National Trust for Ireland v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 25 November 2010
• Neutral Citation: [2010] IEHC 415
• Court: High Court
• Date: 25 November 2010

An Táisce (The National Trust for Ireland) v Ireland & Ors

JUDICIAL REVIEW

BETWEEN

AN TÁISCE - THE NATIONAL TRUST FOR IRELAND

APPLICANT

AND

IRELAND AND THE ATTORNEY GENERAL

AND

AN BORD PLEANÁLA

RESPONDENT

AND

MONAGHAN COUNTY COUNCIL, JOHN McQUADE QUARRIES LIMITED

AND

PETER SWEETMAN AND ASSOCIATES

NOTICE PARTIES

[2010] IEHC 415

[JR 941/2009]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Retention planning permission - Quarry - Use - Intensification - Use of quarry prior to 1964 - Permission - Whether authorised development - Proportionate use - Whether intensification of use amounted to change of use - Whether prior unlawful use of land must be disregarded - Whether registration of quarry established pre 1964 use - Whether lawful use established - Change of use through intensification - Commission v Ireland (Case C- 215/06) [2008] ECR 4911; Haarlemmerliede en Spaarnwoude v Gedeputeerde Staten Van Noord-Holland (Case C-81/96) [1998] ECR I-3925; Stadt Papenburg v Bundesrepublik Deutschland (C-226/08) (Unrep, ECJ, 14/1/2010); Galway County Council v Lackagh Rock [1985] IR 120; Weston Ltd v An Bord Pleanála [2010] IEHC 255, (Unrep, Charleton J, 1/7/2010); O'Reilly v Galway County Council [2010] IEHC 97, (Unrep, Charleton J, 26/3/2010) and Waterford County Council v John A Wood Limited [1999] 1 IR 556 considered - Pierson v Keegan Quarries Limited [2009] IEHC 550, (Unrep, Irvine J, 8/12/2009) approved - Council Directive 85/337/EEC - Council Directive 92/43/EEC - Planning and Development Act 2000 (No 3), s 34(10) and 261 - Certiorari granted; planning permission quashed (2009/941 JR - Charleton J - 25/11/2010) [2010] IEHC 415

An Táisce v An Bord Pleanála

PLANNING & DEVELOPMENT ACT 2000 S261

EEC DIR 85/337

EEC DIR 92/43

PLANNING & DEVELOPMENT ACT 2000 S261(5)

PLANNING & DEVELOPMENT ACT 2000 S261(7)

HAARLEMMERLIEDE EN SPAARNWOUDE & ORS v GEDEPUTEERDE STAATEN VAN NOORD-HOLLAND ECR 1998 I-03923

STADT PAPENBURG v BUNDESREPUBLIK C-26/08 UNREP ECJ 14/01/2010

GALWAY CO COUNCIL v LACKAGH ROCK LTD 1985 IR 120

WESTON LTD v BORD PLEANALA UNREP CHARLETON 1.7.2010 2010 IEHC 255

O'REILLY v GALWAY CO COUNCIL UNREP CHARLTON 26.3.2010 2010 IEHC 97

PIERSON & ORS v KEEGAN QUARRIES LTD UNREP IRVINE 8.12.2009 2009/46/11557 2009 IEHC 550

PLANNING & DEVELOPMENT ACT 2000 S157(4)

WATERFORD CO COUNCIL v JOHN A WOOD LTD 1999 1 IR 556 1999 1 ILRM 217 1998 34 13063

COMMISSION v IRELAND C215/06 1998 ECR I-4911

1 JUDGMENT of Mr. Justice Charleton delivered on 25th November 2010

2 1. An Táisce seeks to overturn a decision of An Bord Pleanála dated the 20 ^th July 2009, granting permission to John McQuade Quarries Limited to continue to use a quarry at Lengare, Clontibert, County Monaghan subject to conditions. The permission was granted under s.261 of the Planning and Development Act 2000 ("the Act of 2000") (Quarry reference no. Q04/303) and the decision is PL 18.225398. An Bord Pleanála granted permission predicated on the basis that the quarry had begun to operate prior to the implementation of the Local Government Planning and Development Act 1963 on 1 October 1964 and had not been changed as to the use thereof by intensification.

3 2. The grounds on which judicial review is sought may be concisely stated as follows:

4 (1) An Bord Pleanála failed to consider if the quarry was not an authorised development by reference to its usage prior to the implementation of the planning code on the 1 ^st October 1964 and whether same was proportionate;

5 (2) An Bord Pleanála engaged in an irrational approach to the issue as to whether the quarry had been proportionately used prior to the 1 ^st October 1964;

6 (3) An Bord Pleanála failed to at all consider the issue of the use of the quarry prior to the 1 ^st October 1964;

7 (4) An Bord Pleanála failed to give any reason for any decision it may have made to the effect that the quarry had been used in a proportionate manner prior to the 1 ^st October 1964;

8 (5) An Bord Pleanála failed to give any consideration as to whether there were exceptional circumstances, absent proportionate pre-1 ^st October 1964 use, which would have allowed for the retention of the use of the quarry.

