O'Reilly Brothers (Wicklow) Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 22 November 2006
• Neutral Citation: [2006] IEHC 363
• Date: 22 November 2006
• Court: High Court
• Docket Number: [2003 No.

[2006] IEHC 363

The high court

[No 626 J.R./2003]

O'REILLY BROTHERS (WICKLOW) LTD v BORD PLEANALA

Judicial Review

In the matter of Section 50 of the planning and DEVELOPMENT act, 2000

(as amended)

Between

O'REilly Brothers (Wicklow) Limited

Applicant

and

An Bord Pleanála

Respondent

and

Wicklow County Council, Gerard Hynes, Chaim Factor, Carol Factor, Sofia Bury and Richard Bury

Notice Parties

PLANNING & DEVELOPMENT ACT 2000 S127(1)(d)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

PLANNING & DEVELOPMENT ACT 2000 S131

PLANNING & DEVELOPMENT ACT 2000 S127

PLANNING & DEVELOPMENT ACT 2000 S127(1)

PLANNING & DEVELOPMENT ACT 2000 S127(2)(a)

PLANNING & DEVELOPMENT ACT 2000 PART VI CHAPTER III

PLANNING & DEVELOPMENT ACT 2000 S126

PLANNING & DEVELOPMENT ACT 2000 S126(2)

PLANNING & DEVELOPMENT ACT 2000 S128

PLANNING & DEVELOPMENT ACT 2000 S129

PLANNING & DEVELOPMENT ACT 2000 S130

PLANNING & DEVELOPMENT ACT 2000 S132

PLANNING & DEVELOPMENT ACT 2000 S133

PLANNING & DEVELOPMENT ACT 2000 S5(2)(b)

PLANNING & DEVELOPMENT ACT 2000 S5(4)

PLANNING AND ENVIRONMENTAL LAW:

Appeal

Accompanying documents - Reasons for appeal - Whether adequate information before Board to deal with appeal - Whether appeal valid - Whether strict compliance -Planning and Development Act 2000 (No 30), s 12791)(d) - Relief refused (2003/626JR - Quirke J - 22/11/2006) [2006] IEHC 363 O'Reilly Bros (Wicklow) Ltd v An Bord Pleanála

The first respondent concluded pursuant to s. 5 of the Planning and Development Act 2000 that the intensification of use of a quarry in Wicklow was development and was not exempted development. The applicant contended that the County Council in referring the matter to the first named respondent had not stated adequately the grounds of referral and that the referral was thus invalid.

Held by Quirke J. that the grounds for referral did not need to be contained in one document. Neither the applicant nor any other party had been prejudiced by the quality of the documentation supplied. The Court would not interfere with the decision

of the first named respondent.

Reporter: E.F.

1 Judgment of Mr. Justice Quirke delivered on the 22nd day of November 2006

2 By Order of the High Court (O'Neill J.) dated 14th January, 2005, the applicant was granted leave to seek certain declaratory and other reliefs by way of judicial review including an Order of certiorari quashing a decision of An Bord Pleanála (hereafter "the Board") made on 3rd July, 2003, in respect of a reference made to the Board by Wicklow County Council (hereafter "the Council") pursuant to the provisions of s. 5 of the Local Government (Planning and Development) Act 1963(hereafter "the Act of 1963") whereby the Board decided that the intensification of use of a quarry at Ballylusk, Ashford in Co. Wicklow, comprised a development and was not an exempted development.

RELEVANT FACTS

3 1. These proceedings relate to a quarry on the applicant's lands at Ballylusk, Ashford in Co. Wicklow. The quarry has been in existence since the mid-nineteenth century. It is acknowledged by the parties that quarrying had been carried out on the relevant lands during the 1940's, 1950's and 1960's and later during the 1980's. The lands were purchased in 1984, by the applicant which carried out quarrying activities during the succeeding years. These activities included drilling, blasting, extracting and crushing.

4 2. On a number of occasions during the 1990's and later, during the months leading up to November 2001, the Council received complaints from landowners adjoining the quarry. The complaints suggested that activities in and on the quarry had intensified so appreciably that they comprised a material change of use of the premises.

5 The Council investigated the complaints during 2001 and 2002 largely through its Executive Planner Ms. Tracey Flanagan and its Administrative Officer, Ms. Louise Casey.

6 A memorandum sent by Ms. Flanagan to Ms. Casey dated 2nd October 2002, outlined, (a) the history of the lands and complaints of alleged intensification of use during the ten years preceding the date of the memo, (b) additional complaints of alleged unauthorised development and, (c) steps taken by the Council (and the Garda Siochána) to issue warnings to the applicant in relation to the intensification of work at the quarry and to reduce the level of quarrying activity.

