Meath County Council v Shiels
| Jurisdiction | Ireland |
| Judge | MR JUSTICE HEPIGAN |
| Judgment Date | 13 November 2008 |
| Neutral Citation | [2008] IEHC 355 |
| Court | High Court |
| Date | 13 November 2008 |
[2008] IEHC 355
THE HIGH COURT
BETWEEN
AND
PLANNING & DEVELOPMENT ACT 2000 S160
PLANNING & DEVELOPMENT ACT 2000 S152
PLANNING & DEVELOPMENT ACT 2000 S154
PLANNING & DEVELOPMENT ACT 2000 S261
PLANNING & DEVELOPMENT ACT 2000 S253
PLANNING & DEVELOPMENT ACT 2000 S3
ROADSTONE PROVINCES LTD v BORD PLEANÁLA UNREP HIGH FINLAY-GEOGHEGAN 4.7.2008 2008 IEHC 210
PLANNING & DEVELOPMENT ACT 2000 S2(1)
PLANNING & DEVELOPMENT ACT 2000 S160(7)
LOCAL GOVT ACT 2001 S151(1)
WATERFORD CO COUNCIL v JOHN A WOOD LTD 1999 1 IR 556
MONAGHAN CO COUNCIL v BROGAN 1987 IR 333
GALWAY CO COUNCIL v LACKAGH ROCK LTD 1985 IR 120
DUBLIN CO COUNCIL v CARTY BUILDERS & CO LTD 1987 IR 355
BUTLER & ORS v DUBLIN CORP 1999 1 IR 565
WESTMEATH CO COUNCIL v MICHAEL F QUIRKE & SONS UNREP HIGH BUDD 23.5.1996 2003/49/11917
MORRIS v GARVEY 1983 IR 319
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
LEEN v AER RIANTA CPT 2003 4 IR 394
PLANNING & ENVIRONMENTAL LAW
Development
Quarry - Pre-1964 quarry - Intensification of quarrying activities - Unauthorised development - Whether change in use of land since the operative date - Whether change material - Whether development unauthorised - Discretion - Whether proceedings statute-barred - Applicable principles - Mala fides - Morris v Garvey [1983] IR 319 followed; Roadstone Provinces Ltd v An Bord Pleanála [2008] IEHC 210, (Unrep, Finlay Geoghegan J, 4/7/2008), Waterford County Council v John A Wood [1999] 1 IR 556, Monaghan County Council v Brogan [1987] IR 333, Galway County Council v Lackagh Rock Ltd [1985] IR 120, Dublin County Council v Carty Builders & Co. Ltd [1987] IR 355, Butler v Dublin Corporation [1999] 1 IR 565, Westmeath County Council v Quirke (Unrep, Budd J, 23/5/1996) and Leen v Aer Rianta CPT [2003] 4 IR 394 considered - Local Government Act 2001 (No 37), s 151 - Planning and Development Act 2000 (No 30), ss 2, 3, 154, 160, 253 & 261 - Relief granted - (2008/3216P - Hedigan J - 13/11/2008) [2008] IEHC 355
Meath Co Co v Shiels
Facts: The respondent was the owner and operator of a quarry and the applicant contended that there had been unauthorised development on the respondent lands. An order was sought pursuant to s. 160 of the Planning and Development Act 2000 to inter alia restrain the respondent from carrying on further unauthorised development or from carrying out any intensification. Numerous complaints had been received from local residents about the operation of the quarry and the intensity of the quarrying operations, hours, dust, noise and explosions. The issue arose as to whether the activities carried out amounted to intensification and required planning permission or whether they were merely a continuation of the works at the operation since 1964.
Held by Hedigan J. that the court had a wide discretion under s. 160 of the Act of 2000 and in light of the mala fides of the respondent, the court was satisfied that it was justified in exercising its discretion under section 160 of the Act of 2000. Unauthorised development had taken place.
Reporter: E.F.
MR JUSTICE HEPIGAN, delivered on the 13th day of November. 2008
1. This case relates to the use of a quarry owned and operated by the respondent. The applicant contends that there has been unauthorised development on the respondent's lands within the meaning of the Planning and Development Act 2000. The applicant is therefore seeking orders under section 160 of the Act of 2000 to the following effect:
(a) Restraining the respondent from carrying out and continuing with the unauthorised development of the lands, and
(b) Prohibiting the respondent from carrying out any intensification of quarrying activities, and
(c) Directing the removal from the lands of any machinery, equipment or materials used in connection with the unauthorised development.
