Pierson and Others v Keegan Quarries Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine,
• Judgment Date: 08 December 2009
• Neutral Citation: [2009] IEHC 550
• Court: High Court
• Date: 08 December 2009

Pierson & Ors v Keegan Quarries Ltd

[2009] IEHC 550

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2006 AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED.

BETWEEN

JONATHON PIERSON, JOHN A. WOODS, GLENN WHITE, DESMOND WOODS, KEVIN GREENE AND JOAN COYLE

APPLICANTS

AND

KEEGAN QUARRIES LIMITED

RESPONDENT

[2009] IEHC 550

[No. 20 MCA 2008]

THE HIGH COURT

Abstract:

Planning & Environmental law - Judicial review - Quarry - Restrain use of quarry - Unauthorized development - Imposing conditions - Whether proceedings misconceived

Facts: The applicants resided in the vicinity of a quarry and sought to restrain the respondent from continuing to use its land as a quarry on the basis that it was an unauthorized development. In 2005, the respondent's predecessor in title had sought to register the quarry pursuant to s. 261 of the Planning and Development Act 2000. A decision was made by a planning authority to impose conditions on the operation of the quarry. The respondent contended that the applicant's claim was an abuse of process and/ misconceived. A preliminary objection was raised by the respondent that the relief sought under s. 160 of the Act of 2000 was an impermissible collateral attack on a decision of a local authority to register the lands as a quarry and to impose conditions on its continued operation under the provisions of the Act of 2000. The respondents contended secondly, that s. 160 of the Act of 2000 was not available to the applicant as a mechanism to enforce compliance with conditions imposed by a planning authority on the operation of the quarry. The applicants contended that for the respondents to succeed, it had to be possible to use s. 261 to obtain a type of backdoor planning permission or authorisation for the quarry which might otherwise be unauthorized development.

Held by Irvine J. that the statutory right of interested parties as provided for in s. 261 was extraordinarily limited. The respondents' preliminary objection to the validity of the proceedings would be dismissed. The decision of a planning authority to register a quarry did not have the legal effect contended for by the applicants. There was nothing in the Act of 2000 which created the type of procedural exclusivity contended for by the respondents. Judicial review was a wholly inadequate remedy. S. 261 simply supplemented the controls provided for in the normal planning process.

Reporter: E.F.

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S216

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S261(2)

PLANNING & DEVELOPMENT ACT 2000 S261(3)

PLANNING & DEVELOPMENT ACT 2000 S261(4)(A)

PLANNING & DEVELOPMENT ACT 2000 S261(5)(A)(I)

PLANNING & DEVELOPMENT ACT 2000 S261(5)(C)

PLANNING & DEVELOPMENT ACT 2000 S261(6)(A)(I)

PLANNING & DEVELOPMENT STRATEGIC INFRASTRUCTURE ACT 2006 S13

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128

PEARCE v WESTMEATH CO COUNCIL UNREP HANNA 19.12.2008 2008/52/10987 2008 IEHC 449

COMHALTAS CEOLTEORI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306

MCCARTHY v WALSH 1965 IR 246

O'KEEFE v BORD PLEANALA 1993 1 IR 39

AER RIANTA CPT v COMMISSIONER FOR AVIATION REGULATION UNREP O'SULLIVAN 16.01.2003 2003/1/141

PLANNING & DEVELOPMENT ACT 2000 S28

PLANNING & DEVELOPMENT LAW 2ED SIMONS

ABENGLEN PROPERTIES v DUBLIN CORP 1984 IR 381

PEARCE v WESTMEATH CO COUNCIL UNREP HANNA 19.12.2008 2008/52/10987 2008 IEHC 449

SIMONS PLANNING & DEVELOPMENT LAW 2ED PAR 8-128

SIMONS PLANNING & DEVELOPMENT LAW 2ED PAR 8-136

SIMONS PLANNING & DEVELOPMENT LAW 2ED PAR 8-137

SIMONS PLANNING & DEVELOPMENT LAW 2ED PAR 8-169

SHERWIN v BORD PLEANALA UNREP EDWARDS 3.7.2007 2007/56/11918 2007 IEHC 227

UNDEVELOPED AREAS (AMDT) ACT 1963 PART IV

PLANNING & DEVELOPMENT ACT 2000 S261(4)(B)(V)

PLANNING & DEVELOPMENT ACT 2000 S261(7)

1 1. The applicants, in these proceedings, reside in the vicinity of a quarry owned and presently operated by the respondent at Hilltown Little, Bellewstown, Co. Meath.

