1985 ILRM 533 1985/9/2447

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)

PLANNING & DEVELOPMENT ACT 2000 S42(1)(C)(iii)

PLANNING & DEVELOPMENT ACT 2000 S42(2)

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 42(D)

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S37G

EEC DIR 97/62

EEC REG 1882/2003

EEC DIR 2006/105

EEC DIR 19/409

EEC DIR 2009/147

EEC DIR 1997/11

PLANNING & DEVELOPMENT ACT 2000 S28

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 8

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 45(1)(B)

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 44

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 44(2)(B)

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 42

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 45(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 207

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S6(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 207(2)

INTERPRETATION ACT 2005 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4

PLANNING & DEVELOPMENT ACT 2000 S265

INTERPRETATION ACT 2005 S26

INTERPRETATION ACT 1937 S20(1)

LAVOLE & CARVIDA LTD v JUDGE O'DONNELL & ORS 2008 1 IR 651 2007/34/6997 2007 IEHC 35

JOHN A WOOD LTD v KERRY CO COUNCIL UNREP SMYTH 31.10.1997 1998/34/13370

PLANNING & DEVELOPMENT ACT 2000 S3

GARDEN VILLAGE CONSTRUCTION CO LTD v WICKLOW CO COUNCIL 1994 3 IR 413

FRENCHURCH PROPERTIES LTD v WEXFORD CO COUNCIL 1992 2 IR 268 1991 ILRM 769 1991/9/1984

MCDOWELL & BRENNAN v ROSCOMMON CO COUNCIL UNREP FINNEGAN 21.12.2004 2004/34/7820 2004 IEHC 396

PLANNING & DEVELOPMENT ACT 2000 S42(1)(C)(i)

PLANNING & DEVELOPMENT ACT 2000 S42(1)(C)(ii)

LITTONDALE LTD v WICKLOW CO COUNCIL 1996 2 ILRM 519 1996/13/4018

PLANNING & DEVELOPMENT ACT 2000 S42(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S42(1)(B)

PLANNING & DEVELOPMENT ACT 2000 S42(1)(C)

EEC DIR 92/43 ART 6

EEC DIR 92/43 ART 6(3)

EEC DIR 92/43 ART 6(4)

EUROPEAN COMMUNITIES (NATURAL HABITATS) (AMDT) REGS 1998 SI 233/1998

EUROPEAN COMMUNITIES (NATURAL HABITATS) (AMDT) REGS 2005 SI 378/2005

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 PART IV

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 ART 27

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S3

EEC DIR 2003/35 ANNEX II

R v CHIEF CONSTABLE OF NORTH WALES POLICE, EX PARTE EVANS 1982 1 WLR 1155 1982 3 AER 141

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(C)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(C)(i)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(C)(iii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(C)(ii)

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)(A)

PLANNING & DEVELOPMENT ACT 2000 S173(2)(A)

1 Judgment of Ms. Justice Mary Irvine, dated the 21st day of DEC, 2010

2 1. The within proceedings concern the lawfulness of a decision made by the respondent on the 16 ^th April, 2010, ("the decision") whereby it refused an application made by the applicant pursuant to s. 42 of the Planning and Development Act 2000, as amended, ("the 2000 Act") to extend the life of a planning permission...