McGrath Limestone Works Ltd -v- An Bord Pleanála, [2014] IEHC 382 (2014)

Parts:McGrath Limestone Works Ltd, An Bord Pleanála
Reporting Judge:Charleton J.
Docket Number:2014/40 COM
 
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An Ard Chúirt

The High Court

Commercial2014/40 COM

Between

McGrath Limestone Works LimitedApplicantand

An Bord PleanálaRespondentand

Ireland and the Attorney GeneralRespondentand

Mayo County CouncilRespondentand

Andrew Fleming and the Human Rights CommissionNotice Parties

Judgment of Mr Justice Charleton delivered on the 30th day of July 2014

1.0 This case concerns a challenge by the applicant quarry firm McGrath Limestone Works Limited to a decision of the respondent An Bord Pleanála of 16 December 2013, upon review of a notice issued by the respondent Mayo County Council, on 17 August 2012, under section 261A of the Planning and Development Act 2000, as amended that adversely impacted on the continuation of quarrying works at a site at Cong in County Mayo between Lough Mask and Lough Corrib. This notice required that an application for substitute consent be made within 12 weeks under section 177E of the Act of 2000. Such an application must be accompanied by an environmental impact statement and an appropriate assessment, referable to the Environmental Impact Assessment Directive and the Habitats Directive. No such prior assessment had been made.

1.1 In this judicial review, as to the main points argued, the applicant McGrath Limestone Works claims: that there were no proper reasons given for either decision; that an earlier assurance by Mayo County Council on 3 April 2007 prevented the later order through legitimate expectation; that the decisions of Mayo County Council and An Bord Pleanála are irrational; that both the decisions were arrived at in breach of fair procedures; that same are an impermissible attack on property rights; that there has been a condemnation on a criminal offence without trial; and that section 261A of the Act of 2000 is unconstitutional and therefore of no effect. The respondents contend to the contrary. There is also an out of time point under section 50 of the Act of 2000.

1.2 The notice parties did not offer submissions at the hearing.

Board order

2.0 Central to every argument advanced was the decision of An Bord Pleanála of 16 December 2013. Therefore, same should be quoted. The curial part of the order is in the following terms:

Board Decision

The Board, in exercise of its powers conferred on it under section 261A of the Planning and Development Act, 2000, as amended, decided:

based on the Reasons and Considerations marked (1) set out below, to confirm the determination of the planning authority in respect of this development made under section 261A(2)(a)(i) of the Planning and Development Act, 2000, as amended, and

based on the Reasons and Considerations marked (2) set out below, to confirm the determination of the planning authority in respect of this development made under section 261A(2)(a)(ii) of the Planning and Development Act, 2000, as amended, and

based on the Reasons and Considerations marked (3) set out below, to confirm the decision of the planning authority in respect of this development made under section 261A(3)(a) of the Planning and Development Act, 2000, as amended

Matters Considered

In making its decision, the Board had regard to those matters to which, by virtue of the Planning and Development Acts and Regulations made thereunder, it was required to have regard. Such matters included any submissions and observations received by it in accordance with statutory provisions.

Reasons and Considerations (1)

Having regard to:

(a) the provisions of the Planning and Development Acts, 2000 to 2011, and in particular Part XA and section 261A,

(b) the Regulations pertaining to Environmental Impact Assessment 1989 to 1999 and the Planning and Development Regulations, 2001, as amended, which restates the prescribed classes of development which require an Environmental Impact Assessment (Schedule 5) and which makes provision for a planning authority to require the submission of an Environmental Impact Statement in such cases and the criteria for determining whether the development would or would not be likely to have significant effects on the environment (Schedule 7 thereof),

(c) the Department of Environment, Community and Local Government – Guidelines for Planning Authorities and An Bord Pleanála and carrying out Environmental Impact Assessment, March, 2013,

(d) the submissions on file, including documentation on the quarry registration file (planning authority register reference number QY18), aerial photography, and the report of the Inspector,

(e) the nature, scale and intensity of the extraction works on the overall site, and

(f) the location of the quarry being within one kilometre of four Natura 2000 sites and the dates of designation of these European Sites ranging from 1997 to 2011,

it is considered that development was carried out after the 1st day of February, 1990 that would have required an environmental impact assessment, but that such an assessment was not carried out.

