O'Reilly v Galway City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IEHC 97
• Docket Number: [No. 1481 J.R./2006]
• Court: High Court
• Date: 26 March 2010

O'Reilly v Galway City Council

BETWEEN

Michael O'Reilly

Applicant

And

Galway City Council

Respondent

[2010] IEHC 97

[No. 1481 J.R./2006]

THE HIGH COURT

PLANNING & DEVELOPMENT LAW

Quarry

Registration - Planning permission and submission of environmental impact assessment - Mandatory requirements of planning legislation - Substantial compliance - Absence of prejudice - Undesirability of quarry operating without planning conditions - Applicable time limit for application - Legislative change - Obligation to register quarry - Correct date of registration - Obligation to supply relevant information - Deficiency in original registration form - Request for further information - Whether correspondence received by applicant - Power to impose conditions within two years of date of registration - Imposition of conditions without prejudice - Requirement to apply for planning permission and submit environmental impact assessment - Failure to publish notice prior to request for observations - Relevant time limits for publication and observations - Whether newspaper notice validly published - Curing of defect - Correspondence between parties - Opportunity to make submissions - European site - Child v Wicklow County Council [1995] 2 IR 447 considered - Planning and Development Act 2000 (No 30), s 261 - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 - Relief refused (20076/1481R - Charleton J - 26/3/2010) [2010] IEHC 97

O'Reilly v Galway City Council

Facts: The applicant owned a quarry which had never been the subject of planning decision. The applicant asked that a decision of the respondent be quashed which required him to apply for planning permission for a quarry and to submit an environmental impact assessment. The applicant contended that the requirements of s. 261 Planning and Development Act 2000 had not been complied with. The respondent pleaded substantial compliance with the Act and that, in the event of such compliance not existing, that the Court should refuse the application on discretionary grounds. Prior to the entry into force of the planning and Development Act 2000, new quarries were required to obtain planning permission. The issue arose as to whether the application for judicial review was made in time on the basis of a six-day delay, as to the validity of the public notice published in a newspaper in light of its timing and whether a registration form had been validly completed. The respondent alleged that the registration form sent by the applicant was deficient. A positive obligation was now cast on quarry owners and operators to register their quarry.

Held by Charleton J. that that an application for judicial review had been made on time and a newspaper notice was validly published in accordance with s. 261 (4) Planning and Development Act 2000, which took place on 12 January, 2006. Any defects in communications to the applicant were cured by the discovery of a letter on the planning file by the agent of the applicant. The applicant chose not to make submissions on the proposal of the respondent but instead to choose a default exemption. The subsequent decision in late 2006 requiring the applicant to apply for planning permission and to submit an environmental impact statement was made well within time. There was compliance with s. 261 of the Act of 2000 in the requirement made of the applicant to apply for planning permission and to submit an environmental impact assessment. A further nine month period would be given from the date of the decision to allow the applicant to comply with this requirement before the respondent would make his final decision.

Reporter: E.F.

PLANNING & DEVELOPMENT ACT 2000 S261

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50(2)(A)

RSC O.84

PLANNING & DEVELOPMENT ACT 2000 S50(2)(A)(i)

PLANNING & DEVELOPMENT ACT 2000 S50(2)(B)(i)

PLANNING & DEVELOPMENT ACT 2000 S265

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S3

INTERPRETATION ACT 1937 S21(1)(C)

CHILD v WICKLOW CO COUNCIL 1995 2 IR 447 1995/1/332

PLANNING & DEVELOPMENT ACT 2000 S2

WILDLIFE (AMDT) ACT 2000 S75

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997

PLANNING & DEVELOPMENT ACT 2000 S7

PLANNING & DEVELOPMENT ACT 2000 S261(1)

PLANNING & DEVELOPMENT ACT 2000 S261(2)

PLANNING & DEVELOPMENT ACT 2000 S261(4)

PLANNING & DEVELOPMENT ACT 2000 S261(5)

