M & F Quirke & Sons and Others v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 06 October 2009
• Neutral Citation: [2009] IEHC 426
• Court: High Court
• Date: 06 October 2009

M & F Quirke & Sons & Ors v Bord Pleanála & Ors

Between

M. & F. Quirke and Sons

And

David O'Connor

Applicants

And

An Bord Pleanála, Ireland And The Attorney General

Respondents

And

Kerry County Council

Notice Party

Between

Martin Corduff

Applicant

And

An Bord Pleanála

Respondent

M & F Quirke & Sons & Ors v Bord Pleanála & Ors

And

Meath County Council

Notice Party

Between

John A. Wood Limited

Applicant

And

An Bord Pleanála

Respondent

And

Cork County Council

Notice Party

[2009] IEHC 426

[No. 766 J.R./2008]

[No. 693 J.R./2008]

[No. 395 J.R./2008]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Quarry

Permission - Conditions attaching to grant - Conditions limiting blasting and depth of extraction - Conditions requiring that quarrying should cease before specified time - Irrationality - No provision for payment of compensation - Whether conditions ultra vires - Locus standi - Whether failure to give reasons - Whether fair procedures - Whether conditions void for uncertainty - O'Keefe v An Bord Pleanála [1993] 1 IR 39 applied; Waterford County Council v John A Wood Ltd [1999] 1 IR 556, State (FPH Properties SA) v An Bord Pleanála [1987] IR 698, Ashbourne Holdings Ltd v An Bord Pleanála [2003] 2 IR 114, Pyx Granite and Company Ltd v Ministry of Housing and Local Government [1958] 1 QB 554, Central Dublin Development Association v Attorney General [1975] ILTR 69, Re Planning and Development Bill 1999 [2000] 2 IR 321, Re Health Amendment (No 2) Bill 2004 [2005] IESC 7[2005] 1 IR 105, Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306[2006] 1 IR 453, Grealish v An Bord Pleanála [2006] IEHC 310[2007] 2 IR 536, Weston v An Bord Pleanála [2008] IEHC 71[2008] 2 ILRM 542, Deerland Construction Limited v Acquaculture Licences Appeal Board [2008] IEHC 289[2009] 1 IR 673 and NíÉilí v Environmental Protection Agency [1999] IESC 64 (Unrep, SC, 30/07/1999) considered - Planning and Development Act 2000 (No 30), ss 7, 50A, 128 and 216 - Local Government (Planning and Development) Act 1963 (No 38), ss 3 and 24 - Constitution of Ireland, Arts 40.3.2 and 43 - Relief refused (2008/766JR, 693JR & 395JR - O'Neill J - 6/10/2009) [2009] IEHC 426

M&F Quirke and Sons v An Bord Pleanála

Facts section 261 of the Planning and Development Act 2000 introduced a system of registration for quarries and subsection 6 thereof authorised the imposition of conditions on the operation of a quarry which had commenced operations prior to 1964 and which had been previously granted planning permission.Section 261(7) requires the making of a fresh application for planning permission for certain extant quarries which are over a threshold size or are located within a nature conservation area and compensation is provided for in subsection 8 where such permission is refused or conditions are attached under subsection 7. The applicants were all owners of quarries which had been in operation prior to 1964. They had been granted leave to apply, inter alia, for orders of certiorari quashing the decisions of the respondent to impose various conditions upon them pursuant to section 261(6) of the Planning and Development Act 2000, in relation of the operation of quarries in various locations in the State. They submitted that the imposition of the conditions, principally the prohibition of blasting, would make the operation of the quarries so onerous as to lead to the cessation of quarrying thereon. They also contended that the decision to impose conditions under subsection 6 rather than 7 was unlawful, unfair and irrational as it meant that they were not entitled to apply for compensation therefor.