Reasons and Considerations (2)

Having regard to:

(a) Council Directive 92/43 EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora, as amended

(b) the Department of the Environment, Heritage and Local Government – Appropriate Assessment of Plans and Projects in Ireland, Guidance for Planning Authorities, 2009/2010,

(c) the location of the quarry, being within one kilometre of four Natura 2000 sites and the dates of designation of two of these European Sites in particular, Lough Carra/Lough Mask Complex Special Area of Conservation (Site Code 001774) (March 1997) and Lough Corrib Special Area of Conservation (Site Code 000297) (July 1999), and

(d) the submissions on file, including documentation on the quarry registration file (planning authority register reference number QY18), aerial photography and the report of the Inspector, it is considered that the likelihood of significant effects on the candidate Special Areas of Conservation arising from development at this quarry after the 1st day of March, 1997 by itself, or in combination with other plans or projects, could not be excluded in view of the conservation objectives of the sites, and that an Appropriate Assessment would have been required.

Reasons and Considerations (3)

Having regard to the submissions on file, including documentation on the quarry registration file (planning authority register reference number QY18), aerial photography, and the report of the Inspector, the Board considered that:

(a) the quarry commenced operation prior to the 1st day of October, 1964, and that

(b) the requirements in relation to registration under section 261 of the Planning and Development Act, 2000, as amended, were fulfilled, and, therefore, the decision of Mayo County Council under section 261A(3)(a) should be confirmed.

Quarries

3.0 Of their nature, quarries may operate over generations. When a mineral resource is exhausted, work stops and the business closes or another nearby prospect may be sought out. Whatever the material extracted, the price that the raw product will fetch fluctuates with demand and is, in turn, dependent on economic conditions. Hence, a quarry may be very busy for some years but less so as cycles of consumption fluctuate. Some may even shut down. Old quarries may be reopened when extraction becomes worthwhile and existing quarries can intensify in use beyond what planning considerations contemplated as proportionate to what may have been authorised. In this context, ‘may’ is appropriate as many quarries were outside any planning controls. This situation has been changing, however. On the 1 October 1964, the Local Government (Planning and Development) Act 1963 came into force. At that stage, there were many quarries in operation and through the provisions of that legislation, existing uses and building works commenced fell outside the scope of the newly established need to seek planning permission from local planning authorities and to abide by such conditions as would be imposed on development. As the decades of regulation imposed by this enactment unfolded, concern arose as to whether quarries were even known to local planning authorities and as to whether they were validly operating outside the scope of the law. Hence, when the Planning and Development Act 2000 replaced the earlier statute, section 261 thereof required the registration of all quarries with local planning authorities. In addition, the section drew into limited consideration the public participation in planning that characterises this form of regulation. The section enables: the imposition of fresh conditions to quarries which already operate with planning permission; conditions to be imposed on quarries which have no planning permission; and, where no planning permission has been granted, a requirement to apply for same or the imposition of conditions or the making of an environmental impact statement. Since it came into force on 28 April 2004 (as per SI No. 152 of 2004 - Planning and Development Act 2000 (Commencement) Order 2004), section 261 has been much litigated: see O’Reilly v Galway City Council [2010] IEHC 97; An Taisce v Ireland [2010] IEHC 415; Pierson and Others v. Keegan Quarries Limited [2009] IEHC 550; Roadstone Provinces Ltd v An Bord Pleanála [2008] IEHC 210; M & F Quirke & Sons & Ors v Bord Pleanála [2009] IEHC 426. This brings into focus the first series of points in this judicial review.

Section 261 conditions

4.0 The owners of McGrath Limestone Works Limited, the applicant, claim that on registering their quarry under section 261 that the local authority Mayo County Council, the respondent herein, by imposing conditions as opposed to exercising any other power, established a legitimate expectation that never in the future would it be required that the quarry comply with any other legal imposition. The facts relevant require concise reference. Some part of the quarry commenced operation prior to the 1 October 1964. When the issue of intensification is dealt with, further details as to the extent and nature of that operation...

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