Pearce v Westmeath County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] IEHC 477
• Docket Number: [2014 No. 327 JR]
• Court: High Court
• Date: 26 July 2016

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

AND

IN THE MATTER OF AN APPLICATION

BETWEEN

ANGELA PEARCE

APPLICANT

AND

WESTMEATH COUNTY COUNCIL

RESPONDENT

AND

ANGELA BOYHAN (IN HER CAPACITY AS LEGAL PERSONAL REPRESENTATION OF SHAY BOYHAN DECEASED)

AND

AN BORD PLEANÁLA

NOTICE PARTIES

[2016] IEHC 477

McDermott J.

[2014 No. 327 JR]

THE HIGH COURT

JUDICIAL REVIEW

Environment, Transport & Planning – Environmental Impact Statement – Planning and Development Act 2000 – Judicial review – Completion of haul route survey – Order of certiorari.

Facts: Following an application for leave to apply for judicial review, the applicant sought an order of certiorari quashing the decision of the respondent regarding compliance of condition 16(1) of the planning permission. The applicant contended that the respondent had failed to give reasons for its decision. The applicant contended that the decision would be irrational as the required information had not been submitted by the first named notice party. The applicant contended that the decision would be ultra-vires the respondent and would have no legal effect.

Mr. Justice McDermott held that the application for an order of certiorari quashing the decision of the respondent regarding compliance of condition 16(1) of the planning permission would be granted. The Court observed that there had not been any time limit set out in the condition for the completion of the survey. The Court further stated that the process mandated by condition 16(1) had not yet been properly completed. The Court remitted the matter to enable it to be carried out in accordance with its terms.

JUDGMENT of Mr. Justice McDermott delivered on the 26th day of July, 2016

1 This is an application for an order of certiorari quashing the decision of Westmeath County Council dated 22nd November, 2013 and/or later dates purporting to agree the submission of the first named notice party regarding a haul route survey and provision of lay-bys made pursuant to condition 16(1) of a planning permission granted by An Bord Pleanála (Ref. No. PL25 2221717) on appeal from a decision of Westmeath County Council (Planning Register Ref. No. 06/5362). Various related declarations are also sought but these, for the most part, embody the grounds upon which the order of certiorari is sought.

Background

2 The applicant, her husband and two children reside at Fearbranagh, Co. Westmeath. Their family home is situated approximately 300 metres from the entrance to a quarry which is the subject of these proceedings. They moved into their home in or about 2005. The notice party Ms. Boyhan is the widow of the late Mr. Shay Boyhan who was the owner and operator of the quarry. The applicant states that for approximately two years after moving into their family home there was hardly any activity in the quarry. In January 2005 she describes a dramatic intensification of quarrying at the site up to a heavy industrial level. There was a constant stream of heavy laden trucks drawing rock every day. Approximately 630,000 tonnes of material was extracted from the quarry throughout 2005 according to an environmental impact statement submitted in 2006 as part of a planning application. It is estimated that during 2005 there was an average of 150 loaded trucks emerging from the quarry every day (giving rise to approximately 300 return journeys).

3 The planning history of the quarry goes back to 2006. On the 19th April, 2006 Westmeath County Council decided to require the first notice party to apply for planning permission for the operation of the quarry and to submit an Environmental Impact Statement (EIS) under s. 261(7) of the Planning and Development Act 2000. The applicant took the view that this application was ultra vires the Council because the proposal did not comply with two mandatory conditions in the legislation. An application for judicial review was initiated (2006 No. 680 JR) on the 12th June, 2006. Prior to the hearing of the judicial review, the Council granted permission on the 5th February, 2007 for the continuation of quarrying on the site as a continuation of a pre-1964 development.

4 The High Court (Hanna J.) dismissed the judicial review proceedings. This decision was appealed to the Supreme Court on 26th March, 2009. However the appeal was withdrawn on the coming into operation of s. 261(A) of the Planning and Development Act 2000 because the applicant believed that the issues raised on the appeal would be the subject of a re-examination by the Council and An Bord Pleanála on review. An Bord Pleanála granted planning permission for the continuation of the quarry before the appeal was withdrawn.

