Michael Cronin Readymix Ltd v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Ryan
Judgment Date16 December 2009
Neutral Citation[2009] IEHC 553
CourtHigh Court
Docket Number[2007 No. 144 JR]
Date15 December 2009

[2009] IEHC 553

THE HIGH COURT

[No. 144 J.R./2007]
Michael Cronin (Readymix) Ltd v Bord Pleanála
[2009] IEHC 553

BETWEEN

MICHAEL CRONIN (READYMIX) LIMITED
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

KERRY COUNTY COUNCIL

AND

THE DEPARTMENT OF THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT
NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2000 S5(4)

PLANNING & DEVELOPMENT ACT 2000 S4(1)(H)

PLANNING & DEVELOPMENT ACT 2000 S5

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

PLANNING & DEVELOPMENT ACT 2000 S2

CAIRNDUFF v O'CONNELL 1986 IR 73 1986 ILRM 465 1986/1/209

PLANNING & DEVELOPMENT ACT 2000 S2(1)

GALWAY CO COUNCIL v LACKAGH ROCK LTD 1985 IR 120 1985/5/1197

ESAT DIGIFONE LTD v SOUTH DUBLIN CO COUNCIL 2002 3 IR 585 2002 2 ILRM 547 2002/10/2408

PLANNING & ENVIRONMENTAL

Exempted development

Works - Extension of quarry for manufacture of cement blocks - Change of use - Whether extension constitutes "works" - Whether extension works constitute exempted development - Test applicable for change of use - Whether activities constituting works can also constitute material change of use - Whether change of use - Difference between "works" and "use" - Cairnduff v O'Connell [1986] IR 73 and Esat Digifone Ltd v South Dublin County Council [2002] 3 IR 585 followed; Galway County Council v Lackagh Rock Ltd [1985] IR 120 considered - Planning and Development Act 2000 (No 30), ss 2(1), 4(1)(h) and 5(4) - Certiorari granted (16/12/2009) [2009] IEHC 553

Michael Cronin Readymix Ltd v An Bord Pleanála

WORDS & PHRASES

Planning - Context of Act - Meaning of terms "works" and "alteration" - Whether overall scheme of statute should be considered - Whether words should be given reasonable meaning - Cairnduff v O'Connell [1986] IR 73 and Esat Digifone Ltd v South Dublin County Council [2002] 3 IR 585 followed - Planning and Development Act 2000 (No 30), ss 2(1) and (4)(1)(h) - Certiorari granted (16/12/2009) [2009] IEHC 553

Michael Cronin Readymix Ltd v An Bord Pleanála

Facts The applicant sought to challenge by way of judicial review the decision of the respondent on a reference by the planning authority determining that the applicant's block making operation at its quarry was development and was not exempted development. The applicant submitted that the only new work carried out at the site was the replacement of an old concrete yard and the extension of the yard for the making and storage of blocks. The applicant's challenge referred to the inspector's report which was the foundation of the adverse decision made by the respondent and the applicant submitted that the inspector did not apply s. 4(1)(h) of the Act of 2000 correctly, did not apply the correct test when deciding that there was a material change of use , failed to distinguish between the concepts or works and use and took into account irrelevant considerations. The respondent had concluded that the laying out of a hard surfaced area was development which did not fall within the scope of s. 4(1)(h), not being works for the maintenance, improvement or other alteration to a structure and the development was not exempted development. The respondent had determined that 'alteration' did not include an extension and that in this case an extension had taken place and that amounted to works and development and could not be described as maintenance, improvement or other alteration of a structure.

Held by Ryan J. in granting the application: That the word "works" in s. 4(1)(h) had to be given its meaning as set out in s. 2 of the 2000 Act. The respondent was wrong in its interpretation of s. 4(1)(h). An extension was not excluded as a matter of definition. By insisting that the work done must have been actual maintenance, improvement or other alteration, rather than for the purposes of maintenance etc., the respondent confused purpose and act and overlooked "the carrying out of works" in s. 4(1)(h). The respondent did not ask the correct question(s). The fundamental question was not in relation to the nature of the work but rather its purpose and effect. The misunderstanding of s. 4(1)(h) by the respondent was fatal to its decision. Furthermore, the Inspector took into account irrelevant matters and invalidly confused "works" and "use" when addressing the issue of material change of use.

