M. & F. Quirke and Sons & Ors -v- An Bord Pleanála & Ors,  766 JR (2009)
|Docket Number:||2008 766, 693 & 395 JR|
|Party Name:||M. & F. Quirke and Sons & Ors, An Bord Pleanála & Ors|
THE HIGH COURT2008 766 JRBetweenM. & F. Quirke and SonsAndDavid O'ConnorApplicantsAndAn Bord Pleanála, Ireland AndThe Attorney GeneralRespondentsAndKerry County CouncilNotice Party2008 693 JRBetweenMartin CorduffApplicantAndAn Bord PleanálaRespondentAndMeath County CouncilNotice Party2008 395 JRBetweenJohn A. Wood LimitedApplicantAndAn Bord PleanálaRespondentAndCork County CouncilNotice PartyJudgment of O'Neill J. delivered the 6th day of October 2009.1. Relief Sought1.1 Leave was granted to the applicants in the first set of proceedings by this Court on the 26th May, 2008, to seek inter alia the following reliefs:-1. An order of certiorari quashing the decision of the first named respondent, dated the 14th December, 2007, whereby the respondent confirmed with modifications the decision of Kerry County Council made on the 6th March, 2007, to impose conditions on the operation of a registered quarry on lands at Ballymacadam, Castleisland, Co. Kerry, owned by the second named applicant and directing the said council to attach conditions numbers 4, 6 and 29, to remove conditions numbers 2, 3 and 7 and to amend conditions 5 and 30.2. Further or in the alternative, an order pursuant to s.50A (9) of the Planning and Development Act 2000, as inserted by s.13 of the Planning and Development (Strategic Infrastructure) Act 2006 declaring to be invalid and/or quashing that part of the said decision whereby the first named respondent directed Kerry County Council to attach condition no.29 to the operation of the said quarry at Ballymacadam, Castleisland, Co. Kerry.1.2 Leave was granted in the second set of proceedings by this Court (Hanna J.) on the 14th July, 2008, for the applicant to seek the following reliefs:-1. An order of certiorari quashing condition no.2 imposed by the respondent on the continued operation of the applicant's quarry, in its decision dated the 22nd April, 2008.2. An order of certiorari quashing condition no.3 as imposed by the respondent on the continued operation of the applicant's quarry in its decision dated the 22nd April, 2008.3. In the alternative and only if necessary an order of certiorari quashing the decision of the respondent dated the 22nd April, 2008, on an appeal against certain conditions imposed by the notice party on the continued operation of the applicant's quarry pursuant to s.261(6) of the Planning and Development Act 2000.4. Consequent on the making of an order in the terms of no.3 above, an order remitting the appeal to the respondent for reconsideration in the light of the findings of the High Court.5. A declaration that the respondent erred in its interpretation of the provisions of the Department of the Environment's Quarries and Ancillary Activities Guidelines for Planning Authorities, April 2004. In particular and without prejudice to the generality of the foregoing, a declaration that the respondent erred in applying the provisions of Chapter 4 of the guidelines and in particular section 4.9 relating to the life of planning permissions to a quarry registered under s.261(6) of the Planning and Development Act 2000.6. A declaration that the respondent acted ultra vires and erred in law in imposing, pursuant to s. 261(6) of the Planning and Development Act 2000, conditions on the operation of the quarry the effect of which was to require the immediate cessation of quarrying activities in fields which were being excavated at the time of registration of the quarry under s.261.7. A declaration that the respondent acted ultra vires and erred in law in imposing pursuant to s.261(6) of the Planning and Development Act 2000 conditions which prevent the applicant from continuing to natural completion excavation works which commenced prior to the 1st October, 1964.1.3 In the third set of proceedings leave was granted by this Court (MacMenamin J.) on the 28th April, 2008, for the applicant to seek the following reliefs:-1. An order of certiorari quashing the decision of the respondent dated the 13th February, 2008.2. In the alternative, an order remitting the application, planning register reference QR03, An Bord Pleanála reference 04.QC.2009, to the respondent for the application to be determined in accordance with law.3. An order deleting condition 66(1) from the decision of the respondent dated the 13th February, 2008.4. An order deleting from the decision of the notice party any reference to the matters contained at condition 66(1).5. A declaration that the respondent in determining the application failed to have regard to the statutory scheme set out in the Planning and Development Act 2000 and misapplied the relevant statutory provisions insofar as they applied to the applicant's development as it was carried out and is currently operated.6. An order severing condition 66(1) from the remainder of the decision of Cork County Council as directed by the decision of the respondent dated the 13th February, 2008.1.4 