McCoy v Shillelagh Quarries Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Baker
• Judgment Date: 16 October 2015
• Neutral Citation: [2015] IEHC 838
• Docket Number: [2013 No.218 M.C.A.]
• Date: 16 October 2015

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 – 2011 AND IN THE MATTER OF AN APPLICATION OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

MICHAEL MCCOY AND SOUTH DUBLIN COUNTY COUNCIL

APPLICANTS

AND

SHILLELAGH QUARRIES LIMITED, JOHN MURPHY, DECLAN MURPHY, THOMAS MURPHY, SANDRA MURPHY AND (BY ORDER OF THE COURT) MICHAEL MURPHY

RESPONDENTS

AND

JOAN MURPHY

NOTICE PARTY

[2015] IEHC 838

Baker J.

[2013 No.218 M.C.A.]

THE HIGH COURT

Local Government – Planning & Development – The Planning and Development Acts 2000-2011 – S. 160 of the Planning and Development Act 2000 – Refusal of Board to grant planning permission

Facts: The first named applicant sought an order to the effect of restraining the respondents from carrying out the quarrying business from the subject lands. The second to sixth named respondents being the owners of the said lands contended that the aforesaid activities were being done prior to the appointed date of 1 October, 1964 and thus, there was no unauthorised use of the lands as claimed under s. 160 of the Planning and Development Act 2000, the statutory successor of the old. s. 27 of the Local Government (Planning and Development) Act 1963.

Ms. Justice Baker granted an order for the cessation of operations at the quarry. The Court observed that the decision of the Board under s. 5 of the Act of 2000 that the activity currently being carried on in the quarry was a development, which had been intensified to such an extent that it amounted to a material change of use, had rendered the development unauthorised by operation of law as there was no challenge to the said decision. The Court observed that the Court under s. 160 proceedings could not further scrutinise the decision of the Board as the jurisdiction vested in the Board was an exclusive jurisdiction. The Court held that before granting the relief sought, certain factors needed to be considered, which were the conduct, position and personal circumstances of the applicant as well as the respondent; the question of delay, if any; and public interest. The Court found that in the present case, despite the refusal of the Board, the respondents continued the quarrying business and demonstrated foul conduct. The Court held that it would be appropriate to put a restraint on the alleged quarrying activities in consonance with the EIA Directive and Habitat Directive for minimising the damage that had already been caused to the environment.

SUBSTANTIVE JUDGMENT of Ms. Justice Baker delivered on the 16th day of October, 2015

1 The first applicant brings these proceedings pursuant to s. 160 of the Planning and Development Act 2000, as amended (hereinafter ‘the Act’) for orders in respect of the operation of a quarry by the respondents at Aughafarrell, Brittas, Co. Dublin. Orders are sought that the respondents cease what is argued is the unauthorised user and/or unauthorised developments of the lands as a quarry. Certain other orders for reinstatement are sought.

2 The proceedings were instituted by a notice of motion dated 29th July, 2013 and South Dublin County Council was joined on its own application as second applicant by order made on 1st May, 2014.

3 Joan Murphy was originally named as the sixth respondent and by order made on 10th October, 2015 she was substituted by Michael Murphy as fifth respondent and added as a notice party. This occurred in the context of the assurance by Ms. Murphy of her interest in the subject lands to Michael Murphy.

4 Shillelagh Quarries Limited is a limited liability company incorporated in the State which operates a quarrying business from the subject lands. The second, third, fourth, fifth and sixth respondents are the owners of the lands comprised in Folio 3636 Co. Wicklow and the notice party is a former registered owner of these lands.

5 The respondents and the notice party were all represented by the same solicitors and counsel. The first and second named applicants were separately represented although each of them, to some extent, adopted the submissions of the other for the purposes of the proceedings.

6 The respondents claim that the works and activity carried on by them had commenced prior to the appointed day under the planning code, 1st October, 1964, and that there is no unauthorised development within the meaning of the Act. The respondents accept that they are not authorised by any grant of planning permission or development consent to carry on the business of a quarry from the lands, but claim that the use of the lands represents a proportionate working out of the quarry activity commenced before the appointed date.