PLANNING & DEVELOPMENT ACT 2000 S261(6)

PLANNING & DEVELOPMENT ACT 2000 S261(7)

PLANNING & DEVELOPMENT ACT 2000 S261(8)

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S261(2)(I)

PLANNING & DEVELOPMENT ACT 2000 S261(3)

PLANNING & DEVELOPMENT ACT 2000 S7

PLANNING & DEVELOPMENT ACT 2000 S261(9)

PLANNING & DEVELOPMENT ACT 2000 PART III

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

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S6

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 (COMMENCEMENT) ORDER 2006 SI 525/2006 REG 4

JUDGMENT of

Mr. Justice Charleton

1 The applicant owns a quarry. It never was subject to planning permission. He asks that a decision of the respondent of the 11^th October, 2006, should be quashed. This required him to apply for planning permission in respect of his quarry at Anglinham, Menlo, almost on the shores of Lough Corrib, in the County of Galway, and, in that regard, to submit an environmental impact statement. He never before either had planning permission for his quarry, or as a matter of law, needed it.

2 The applicant principally complains that the requirements of s. 261 of the Planning and Development Act2000 (hereinafter referred to as the Act of 2000) have not been complied with. Without strict compliance with the statutory regime therein set out, the applicant argues that the decision made is unlawful. The applicant claims that the respondent was at sixes and sevens in its purported implementation of the section; not following the appropriate steps as they are set out in the section, making varied attempts to apply different subsections, and proceeding in a way which was out of the order as to time contemplated by the legislation. In the result, the applicant argues, the decision of the respondent of the 11^th October, 2006, is bad. In consequence, the applicant claims to be entitled to pursue his quarrying activity at that site untrammelled by any planning restraints and without the necessity to submit to environmental controls of any kind. The applicant pleads that the requirements under s. 261 of the Planning and Development Act 2000 are mandatory and not directive; since they impose a burden on his property rights they are to be construed in accordance with the form in which they are expressed which, of their nature, does not allow the court to overlook error in favour of substantial compliance.

3 The respondent pleads not only substantial compliance but, in the event of error, says that the court should find an absence of actual prejudice by reason thereof and, even if a case in law is made out, should proceed to refuse the application on the discretionary ground of the undesirability of a quarry operating within a stone's throw of Lough Corrib, without planning conditions relating to the proper planning and sustainable development of this important area.

4 Section 261 of the Planning and Development Act2000 came into force on the 28^th April, 2004. Prior to that time, new quarries were required to obtain planning permission under Part IV of the Local Government (Planning and Development) Act 1963. This came into force on the 1^st October, 1964. Many quarries are, however, of ancient origin. This is said to be one of them, with a history going back to the 17^th Century. Prior to the implementation of the Act of 1963, planning controls were few. Existing developments were exempt from any application of the Act of 1963. For whatever reason, in respect of quarries, this was considered undesirable. In consequence, s. 261 of the Planning and Development Act 2000 has a legislative purpose of enabling local authorities to decide to bring quarries within planning control for the first time. This means that quarries would, in effect, have planning conditions imposed on them, be required to submit a planning application accompanied by an environmental impact statement, or to have existing planning conditions modified. The first point raised in this application relates to the jurisdiction being exercised by the court. The respondent claims that the applicant is out of time in making this application and that it is, in consequence, to be dismissed. The respondent further claims, notwithstanding the full exchange of pleadings and affidavits, that what is before the court is an application for leave to commence judicial review proceedings. The applicant counter argues by observing that as a matter of law the application is made within time and is one for a final order.

5 The relevant decision was made on the 11^th October, 2006. Under S.I. 525 of 2006, s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006 was brought into force. Section 50 of the Principal Act, which has been substituted by s. 13, now provides as follows:-

"Judicial review of applications, appeals, referrals and other matters."

6 2 50- (1) Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision.

7 (2) A person shall not question the validity of any decision made or other act done by-

8 (a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

9 (b) the Board in the performance or purported performance of a...