Pearce v Westmeath County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IEHC 449
• Docket Number: [No. 680 J.R./2006]
• Court: High Court
• Date: 19 December 2008

[2008] IEHC 449

THE HIGH COURT

[No. 680 J.R./2006]

Pearce v Westmeath Co Council

BETWEEN

ANGELA PEARCE

APPLICANT

AND

WESTMEATH COUNTY COUNCIL

RESPONDENT

AND

SHAY BOYHAN

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S261(7)(A)

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S261(7)

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S261(1)

PLANNING & DEVELOPMENT ACT 2000 S261(2)

PLANNING & DEVELOPMENT ACT 2000 S261(11)

PLANNING & DEVELOPMENT ACT 2000 S261(10)

PLANNING & DEVELOPMENT ACT 2000 S261(7)(C)

PLANNING & DEVELOPMENT ACT 2000 S261(8)(B)

RSC O.84 r20(4)

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Development - Quarry - Environmental impact assessment - Regulation of quarrying activities - Register of quarrying information -Alleged failure to require submission of adequate objective evidence as to pre-1964 status of quarry - Dispute regarding length of quarrying - Canons of construction - Size of quarry - Entitlement to compensation - Locus standi - Onus of proof - Whether sufficient interest - Perceived damage to home and life - Potential detrimental financial impact on value of property - Unreasonableness test - Whether decision flew in face of fundamental reason - State (Abenglen Properties) v Corporation of Dublin [1984] IR 381, O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Planning and Development Act 2000 (No 30), ss 50, 216 and 261 - Application dismissed (2006/680JR - Hanna J - 19/12/2008) [2008] IEHC 449

Pearce v Westmeath County Council

EX TEMPORE JUDGMENT delivered by

Mr. Justice Hanna

on the 19th day of December 2008

1 These are judicial review proceedings. The applicant is a married lady. She resides at Franvanagh, Multyfarnham in the County of Westmeath. It is not a place with which I am familiar. Mrs Pearce depicts something of a rural idyll and I am happy to accept that. Absent the matters to which I will presently refer, to her and her neighbours it is a picturesque and tranquil spot.

2 That the respondent is the local planning authority and the notice party a quarry operator is clue enough as to what comes next. The controversial operation of a quarry known as QY14, Killinstown, Multyfarnham, has ignited litigation, a situation not unfamiliar to these courts. I have read through the correspondence going back to the late 1990s, passinginter alia between the applicant, her neighbours and the local authority. I hope it is not unfair to the applicant to describe her as something of a mouthpiece for a group of approximately 10 friends and neighbours. The tenor of the correspondence is clearly reflective of deep concerns for their property and their quality of life as a consequence of quarrying operations. They apprehend, inter alia, damage to the roads as a consequence of heavy traffic. They fear physical damage to their property and a diminution in its value. The applicant, a resident of relatively recent vintage, claims in correspondence that the quarrying activities are impeding the sale of her house. She complains also of noise and dirt.

3 A group of residents anxious for their way of life and property; a quarry operator, no doubt a decent man, wanting to get on with making a living; a local authority drawn into the conflict, a conflict which we shall see exposes stark historical and factual differences; as I have said, not unfamiliar territory for the courts in Ireland. But this is not a nuisance action, neither is it what is colloquially known as a "section 160 application" (one is in being, parallel to these proceedings). This is a judicial review, and the applicant moves these proceedings pursuant to leave granted by O'Neill J. on the 19th June, 2006.

4 What controversy brought this about? The answer is a decision the local authority, the respondent, made on the 19th April, 2006, pursuant to s. 261(7)(a) of the Planning and Development Act2000. This decision, addressed to the notice party, required him to lodge a planning application accompanied by an environmental impact assessment in respect of the quarry, the focal point of the dispute. To fast-forward slightly in order to bring matters up to date, the notice party was granted planning permission by the respondent in February, 2007. This was swiftly followed by appeals to An Bord Pleanála, inter alia, by the applicant, and these appeals are still outstanding. No judicial review or other challenge to the grant of planning permission has been mounted to date apart from the appeals. A strict time limit of eight weeks so to move is provided for by s. 50 of the Act of 2000, as amended by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006. One of the reliefs sought by the applicant was an order restraining such consideration by the respondent of the notice party's planning application. Given the passage of time and the steps that have been taken, this relief is clearly redundant and does not concern this Court.

5 The grounds on which the applicant seeks relief may be summarised as follows.

6 (1) The respondent, when making the decision to which I have referred, failed to require the notice party to submit any or any adequate objective evidence as to the pre-1964 status of the quarry and/or the extracted area of the quarry prior to making its decision.

7 (2) The respondent, in making its decision, failed to properly investigate and evaluate the evidence available to it prior to reaching its decision, and failed to act judicially.

8 (3) The respondent, in making the decision, failed to follow its own repeated findings that the quarry required planning permission due to abandonment or intensification.

9 (4) The respondent, in making the decision, relied upon a report submitted by Lucy & Associates, submitted on behalf of the notice party that allegedly had previously been rejected by the respondent's officials.

10 (5) The respondent made the decision within one day of receipt of further information from the notice party.

11 (6) The respondent, in making the decision, breached the provisions of s. 216(7) of the Act of 2000 andultra vires its powers under the Act of 2000.

12 (7) The respondent, in making the decision, acted in breach of natural justice in that it conferred an advantage to the notice party as against the applicant and other objectors.

13 (8) In light of the foregoing, it was submitted by the applicant that the decision of the respondent was unjustified, irrational, capricious, perverse and unlawful.

14 In the submissions filed on behalf of the applicant, the applicants sought to argue that the decision in question was unreasonable. This ground was set out in ground 7 of the statement to ground the application for judicial review, and it stated as follows:

"The Respondent's said decision flies in the face of the evidence available to it".

15 The applicant was refused leave to rely on this ground. However, it seems to me that the flavour of the applicant's case is sufficiently captured in the remaining grounds.

16 Before visiting in slightly greater detail the factual background, I should pause here and set out the statutory framework with which we are concerned. Section 261 of the Planning and Development Act2000, is clearly aimed at imposing a regulatory regime under the Planning Code on the quarrying industry. It requires for a period of not greater than one year from the coming into force of the section (effectively from the 28th April, 2004, to the 27th April, 2005), that quarry owners or operators provide certain information to the local planning authority, which information is then entered by the authority on a register (subs, 1). Such information would include the size and nature of the operation (subs. 2). If a quarry had a planning permission of a vintage greater than five years or had no planning permission, they were also required to submit themselves for registration (see subs. 11). Where registration was mandated and not effected, any such development was deemed unauthorised (subs. 10).

17 On the 21st April 2005, the quarry at Multyfarnham was registered. It is known, as QY14 AP3(4). In a dispute taking a variety of forms going back at least to the late 1990s, this represents the launch pad for the proceedings with which we are now concerned, leading to a decision of the respondent made, as I have said, on the 19th April, 2006, giving notice to the notice party to make a planning application within six months from that date and to submit with that application an environmental impact statement. It is necessary to cite part of s. 261 of the Act of 2000 to identify the legislative genesis of our gathering together in this Court. Subsection 7 provides as follows:

a "(a) Where the continued operation of a quarry-

18 (i) (I) the extracted area of which is greater than five hectares, and

(II) that commenced before October 1964,

19 (ii) would be likely to have significant effects on the environment, (having regard to any selection criteria prescribed by the Minister under section 176(2)(e), a planning authority shall not impose conditions on the operation of a quarry under subs. (6), but shall, not later than one year after the date of the registration of the quarry, require, by notice in writing, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority, not later than 6 months from the date of...