7 The respondents also contend that the claim for an order is time barred and/or by way of a separate plea that the applicants were guilty of prolonged and unexplained delay, such that I ought to refuse the relief in the exercise of my discretion.

8 The claim is made under s. 160 of the Act, the statutory successor of the old s. 27 of the Local Government (Planning and Development) Act 1963 (hereinafter ‘the Act of 1963’) and it is accepted by counsel for all parties that the court retains a discretion to refuse relief under the statutory provisions, and the extent of that discretion is one matter that comes for consideration in this judgment.

9 There is a considerable body of European law on the protection of the environment and in particular, recent judgments of the Court of Justice of the European Union raise the question of whether the refusal of relief by the court in the exercise of this discretion had directly or indirectly the effect of circumventing the EU rules. That question also comes to be considered in this judgment.

Background facts

10 The applicant lives with his family approximately 1km from the quarry site at Shillelagh. He is a member of the Dublin Mountain Conservation Group which has as its stated role and objectives the preservation of the amenity, heritage and environment of the Dublin mountain area. His standing to bring these proceedings is not in issue and he has been active in his opposition, and in the making of legal challenges, to the operation of this quarry for a number of years. It should be noted also that through the Dublin Mountain Conservation Group he participated in judicial review proceedings already brought by Shillelagh Quarries Limited and also made a reference under s. 5 of the Act to An Bord Pleanála (the ‘Board’) seeking a declaration as to the status of the quarry.

11 It is also not disputed that quarrying activity has taken place at the subject site since before the appointed date of 1st October, 1964, but what is in issue is whether the present works and user development are a continuation of, or a wholly different development from, that then in place. The quarry was the subject matter of one of the most quoted and well known planning judgments of the Irish High Court, the judgment of Patterson v. Murphy [1978] ILRM 85 in which Costello J. held that as of the date of his judgment, the activities being carried on at the quarry were an intensification of use such that the activity no longer enjoyed the benefit of pre-1964 status, and amounted to a material change of use. The judgment of Costello J. will come to be considered later in this judgment. That litigation was inter personam and ultimately the order of Costello J. was vacated by order of the High Court made in 1999 after a compromise was reached between the parties. The quarrying activity on the site recommenced, or continued at the levels prior to the making of the injunction and that user has continued up to the present date.

The conduct of the case

12 As is provided in the Act the proceedings were brought by way of notice of motion grounded on affidavit, but certain affidavit evidence was cross examined following the service of notice to cross examine by both the first applicant and the respondent. The evidence was heard over a number of days and lengthy legal submissions were heard.

13 Because of the complexity of the case in the course of case management directions were made for the service of points of claim and points of defence. It is convenient to summarise these as follows:

1. The Claim

a) The applicants claim that the activity carried on the site is development, that it requires and does not have planning permission and that it is unauthorised,

b) that the s. 5 reference by which the Board decided that the operation was unauthorised is binding,

c) that the operation was intensified to such an extent from that in being before the 1st October, 1964 as to amount to a material change of use,

d) that the material change of use was an abandonment of previous use,

e) that Patterson v. Murphy establishes that an unauthorised development has occurred,

f) that the respondents may not challenge the decisions of the Board made on the 24th December, 2010, and

g) that the activity is a ‘gross and inappropriate non compliance’ with the planning code such that it should be restrained.

2. The defence

a) The respondents admit that they had no planning permission, but deny any intensification or material change of use,

b) deny in those circumstances that the operation is unauthorised,

c) plead that the claim is time barred, and deny abandonment,

d) that the judgment of Costello J. in Patterson v. Murphy ought not to guide my determination in that that Costello J. did not have before him accurate evidence as to pre-1964 user, that the quarry in operation in 1964 was not a ‘primitive horse and cart’ class of operation and that commercial activity had commenced prior to 1964. It is argued in that regard that I am not bound by the findings of fact by Costello J. in Patterson v. Murphy either because they were obiter dicta in the said judgment or that the findings of fact do...