Held by Mr. Justice O'Neill in refusing the relief sought that, as blasting was merely a method of extraction, it could not be considered to be synonymous with or an integral part of an existing right to quarry and, as such, was an activity that could be controlled under section 261 of the Act of 2000. Property rights, as protected by the Constitution, were not absolute and the power of the State to regulate the use of land was a recognized fetter on that right. It could never be said that there was an unrestricted right to use property for any activity, including quarrying, regardless of the effects that activity had on the enjoyment of other persons of their lives, health and properties. Not all interferences with property rights would require compensation to be paid to ensure constitutional legitimacy. Compensation would be required in circumstances where property was wholly expropriated or where the bundle of rights which constituted ownership were substantially taken away but lesser interferences with the right to private property would not require compensation. The absence of a proviso for compensation in section 261(6) of the Act of 2000 was not a material consideration in arriving at the construction of section 261(6) as the mere requirement to obtain planning permission could not, per se, be said to injure property rights to an extent sufficient to warrant compensation. Neither could the imposition of conditions necessary for proper planning and sustainable development give rise to a right to compensation. In Re Part V of the Planning and Development Bill 1999 [2000] 2 I.R. 321 considered.

That, in the absence of a description of the types of conditions to be imposed in section 261(6) of the Act of 2000 and in light of the wide criteria under which conditions could be imposed, the conditions that could be imposed on the operation of quarries could encompass the wide spectrum of the various normal planning concerns as these were likely to be affected by the works carried out at a given quarry in its particular location.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S50A(9)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S261(6)

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S261(1)

PLANNING & DEVELOPMENT ACT 2000 S261(13)

PLANNING & DEVELOPMENT ACT 2000 S7

PLANNING & DEVELOPMENT ACT 2000 S261(2)

PLANNING & DEVELOPMENT ACT 2000 S261(3)

PLANNING & DEVELOPMENT ACT 2000 S261(4)

PLANNING & DEVELOPMENT ACT 2000 S261(5)

PLANNING & DEVELOPMENT ACT 2000 S261(7)

PLANNING & DEVELOPMENT ACT 2000 S261(8)

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S261(9)(A)

PLANNING & DEVELOPMENT ACT 2000 S261(9)(B)

PLANNING & DEVELOPMENT ACT 2000 S261(10)

WATERFORD CO COUNCIL v JOHN A WOOD LTD 1999 1 IR 5561999 1 ILRM 217 1998/34/13063

FPH PROPERTIES SA, STATE v BORD PLEANALA 1987 IR 698

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 1142003 2 ILRM 446 2003/3/564

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43

PYX GRANITE CO LTD v MINISTRY OF HOUSING 1958 1 QB 5541958 2 WLR 371 1958 1 AER 625

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 391992 ILRM 237

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION v AG 1975 109 ILTR 69

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, IN RE 2000 2 IR 3212001 1 ILRM 81 2000/16/5933

ART 26 OF THE CONSTITUTION & HEALTH (AMDT)(NO 2) BILL 2004, IN RE 2005 1 IR 1052005 IESC 7

PLANNING & DEVELOPMENT ACT 2000 S197

MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 4532006 1 ILRM 287 2005/40/8371 2005 IEHC 306

GREALISH v BORD PLEANALA 2007 2 IR 536 2006/27/5728 2006 IEHC 310

WESTON v BORD PLEANALA 2008 2 ILRM 542 2008/61/12702 2008 IEHC 71

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNICATIONS UNREP KELLY 9.9.2008 2008/11/2331 2008 IEHC 289

NI EILI v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

PLANNING & DEVELOPMENT ACT 2000 S128(B)

PLANNING & DEVELOPMENT ACT 2000 S130

MULHAIRE v BORD PLEANALA & ELECTRICITY SUPPLY BOARD UNREP BIRMINGHAM 31.10.2007 2008/43/9354 2007 IEHC 478

CICOL LTD v BORD PLEANALA UNREP IRVINE 8.5.2008 2008/7/1231 2008 IEHC 146

1. Relief Sought

2 1.1 Leave was granted to the applicants in the first set of proceedings by this Court on the 26 ^th May, 2008, to seek inter alia the following reliefs:-

1 An order of certiorari quashing the decision of the first named respondent, dated the 14 ^th December, 2007, whereby the respondent confirmed with modifications the decision of Kerry County Council made on the 6 ^th 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.

3 1.2 Leave was granted in the second set of proceedings by this Court (Hanna J.) on the 14 ^th 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 22 ^nd April, 2008.

2 An order of certiorariquashing condition no.3 as imposed by the respondent on the continued operation of the applicant's quarry in its decision dated the 22 ^nd April, 2008.

3 In the alternative and only if necessary an order of certiorari quashing the decision of the respondent dated the 22 ^nd April, 2008, on an appeal against certain...