Reporter: L.O'S.

1

Mr. Justice Ryan delivered on the 15th December 2009

2

On a reference by a planning authority under section 5(4) of the Planning and Development Act, 2000An Bord Pleanála may give a decision as to what, in a particular case, is or is not development or exempted development. The applicant in this case is challenging such a decision, in which Kerry County Council was the planning authority and the decision related to the applicant's quarry at Coolcaslagh, Killarney, Co. Kerry. The Board decided that a block making operation at the quarry was development and not exempted development.

3

The background to the reference can be shortly summarised. The applicant operates a quarry at the above address where it produces readymix concrete and concrete blocks. In late 2003 the County Council as planning authority became concerned that the block making activity within the quarry might be unauthorised development. At an inspection on the 16 th September, 2003, an official was informed that block-making was being carried out, that there was no new structure and that the only new work that had been done was the replacement and extension of an old yard for making and storing the blocks. That information did not prevent the council from sending a warning letter on the 29 th September 2003.

4

A submission on behalf of the applicant also did not convince the council and there was another inspection on the 10 th November 2003 by a planning enforcement official, who recommended that an enforcement notice be issued, which happened on the 21 st November 2003. There followed correspondence between solicitors for the applicant and the planning authority and at least one meeting was held, but no further steps were taken to prevent the use of the quarry for block making.

5

The applicant company was making the case that the block making was exempted development within the meaning of s. 4(1)(h) of the 2000 Act. It also contended that quarrying and concrete production had been going on at the site since before the 1963 Local Government (Planning and Development) Act came into effect and block-making was not different in kind from producing readymix concrete. Some block making was also part of the quarry's history. The matter remained unresolved when the council sought a decision from the Board.

6

The planning authority asked for the Board's assistance under s. 5 by way of letter of the 4 th May, 2006. It is clear from the heading and the contents of the letter that the principal area of concern to the local authority was the block-making facility. But it did mention the information from the operator of the quarry "that the only new work carried out was the replacing of an old concrete yard, the extension of the yard for the making and storage of blocks." The Council enclosed its enforcement file and the letter set out factual information as well as the Council's understanding of the developer's contentions. There was no adequate factual basis for some of the stated information but neither the Inspector nor the Board relied on those facts and so they are irrelevant to the issues in this case.

7

The respondent's inspector reported on the 17 th November, 2006, and the Board's decision is dated 13 th December, 2006. The conclusions and decision of An Bord Pleanála are based on and follow the Inspector's report, repeating in the decision all but one of ten recommendations made by the inspector. The decision under s. 5(4) of the 2000 Act is that the block-making operation at the applicant's quarry is development and is not exempted development.

8

The applicant makes his challenge by reference to the inspector's report which is the foundation of the adverse decision made by the Board. There are three issues in the case:-

9

(a) Did the Board's Inspector apply s. 4(1)(h) correctly?

10

(b) Did the Inspector apply the correct test in deciding that there was a material change of use and/or was the Inspector's approach to this question irrational?

11

(c) Did the Inspector fail to distinguish between the concepts of works and use in the 2000 Act in coming to the conclusion that there was a change of use?

12

If any of these questions is answered in the affirmative, the decision was flawed and the applicant is entitled to an order quashing it. As to other minor grounds advanced by the applicant, including an argument as to fair procedures, I do not think that they are of significance.

13

This Court directed that a telescoped hearing be heard in which both the leave and substantive applications are heard. This does not obviate the need for the applicant to meet the criteria in order for leave to be granted, but since all the issues were debated at the hearing, it follows that if the applicant succeeds in its application on the substantive question, consideration of the leave issue is unnecessary.

14

The notice parties took no part in the proceedings. Counsel for the planning authority appeared briefly at the opening of the case to say that his clients associated themselves with the submissions to be made by the respondent and left over the question of an application for costs that might arise at a later stage.

15

I should say at the outset that it is accepted on both sides that the role of this court is and ought to be limited in a case of this kind. If a matter is properly within the field of planning judgment, I should not substitute my own view for that of the respondent even if I felt entitled to come to a different...

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