Pierson & Others v Keegan Quarries Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 07 October 2010
• Neutral Citation: [2010] IEHC 404
• Court: High Court
• Date: 07 October 2010

[2010] IEHC 404

THE HIGH COURT

[No. 20 MCA/2008]

Pierson & Ors v Keegan Quarries Ltd

BETWEEN

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

APPLICANTS

AND

KEEGAN QUARRIES LIMITED

RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S160(6)(A)(I)

DUBLIN CORPORATION v SULLIVAN UNREP FINLAY 1985/1/181

MINES & QUARRIES ACT 1965 S3(2)

SOUTH DUBLIN CO COUNTY v MYLES BALFE LTD, SHIFT-A-LIFT & BROGAN UNREP COSTELLO 3.11.95 1995/17/4391

KILDARE CO COUNCIL v GOODE UNREP MORRIS 13.6.1997 1998/8/2312

PILKINGTON v SECRETARY OF STATE FOR THE ENVIRONMENT 1973 1 WLR 1527

LEIGHTON & NEWMAN CAR SALES LTD v SECREATRY OF STATE FOR ENVIRONMENT 1976 32 P & C R 1

PROSSOR v MIN FOR HOUSING & LOCAL GOVT 1968 67 LGR 109

WESTMEATH CO COUNCIL v QUIRKE & SONS UNNREP BUDD 23.5.1996 2003/49/11917

MORRIS v GARVEY 1983 IR 319

LANIGAN & ORS v BARRY & ORS UNREP CHARLTON 15.2.2008 2008/34/7462 2008 IEHC 29

WHITE v MCINEARNY CONSTRUCTION LTD v FARRELL HOMES LTD 1982 ILRM 21

DUBLIN CORP v MCGOWAN 1993 1 IR 405 1993/2/303

ALTARA DEV LTD v VENTOLA LTD UNREP O'SULLIVAN 6.10.2008 2005/2/219 2005 IEHC 312

GRIMES v PUNCHESTOWN DEV CO LTD 2002 4 IR 515

LEEN v AER RIANTA CPT 2003 4 IR 394

CAVAN CO COUNCIL v EIRCELL LTD UNREP GEOGHEGAN 10.3.1999 2000/19/7508

DUBLIN CO COUNCIL v SELLWOOD QUARRIES LTD 1981 ILRM 23

AVENUE PROPERTIES LTD v FARRELL 1982 ILRM 21

GRIMES v PUNCHESTOWN DEVELOPMENTS CO LTD 2002 4 IR 515

LEEN v AER RIANTA CPT 2003 4 IR 394

DUBLIN CORPORATION v MULLIGAN UNREP FINLAY 6.5.1980 1980/5/969

PLANNING AND ENVIRONMENTAL LAW

Injunction

Unauthorised development - Intensification - Use of lands as quarry - Application to restrain use of land as quarry - Whether use amounts to unauthorised development - Whether onus of establishing application on applicant - Whether material change of use - Whether present use as quarry unauthorised by reason of intensification - Statutory obligation to bring application for injunction to restrain use as quarry within seven years from date of commencement of development - Effect of break in continuity of unauthorised use - Whether application time barred - Discretionary nature of relief - Whether respondent had bona fide belief that use of land was authorised - Whether hardship to respondent or third parties if order granted - Morris v Garvey [1983] IR 319 followed - Dublin County Council South v Myles Balfe Ltd (Unrep, Costello J, 3/11/1995); Kildare County Council v Goode (Unrep, Morris J, 13/6/1997); Prossor v Minister for Housing and Local Government [1968] 67 LGR 109; Cavan County Council v Eircell Ltd (Unrep, Geoghegan, 10/3/1999); Altara Developments Ltd & Crossan v Ventola Ltd (Unrep, O'Sullivan J, 6/10/2005); Grimes v Punchestown Developments Co Ltd [2002] 4 IR 515 and Leen v Aer Rianta cpt [2003] 4 IR 394 considered - Planning and Development Act 2000 (No 30), ss 160 - Application to restrain use of lands as quarry granted (2008/20MCA - Irvine J - 7/10/2010) [2010] IEHC 404

Pierson v Keegan Quarries Ltd

Facts: The applicants were residents of Co. Meath and the respondent was operating a quarry. The applicants contended that the use of the lands as a quarry amounted to an unauthorised development. The applicants complained that the operation of the quarry was having a profound and detrimental effect on their lives and sought to restrain its activities pursuant to s. 160 Planning and Development Act 2000, as amended. The respondents claimed that the quarry was used inter alia continuously since 1985. The applicants argued that their right to an injunction was not statute-barred. The Court considered the history of the ownership of the quarry and its location, whether the use of the lands by the respondent amounted to an unauthorised development, whether the claim was time-barred and whether the Court had to exercise its discretion in favour of the plaintiff.

