Mason and McCarthy v KTK Sand and Gravel Ltd
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 07 May 2004 |
| Neutral Citation | [2004] IEHC 183 |
| Court | High Court |
| Docket Number | RECORD NO. 2003/52/MCA |
| Date | 07 May 2004 |
[2004] IEHC 183
THE HIGH COURT
AND
BETWEEN
AND
Citations:
PLANNING & DEVELOPMENT ACT 2000 S160
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2(2)(B)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2(1)
PYX GRANITE COMPANY LIMITED V MINISTER OF HOUSING 1958 1 QB 554
READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974
CARRICK HALL HOLDINGS V DUBLIN CORPORATION 1983 ILRM 268
XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION 1987 ILRM 659
KENNY V BORD PLEANALA 2001 1 IR 565
WESTPORT UDC V GOLDEN & ORS 2002 1 ILRM 439
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2(2)(B)(II)
LENNON & KINGDOM PLANT HIRE LIMITED UNREP MORRIS 13.12.1991 (TRANSCRIPT UNAVAILABLE)
BUTLER V DUBLIN CORPORATION 1999 1 IR 565
KILDARE CO COUNCIL V GOODE CONCRETE 1999 2 IR 495 2000 1 ILRM 346 1999/15/4341
PATTERSON V MURPHY 1978 ILRM 85
WESTMEATH CO COUNCI V QUIRKE & SONS UNREP BUDD 23.5.1996
DUBLIN CO COUNCIL V SELLWOOD QUARRIES LTD 1981 ILRM 23
MOLUMBY V KEARNS & ORS UNREP O'SULLIVAN 19.1.1999 1999/18/5619
DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD 1982 ILRM 534
WEXFORD CO COUNCIL V WOOD LTD 1999 1 IR 556
GALWAY CO COUNCIL V LACKRAGH ROCK 1985 IR 120
MONAGHAN CO COUNCIL V BROGAN 1987 IR 333
R V DERBYSHIRE CO COUNCIL EX PARTE NORTH EAST DERBYSHIRE CO COUNCIL 1977 77 LGR 389 1980 JPL 398
R V SURREY CO COUNCIL & A & J BULL (SOUTHERN) LTD EX PARTE MONK 1986 53 P & CR 410
IRLAM BRICK CO V WARRINGTON BOROUGH COUNCIL 1982 JPL 709
MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64
CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1
MORRIS V GARVEY 1983 IR 319
WASTE MANAGEMENT ACT 1986 S54(4)(A)
VISCOUNT SECURITIES LTD V DUBLIN CO COUNCIL 1978 112 ILTR 17
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
LEEN V AER RIANTA 2003 4 IR 394
Injunction - Planning permission - Intensification of use - Planning and Development Act, 2000 - Whether the respondents had obtained planning permission or were required to obtain planning permission for the works being carried out on their land.
The respondents obtained planning permission for development of an extension to their existing sand and gravel pit subject to a number of conditions. The applicants, who lived in close proximity of the respondent’s lands submitted that the planning permission granted to the respondents had a three year limitation period and as the time had now expired and no application had been made to extend it, there was no planning permission in existence authorising the works carried out on the said lands. Accordingly, the applicants sought orders pursuant to section 160 of the 2000 Act prohibiting the respondents from carrying out works at the site and depositing waste material on the aforementioned lands.
Held by Smyth J. in granting the relief sought by the applicants:
1. That a different and more intense activity was being carried out by the respondents on the site in question and that activity, which was in the nature of landfill, was materially different from a planning perspective to the activity envisaged and authorised by the planning permission granted to the respondents.
2. That the proposed and existing use of the land as a landfill site was not the subject of the planning permission and was not reasonable incidental either to the primary purpose of such use, for which permission was obtained, or incidental to the conditions attached thereto.
Reporter: L.O’S.