2 2. The applicants seek (inter alia) an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, ("the 2000 Act") restraining the respondent from continuing to use its lands which are contained in Folio 24022F of the Country of Meath as a quarry, which use they maintain constitutes unauthorised development.

3 3. The present proceedings were commenced by way of notice of motion dated 11 ^th February, 2008 and were remitted to plenary hearing by order of the High Court dated 1 ^st May, 2008. Points of claim were delivered on behalf of the applicants on 12 ^th May, 2008 and thereafter points of objection and defence delivered by the respondent.

4 4. It was agreed between the parties that following the opening of the applicant's claim that the court would determine a preliminary issue raised by the respondent as to the validity of the present claim. That issue is set out by way of preliminary objection in the respondent's points of objection and defence.

5 5. Following the opening of the substantive proceedings by Mr. Comyn, S,C, on the applicants' behalf, the court heard the submissions of the parties regarding the respondent's preliminary objection. The parties also delivered helpful written submissions in support of their respective positions which will be rehearsed, albeit briefly in the course of this judgment.

6 6. The principal objection raised by the respondent to the validity of the applicants' proceedings is a contention that the relief sought under s. 160 of the 2000 Act, which seeks to restrain the respondent's quarrying activities as unauthorised development, amounts to an impermissible collateral attack on a decision of the planning authority to register the respondent's lands as a quarry and to impose conditions on its continued operation under the provisions of s. 216 of the Act of 2000. In this regard the respondent maintains that the planning authority was only entitled to impose conditions upon the operation of the respondent's quarry if it was satisfied that it had been operated as a quarry prior to the 1 ^st October 1964 and that its use did not therefore constitute unauthorised development. That being so, the respondent submits that the applicants, if they wished to maintain a claim that the development was unauthorised was mandated by reason of the provisions of s. 50 of the 2000 Act to do so by way of judicial review proceedings commenced within eight weeks of the date upon which the relevant decision was made. Having failed to do so, the respondent maintains that the present proceedings under s. 160 of the 2000 Act are misconceived.

7 7. The second preliminary objection pleaded contends that the proceedings are misconceived insofar as the applicants seek to invoke s. 160 of the 2000 Act to restrain what they contend are quarrying activities being carried out by the respondent in breach of the conditions imposed by the planning authority in its order dated of 23 ^rd April, 2007. However, as counsel of behalf of the applicants has conceded that the procedure provided for in s. 160 of the 2000 Act is not available to the applicants as a mechanism to enforce compliance with any conditions imposed by the planning authority on the operation of a quarry registered pursuant to s. 261 of the Act of 2000, it is not necessary for the court to consider this issue further.

Factual background

8 8. Whilst it is not necessary for the court for the purposes of the present preliminary application to resolve any of the facts which are disputed between the parties, it is perhaps nonetheless helpful to set out very briefly the facts relied upon by the respective parties. The principal factual dispute is as to whether the lands of the respondent were ever operated as a quarry prior to 1 ^st October, 1964. Of somewhat less importance is the extent of any quarrying carried out on the lands thereafter.

9 9. The lands, the subject matter of this dispute, were initially part of the Boylan Estate. The applicants maintain that the lands, now being operated by the respondent as a quarry, were purchased by a Mr. Raymond Coyle in 1975 and subsequently sold to a Mr. Lawlor in 1982. They were then purchased by the McGuinness family in 1985 and registered in the sole name of Mr. Michael McGuinness 2002.

10 10. In June 2003, Michael McGuinness, according to the applicants, obtained planning permission for a land recovery operation permitting him to spread top soil on the lands so that they could be used for agricultural purposes. Mr. McGuinness, it appears from the applicants' affidavits, sought to commence quarrying activities in 2003 but received a warning letter from the local authority on 26 ^th April, 2004, as a result of which such activities stopped. Since the completion by the respondent of its purchase of the lands from Mr. McGuinness in February 2007 quarrying works have allegedly been recommenced on the lands and are now are being carried out at a hitherto unprecedented level.

11 11. The applicants are adamant that the lands were never operated as a quarry before 1 ^st October 1964. They assert that prior to February 2007 the only quarrying works to have taken place on the relevant lands were those carried out by Mr. McGuinness in late 2003. A substantial number of maps and photographs were opened to the court in support of the applicants' assertions in this regard. To a like end numerous affidavits have been filed by individuals having knowledge of the lands over the relevant time frame.

12 12. The respondent, in its affidavits maintains that quarrying had commenced on its land prior to 1 ^st October, 1964. Mr. McGuinness on the respondent's behalf, deposed in his affidavit to the fact that Mr. Lawlor who sold the property to...