5 The permission granted by An Bord Pleanála contained a number of compliance conditions and in particular condition 16(1). It related to matters which had been of great concern to the applicant since 2005 relating to the adequacy of the road access to the quarry via the existing road structure in the immediate area and its capacity to absorb the very heavy traffic generated. The haul route to the quarry passed through two villages, Multyfarnham and Crookedwood and consisted of eight kilometres of narrow winding country road varying in width between 4.5 and 5.5 metres with narrow verges. The planning permission allowed an unlimited run of truck movements along the route to remove 300,000 tonnes of rock per annum.

6 An Bord Pleanála granted permission subject to compliance with these conditions having determined that the proposed development ‘would be acceptable in terms of traffic safety and convenience, would not seriously injure the amenities of the area or property in the vicinity, would not be prejudicial to public health and would not be contrary to the planning and sustainable development of the area’. The conditions restricted the time of the quarry's operation to between 7 a.m. and 6 p.m. Monday to Friday and 7 a.m. to 2 p.m. on Saturday. No activity was to take place outside these hours or on Sundays or bank holidays. No rock breaking activity was to be undertaken on any part of the quarry complex before 8am on any day. Conditions were also attached limiting blasting operations to between 11a.m. and 4 p.m. Monday to Friday and requiring vibration and dust monitoring.

7 In relation to the haul route to and from the quarry the following conditions applied:

‘15(1) The haulage route to and from the quarry shall be as stated in the documents submitted with the application.

(2) The developer shall submit the haul route from Multyfarnham to the N4 to the planning authority for written agreement prior to commencement of development.

Reason: In the interest of traffic safety.

16(1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route at 20 metre intervals, showing width, levels, verges and all other relevant features and identifying the number and location of all lay-bys to be provided by the developer.

(2) The developer shall provide and complete all lay-bys agreed under paragraph (1) above within six months from the date of this order and shall comply with the requirements of the planning authority for such works and services.

Reason: In the interest of traffic safety and orderly development.’

8 On the 20th January, 2012 the applicant made a submission or observation to the respondent in relation to its re-examination of the circumstances of the quarry at Killintown, Multyfarnham (Ref. No. EUQY14) pursuant to s. 261A of the Planning and Development Act 2000 as amended. On the 13th August, 2012 the Council made a determination pursuant to s. 261A(2)(a) and a decision pursuant to s. 261A(3)(a) directing the first named notice party to apply to An Bord Pleanála for substitute consent with a remedial Natura Impact Statement (NIS) in respect of the quarry pursuant to s. 177E of the Act.

9 The Council failed to notify the applicant of this determination within the statutory time period allowed to enable her to apply to An Bord Pleanála for a review of either or both of the determinations. In further judicial review proceedings between the applicant and Westmeath County Council (2012/828 JR) a consent order dated the 19th May, 2013 was made by the High Court remitting the matter to the Council to remake its decision and to notify her of it within time to allow her to seek a review by An Bord Pleanála.

10 A fresh decision dated 5th June, 2013 was made by the Council and issued to the first named notice party. The applicant sought a review of this decision by An Bord Pleanála as did the quarry owner. An Bord Pleanála notified the applicant of its decision dated 26th March, 2014. On the 19th May, 2014 the applicant was granted leave to apply for judicial review of this decision against An Bord Pleanála.

11 Meanwhile the first notice party purported to comply with condition 16 of the planning permission as originally framed which required a survey at 20 metre intervals to be carried out within six months of the date of the order to grant planning permission. The purpose of the survey was to identify all of the multiple points on the road where a traffic hazard and/or nuisance to road users and those living along the road might arise.

12 On the 4th January, 2010 the first named notice party made a submission to the County Council identifying the 27 kilometre one way haul route in order to comply with condition 15 of the planning permission and proposing the location of lay-bys in accordance with condition 16. It was submitted that condition 16 required the applicant to submit a detailed survey of the entire one way haul route at 20 metre intervals showing width, levels, verges and all other relevant features identifying the number and locations of all lay-bys to be provided by the developer. It noted that the...