I hereby certify the above judgment to be a true and accurate transcript of my stenograph notes in the above-named judgment
In these proceedings the Applicants seek orders pursuant to Section 160 of the Planning and Development Act,2000for:
(a) an order prohibiting the Respondents, by themselves their servants or agents, from carrying out works on lands which are located at Kimmeens Sand and Gravel Facility at Ballymore Eustace in the County of kildare;
(b) an order prohibiting the deposition of waste material on lands situate at Kimmeens Sand and Gravel Pit at Ballymore Eustace in the County of Kildare or from making any use of same for waste disposal unless and until permission pursuant to the planning and Development Act,2000has first been obtained;
(c) an order prohibiting any further works in relation to the development of sand and gravel at Ballymore Eustace in the County of Kildare, and or from using the said lands for waste disposal or keeping any deposits of waste on same unless and until planning permission for the aforesaid works and or use has first been obtained;
(d) an order restoring the land to its original condition and the removal of all plant and equipment from the land.
Interim and interlocutory relief is also sought.
The Applicants live in reasonably close proximity to lands of the Respondent at Ballymore Eustace in the County of Kildare. The lands of the Respondent comprise of approximately 43 acres, which for convenience can be referred to as being in approximately three equal divisions referred to in the maps and plans submitted to the Court as Areas 1, 2 and 3 respectively. Area 1 appears to have been a sand and gravel pit which was operated and used prior to the coming into effect of the Local Government (Planning and Development) Act,1963and accordingly has been generally and will be generally in this judgment referred to as having a pre-Act user. Planning permission was granted for the development of Area 2 consisting of an extension to an existing sand and gravel pit which location was given as Kimmeens, Ballymore Eustace in the County of Kildare and the permission was granted by Kildare County Council subject to a number of conditions - Planning Register Reference is 1332/1980 and is dated 9th November, 1982.
The case of the Applicants is that the planning permission had a three year limitation period and therefore would have expired in th November, 1985. A check at the planning office has indicated that no application was ever made to extend the appropriate period of the permission and therefore there is no planning permission extant authorising any works to be carried out on the said lands. Given that it is central to considerations advocated during the course of the case it is of importance to quote its conditions in full.
The application was made pursuant to Section 26 of the Local Government (Planning and Development) Act,1963and the regulations made thereunder for the development of lands at kimmeens, Ballymore Eustace, in the County of Kildare, to "extend existing sandpit into adjoining field". A copy of this permission appears as Appendix 1 to this judgment.
The Applicants' case was that Condition 2 of the permission dictated that the use of the land for the purpose of sand and gavel was to cease from the expiration of three years from the date of the order, and that even if works were carried out on the lands within a five year period, the use of the land must cease or must have ceased on or before 18th November, 1985. Since the date of the institution of proceedings the site has been the subject of major works consisting of the creation and manufacture of large berms of deposits of soil, a deepening in expansion of the existing pit area in the construction of various works of engineering to include, roadways, office structures, pit linings and other deposition of material on the site. The use and movement of machinery and otherwise in the submissions of the Plaintiff included a massive intensification of use and this appears to have been carried out under or by virtue of a licence issued to the Respondents under the Waste Management Act,1996. The licence was granted on 27th July, 2002 and allows for the recovery of land at the site the subject matter of the proceedings. On foot of an application by the Respondent for a "licence for the operation of an inert landfill in a disused sand and gravel quarry. The types of waste to be accepted are C and D material and the annual waste intake is limited to a maximum of 242,000 tonnes. The facility will have a maximum waste intake of 1,885,000 tonnes." A permit referable to the site was issued by kildare County Council on 20th June, 2000, a note was attached thereto which reads as follows: -
"The granting of this permit, and any condition imposed by it, does not exempt the holder of the permit from complying with the statutory obligations of any relevant legislation, including water pollution, air pollution, waste, litter and planning legislation."
There is no dispute concerning the fact that no planning permission was sought for the enterprise the subject of the licence. No planning application has been lodged for the use of the land as a landfill site and the plaintiffs submit that no permission would be granted by virtue of the zoning of the land in an area which is and remains a high amenity area adjacent to Ballymore Eustace which has a status as “special” village.
The submissions of the Applicant are that if the works have been carried out pursuant to the 1980 planning permission they ought not to be carried out because the said permission has expired. Secondly they submit that if the works are being carried out pursuant to the waste disposal licence the activities are unauthorised as no planning permission has been granted for the activity and even if there is an existing sand and gravel facility on site which they disputed the use part of which has not been abandoned, they submit, and that there was no authorised use and that there was an...
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