9 2. Because of the thorough nature of the arguments presented by counsel, for which the Court is grateful, the issues which this case has raised may be disposed of concisely.

Proportionate Use

10 3. Ordinarily, the use of land prior to 1 October 1964 is outside the scope of planning control, once a building exists since before that day or a use has been established and, proportionate to that use, carried on after that date. Quarries were made an exception to that legal exemption from planning controls in the Act of 2000. Section 261 ensures that all quarries in the State must be registered, subjected to planning scrutiny, and then, if appropriate, subjected to a requirement to abide by planning conditions, to apply for planning permission or to carry out and submit an environmental impact statement. No other industry sector has been subjected to requirements equivalent to those set out in s. 261 of the Act. Quarrying is, of its nature, an activity that must be carried out over many years. Upon the coming into force of the planning code on the 1 ^st October 1964, there were many quarries which had an entitlement to continue with their operation in a proportionate fashion. The Oireachtas made a decision that all such quarries should be registered and, when their operation had been properly analysed by local planning authorities as to the information which must be supplied for this process, quarries might need to be further regulated beyond the restrictions that the commencement of operations prior to 1 ^st October 1964 would have necessarily attracted. In that context, I have referred to the continuance by a business or a quarry, on a proportionate basis, of operations on the implementation of the first planning code. By this I mean that no quarry would have been entitled to intensify the use of its operations after that date so as that intensification of use amounted to change of use and which had an impact, proven directly or by necessary implication, on planning considerations for the area in which it is situate. A mineral extraction operation must, of its nature, expand either down into the ground or up into a mountain, in the case of mining operations, or outwards from an original area of operation in the case of a quarry or open-cast mine. Quarries which are proposed to be developed with an extraction area of 5 hectares or more are subject to a requirement under the Act of 2000 to submit an environmental impact study when applying for planning permission. That did not apply, up to the Act of 2000, to existing quarries, proportionately carrying on a pre-1 October 1964 use. Further, it is clearly established both in relation to Council Directive 85/337/EEC of 27 June, 1985 on the assessment of the effects of certain public and private projects on the environment, O.J. L 175, 5.7.1985 ("the EIA Directive") and Council Directive 92/43/EEC of 21 May, 1992 on the conservation of natural habitats and of wild fauna and flora, O.J. L 206, 22.7.1992 ("the Habitats Directive"), that projects which had already commenced when these directives were transposed into Irish law were not then subject to the restrictions later made possible under s. 261(5) and (7) of the 2000 Act; see Haarlemmerliede en Spaarnwoude and others v. Gedeputeerde Staten Van Noord-Holland( Case C-81/96) [1998] E.C.R. I-3925Stadt Papenburg v. Bundesrepublik Deutschland (C-226/08) (Unreported, European Court of Justice, 14 ^th January, 2010). .

11 4. Intensification of use as a breach of an existing pre-1964 lawful use of land is not to be decided solely by reference to criteria set out in Galway County Council v. Lackagh Rock Limited [1985] I.R. 120. Modern methods as a replacement for manual work do not necessarily establish an unlawful intensification of use but neither is that an indication of lawful intensification. That, furthermore, is only one principle. Whether intensification of use is established, as opposed to a proportionate and therefore lawful continuance of pre-planning control use, is a question for analysis based on the relevant case law. Where there has been an intensification of use, it must also be considered if that intensification impacts on the proper planning and sustainable development of an area. The establishment, however, that such intensification has affected the proper planning and development of the area does not necessarily have to be subject to separate submissions to either a planning authority or An Bord Pleanála. As with other areas of proof, this may arise by necessary implication arising out of a comparison of this nature and scale of the operation as compared to the base line against which it is to be judged. Further, a planning application is not a court process. Proofs are absent. The duty that is cast on a planning authority, or on An Bord Pleanála on appeal, is to make an appropriate enquiry. See Weston Limited v. An Bord Pleanála [2010] IEHC 255, (Unreported, High Court, Charleton J., 1 ^st July, 2010).

Section 261(7)

12 5. Section 261 of the Planning and Development Act 2000 provides as follows:-

13 2 "261(1) The owner or operator of a quarry to which this section applies shall, not later than one year from the coming into operation of this section, provide to the planning authority, in whose functional area the quarry is situated, information relating to the operation of the quarry at the commencement of this section, and on receipt of such information the planning authority shall, in accordance with section 7, enter it in the register.

14 (2) Without prejudice to the generality of subsection (1), information...