2. A number of affidavits have been sworn and filed on behalf of the parties and oral evidence was given at the hearing of the matter. As they appear from the affidavits and the oral hearing, the facts are as follows. The stone quarry in question, which is located in Slane, Co. Meath, commenced operation in the late 19 th century. It was owned and operated by a local family, the Keoghs, from the 1930s until 2004. The respondent acquired the quarry from Pascal Keogh in 2004 for the sum of €1 million. The applicant says that the quarry was used on an occasional basis only until 2004, generating from 0-20 loads per day or from 0-100 loads per week. The respondent accepts that the operation of the quarry was small until he acquired it in 2004 and that there were no emissions as a result.
3. On 14 th December, 2004, the respondent applied for registration of the quarry in compliance with section 261 of the Planning and Development Act 2000. The applicant advertised notice of the registration on 8 th June, 2005, but there is a factual dispute as to the details registered. The dispute is material and I will return to it.
4. In June, 2005, Con Kehely, a Senior Executive Engineer assigned to the applicant's Planning and Enforcement Division, visited the site on behalf of the applicant. He reported that it was a small scale operation, the quarry floor was not deep, there was no-one and no plant on site, no excavation taking place, and no pumping, screening or drilling equipment on site. There was some evidence of recent activity but no evidence of significant or intensive quarrying operations taking place.
5. The respondent contests the accuracy of those observations. He has invested €1.5 million in plant and equipment since 2004, and has submitted documentation that he says shows the presence on site of the plant and equipment as well as crushing equipment. He also says that the quarry has been very active in the past decade owing to the increased demand that resulted from the construction boom.
6. As and from February, 2006, numerous complaints were made to the applicant by local residents - including Robert Newman, Finbar Wall, Peter Mooney and Eoin Mahon - about the operation of the quarry. The complaints related to the intensity of quarrying operations, long hours, dust, noise and explosions. In May, 2006, an inspection was carried out on behalf of the applicant by Angela Brereton, an Executive Planner assigned to the applicant's Planning Office, who noted a number of machines in operation, a portacabin on site, and a number of trucks, tractors and trailers accessing and leaving the site. She concluded that there had been an intensification of the scale of quarrying operations and, as a result, a Warning Letter was sent to the respondent in June, 2006 pursuant to section 152 of the Act of 2000. The respondent was, therefore, from this date, on notice of the applicant's views.
7. During a further inspection in June, 2006, Angela Brereton, accompanied by Con Kehely, informed the respondent that she was of the opinion that the quarrying activities that were being carried out amounted to intensification and required planning permission. The respondent undertook to engage a Planning Consultant and to provide information about the past operation of the quarry. The applicant served an Enforcement Notice on the respondent in August, 2006, pursuant to section 154 of the Act of 2000, calling on him to cease the unauthorised development that was taking place and revert to the scale of operations as detailed in the Registration forms submitted in compliance with section 261. The respondent replied, stating that operations would continue as per the details specified in the Registration forms submitted. The dispute as to the details registered becomes relevant in this context.
8. Further inspections were carried out in August, 2006 by Angela Brereton and John Sweeney, who is a Senior Executive Planner assigned to the applicant's Planning Office, and it was found that over a three-day period, 57, 66 and 56 loads of stone were taken from the quarry. In September, 2006, Jimmy Young, a Senior Staff Officer in the applicant's Planning Department, notified the respondent on behalf of the applicant that continued non-compliance with the Enforcement Notice would result in legal proceedings being instituted. On 9 th October, 2006, the County Manager signed an Order authorising the commencement of proceedings. In November, 2006, the applicant's solicitors wrote to the respondent requiring him to revert to the scale, nature and level of operations detailed in the Registration forms submitted in December, 2004, and again advising him that failure to do so would result in legal proceedings being issued.
9. In February, 2007, the applicant's representatives obtained copies of blast records and a log book of deliveries in respect of the respondent's quarry. This was possible only after a warrant was granted under section 253 of the Act of 2000 by a District Court judge; the respondent had refused to produce the documentation in January, 2007, despite repeated requests - both written and oral - on behalf of the applicant. The documents that were obtained pursuant to the warrant show that an average of 221 loads per week (approximately 105, 000 tonnes of material in total) were excavated and transported from the quarry as a result of blasting during the period of 1 st January, 2006 to 3 rd February, 2007.
10. The within proceedings were commenced on 20 th March, 2007. An interim injunction was in place from 29 th March, 2007 to 24 th July, 2007, limiting the operating hours of the quarry and the number of loads per day. Since the interim injunction was discharged in July, 2007, the quarry has...
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