7 The memorandum concluded with the following recommendation:

" I refer to the recent meeting with David Sweetman, Law Agent, Wicklow County Council and his opinion that, given the lack of legislation for Quarries within the current Planning and Development Act 2000, it would prove difficult to succeed in taking this case to court and being successful.

In this regard and given the ongoing disruptive nature of this development, I consider that it is necessary to pursue this case further. However I recommend that the matter be referred to An Bord Pleanála for their Opinion."

8 3. As a consequence of that recommendation, a letter was sent to the Board. It was signed by Ms. Casey in her capacity as "Administrative Officer in charge of Planning Control" for the Council and it was in the following terms:

" Re: U. D. 649 — O'Reilly Brothers Limited, Ballylusk Quarry, Ashford, Co. Wicklow."

9 A Chara,

10 I wish to apply to An Bord Pleanála for a Declaration and Referral on Development and Exempted development under s. 127 of the Planning and Development Act 2000. This is with a view to determining whether O'Reilly Brothers Limited, Ballylusk, Ashford, Co. Wicklow have intensified the use of this quarry to the extent that planning permission is required. This quarry is pre-1963, but would appear to have increased in scale. However our Law Agent feels that we do not have enough evidence to secure a conviction and has suggested that a reference to An Bord Pleanála would be an appropriate way to determine the matter.

11 I am enclosing the appropriate fee and a full copy of the unauthorised development file. Obviously the names and addresses of the objectors have been given in confidence to the Planning Authority and should not be disclosed to the quarry owners.

12 The objector's Names and Addresses are as follows:

13 1. Chaim and Carol Factor, Ballylusk, Ashford, Co. Wicklow,

14 2. Richard and Sofia Bury, Ballylusk Lodge, Ashford, Co. Wicklow,

15 3. Gerard Hynes, Ballylusk, Ashford, Co. Wicklow.

16 I would appreciate your response on this determination in due course. Please do not hesitate to contact the undersigned, should any further details be required."

17 Accompanying the letter was a file of papers. The papers comprised, (i) random correspondence between Council officials and persons making complaints about the quarry, (ii) further random correspondence between Council officials and the applicant's solicitors in relation to allegations of intensification of use and allegations of excessive noise from the premises, (iii) random memoranda from Council officials to one another, and to and from the Council's Law Agent, (iv) correspondence between an engineer retained on behalf of the applicant and Council officials in relation to complaints of excessive noise and blasting operations on the lands, (v) correspondence between Council officials and members of the Garda Siochána and, (vi) copies of warning notices issued by the Council to the applicant which appeared to allege an unauthorised development of the lands by the applicant, (vii) warning letters which apparently were issued by the Council to the applicant in relation to alleged unlicensed blasting activities, and (viii) other random correspondence including copies of letters between the Council's Planning Department and a firm of Law Searchers.

18 The documents on the file were not paginated in any way and were not in date order. Some of the files comprised no more than a multiplicity of copies of the same document.

19 4. On 28th November, 2002, the applicant was provided with copies of the documentation which had been sent by the Council to the Board, (i.e. the Council's file and the accompanying letter), and was invited to make written submissions and observations upon the referral within a period of four weeks.

20 The applicant responded on 2nd January, 2003 by furnishing the Board with detailed written submissions and observations which included a submission that the reference should fail ab initio for non-compliance with the mandatory statutory provision contained in s. 127(1)(d) of the Act of 2000 which requires that referrals to the Board under the Act, shall inter alia;

21 .. ".. state in full, the grounds of... the referral and the reasons, considerations and arguments on which they are based...."

22 5. Arising out of concurrent invitations, detailed written submissions and observations on the Council's referral were submitted to the Board by the second, third, fourth, fifth and sixth-named Notice Parties.

23 On 13th February, 2003, the Board issued notices to the applicant pursuant to the provisions of s. 131 of the Act of 2000. The notices enclosed copies of the Notice Parties" submissions and observations and invited further submissions and observations on those documents from the applicant.

24 A composite response to the Board's Notices was received from the applicant on 5th March, 2003. That response was contained in a detailed and comprehensive document.

25 6. On 10th March, 2003, the Board again wrote to the applicant enclosing copies of further written submissions which had been received by the Board from the Notice Parties together with notices pursuant to s. 131 of the Act of 2000, inviting additional submissions or observations from the applicant.

26 The applicant responded to the Board's invitation...