Held by Irvine J. that the Court would exercise its discretion in favour of the applicants who were entitled to an order pursuant to s. 160 Planning and Development Act 2000, as amended, restraining the respondent from using the lands as a quarry. The applicants had discharged the onus of proof as regards the history of the quarry. The respondent had not discharged the onus of proof to establish that the right to seek injunctive relief was statue barred and the defence of the respondent failed in this regard. It was clear that the activities of the respondent amounted to an unauthorised development which commenced in 1997. The breach by the respondent of the condition No. 2 was not a factor which influenced the decision of the applicant to institute the proceedings.

Reporter: E.F.

Introduction

1 1. The applicants in these proceedings are all residents of Bellewstown, Drogheda, Co. Meath. The respondent is operating a quarry on certain lands contained in folio 24022F of the County of Meath. On the 27 ^th April, 2005, the respondent's predecessor applied to have the quarry registered pursuant to s. 261 of the Planning and Development Act 2000 (hereinafter "the Act") and its registration was confirmed on the 14 ^th October, 2005, subject to some 23 conditions later imposed by the local authority by a decision made on the 23 ^rd April, 2007.

2 2. Notwithstanding the registration of the respondent's quarry, the applicants contend that the use by the respondent of these lands as a quarry amounts to unauthorised development They deny that the lands in question were ever used as a quarry prior to 1964 and that if they were, their present use as a quarry is unauthorised by reason of intensification. The applicants contend that the operation of the quarry is having a profound and detrimental effect on their lives and the lives of those living within the local community. They complain that massive earthworks have destroyed their landscape: that vast numbers of large commercial trucks using narrow country roads have created hazardous conditions for road users. They complain of noise and dust pollution and the loss of enjoyment of their homes and gardens. They also maintain that the respondent, apart from operating an unauthorised quarry, has been and continues to be in breach of a number of the conditions imposed by the local authority at the time it registered the quarry.

3 3. The applicants seek orders pursuant to s. 160 of the Act, inter alia, restraining the respondent from continuing to use the aforementioned land as a quarry and directing it to restore it to its previous condition.

4 4. The respondent maintains that its use of the quarry is not unauthorised as the relevant land was used as a quarry prior to 1964. Alternatively, it contends that the lands have been used as a quarry on a continuous basis since late 1985, and that in 1995, quarrying work of a commercial nature was commenced thereon by a Mr. John Gallagher. Further, in the alternative, the respondent maintains that if the quarry constitutes unauthorised development, it has, at a minimum, been in operation as such for more than seven years prior to the institution of the present proceedings, and that accordingly the applicant's claim for relief is time barred by reason of the provisions of s. 160(6)(a)(i) of the Planning and Development Act 2000. Finally, even if the use of the lands as a quarry is unauthorised and the applicant's claim is not time barred, the respondent submits that the court should not exercise its discretion in the applicant's favour for a range of reasons, which will be referred to later in this judgment.

5 5. In reply, the applicants maintain that their right to an injunction is not statute barred. In this regard, they maintain that the use of the lands by Mr. John Gallagher for a brief period of time in 1996 was subsequently abandoned. They further contend that any unauthorised use of the lands, whether immune from suit or otherwise, was abandoned and/or extinguished by reason of an application for a waste management permit in March, 2002 and an application for planning permission for a land recovery operation in December, 2002.

Court proceedings

6 6. By letter dated the 17 ^th January, 2008, the applicants' solicitors, McGarr and Company, threatened proceedings pursuant to s. 160 of the Act. By letter dated the 24 ^th January, 2008, the respondent denied that it was engaged in any unauthorised development. The present proceedings were commenced on the 11 ^th February, 2008, and were referred to plenary hearing by order of this Court dated the 1 ^st May, 2008. The hearing commenced before this Court in December, 2009, at which stage a point of law was raised by the respondent which was tried as a preliminary issue. The court gave its decision on that issue on the 8 ^th December, 2009, when it concluded that the applicants were entitled to maintain the present proceedings utilising the provisions of s. 160 of the Act, notwithstanding the fact that they did not seek to challenge, by way of judicial review, the decision of the local authority to register the respondent's lands as a quarry. On the 14 ^th October, 2005, and/or its decision dated the 23 ^rd April, 2007, to impose conditions on its operation.

History of ownership and the location of the quarry

7 7. The decision of this Court is one which is based principally on the use of the relevant lands over the last sixty years or so. Accordingly, I will briefly refer to the history of the ownership of the lands, which are not disputed. The respondent's lands comprise approximately 12 hectares. The precise holding is shown on the map attached to the contract for the purchase of those lands by the respondent dated the 24 ^th January, 2007. The respondent's lands were originally part of an estate comprising 368 acres owned by...