In all three cases the applications for leave were unopposed. All three cases concern conditions imposed on the applicants' quarries pursuant to s. 261(6) of the Planning and Development Act 2000 ("the Act of 2000").2. Facts in the first proceedings2.1 The second named applicant is the owner of lands, 2.7 kilometers east of Castleisland, County Kerry at Ballymacadam. The first named applicant holds a licence in respect of these lands to operate a quarry. The quarry commenced operation before the 1st October, 1964. It was claimed by the applicants that the quarry enjoyed the benefit of existing land use rights for quarrying purposes, which included, inter alia, blasting methods of extraction, as these were employed prior to that date and for a number of years thereafter.2.2 The application for registration of this quarry was lodged with the notice party by Munster Limestone Ltd. on the 21st April, 2005. A decision was taken by the notice party on the 6th March, 2007, to impose conditions on the operation of the quarry, including, inter alia, condition no.29 which stated that:-"No blasting operations shall take place on this site.Reason: In the interest of protecting local amenities, local property and public safety". 2.3 The applicants appealed the imposition of certain conditions imposed by the notice party, including the above condition. In its decision dated the 14th December, 2007, the above condition was attached or upheld by the respondent. The respondent also amended two conditions and removed three conditions that had been imposed by the notice party. In the section headed "Reasons and Considerations" it was stated as follows:-"Having regard to the provisions of Section 261 of the Planning and Development Act, 2000 and to the pre-1964 status of the quarry, it is considered that the conditions to be attached and amended are necessary to control the extent, operation and reinstatement of the quarry so as to protect the environment and in the interest of the proper planning and sustainable development of the area."2.4 In the third party submission of Mr. T.J. Brennan dated the 24th April, 2007, (and marked received by the respondent the next day) in respect of the appeal, twelve affidavits from local residents were enclosed which averred that blasting had not taken place at the quarry during their lifetimes (one of the residents has been living in the area since 1940). A report from Malachy Walsh and Partners, Consulting Engineers, was also included in this submission. In opposition to this, three statutory declarations had been submitted by the applicants to the notice party describing recollections of blasting taking place at the quarry. These were forwarded to the respondent. The respondent's inspector concluded that, as a matter of fact, blasting had not taken place on the site for several years before the coming into force of s.261 of the Act of 2000 on the 28th April, 2004, thereby selecting this date as the relevant reference point for assessing the activities of a quarry operator. In his report to the respondent dated the 19th August, 2007, he stated as follows:-"In my opinion the range of submissions made during the Registration process would seem to indicate that an activity such as blasting did not occur on the site for several years prior to the coming into operation of Section 261 so that the imposition of this condition is reasonable and appropriate. The initiation of a programme for blasting represents a significant expansion of operations and consequently requires planning permission in the normal manner."As stated, the decision of the respondent was made on the 14th December, 2007, and included inter alia condition no.29. These proceedings were initiated on the 14th February, 2008. A constitutional challenge to s.261 of the Planning and Development Act 2000 was withdrawn.3. Facts in the second proceedings3.1 The applicant operates a quarry on lands at Ardmulchan, County Meath. He owns lands which have an area of approximately 22 acres and he holds a licence to use approximately 38 acres of adjoining lands for quarrying excavation. The total area of the lands is approximately 60 acres. These 60 acres used to be held in single ownership and as of the 1st October, 1964, they comprised a single planning unit. It was agreed that quarrying activities had been carried out continuously on these lands prior to and since the 1st October, 1964.3.2 The application for registration of the quarry pursuant to s.261 of the Act of 2000 was made to the notice party on the 14th April, 2005. By letter dated the 28th March, 2007, the notice party wrote to the applicant imposing 23 conditions on the operation of the quarry. The applicant took issue with conditions nos. 2 and 3, in particular, which imposed conditions relating to the time in which planning permission would have to be sought and the area of the quarry where quarrying could take place, respectively. The applicant appealed the decision of the notice party to the respondent on the 24th April, 2007. The...
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