Roadstone Provinces Ltd v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 04 July 2008
• Neutral Citation: [2008] IEHC 210
• Court: High Court
• Docket Number: [No. 419 J.R./2007]
• Date: 04 July 2008

Roadstone Provinces Ltd v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF

THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED BY THE

PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006)

BETWEEN

ROADSTONE PROVINCES LTD.

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

WICKLOW COUNTY COUNCIL

NOTICE PARTY

[2008] IEHC 210

[No. 419 J.R./2007]

[COM/2007]

The High Court

PLANNING AND DEVELOPMENT

Development

Exempted development - Quarry - Unauthorised works - Intensification of use -Whether future planned use of lands constituted material change in use of the lands - Whether question of fact to be determined independently of planning considerations - Proper sequential approach - Whether intensification affected proper planning and development of area - Whether any finding of fact that there would be a change in use in applicant's lands by reason of planned southward expansion of quarried area - Whether any proper determination in accordance with law that expansion of quarried area constituted a material change in use of lands - Monaghan County Council v Brogan [1987] IR 333 followed; Waterford County Council v John A. Wood Ltd [1999] 1 IR 556 distinguished; Kildare County Council v Goode [1999] 2 IR 495 and Galway County Council v Lackagh Rock Ltd [1985] IR 120 considered - Planning and Development Act 2000 (No 30), ss 2(1), 3(1), 5(4), 32(1),160 and 261- Certiorari granted (2007/419JR - Finlay Geoghegan J - 4/7/2008) [2008] IEHC 210

Roadstone Provinces Ltd v An Bord Pleanála

Facts: development is defined in section 3 of the Planning and Development Act 2000 as meaning “…the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land”. The applicant had operated a quarry since prior to 1964 in the notice party’s functional area. The notice party, following submissions to it from residents of the area who were concerned that the quarrying was being extended so as to remove a geographic feature of the area, Arklow Rock, referred, pursuant to section 5 of the Act of 2000, to the respondent the question as to whether that intended quarrying was development which would require planning permission. The respondent decided that “the further southward expansion of the quarried area into Arklow Rock…is development and is not exempted development”. In reaching that conclusion, the respondent had re-formulated the question posed to it by the notice party as “whether the further southward expansion of the quarried area…would impact on the form, character and quality of the landscape to such an extent as to be considered an intensification of use that would amount to a material change of use of the lands [and as such not be considered exempted development]”. The applicant contended that the respondent had erred in law in its approach to considering and determining whether the planned expansion constituted a material change of use and obtained leave to seek to challenge that decision by way of judicial review from the High Court.

Held by Ms Justice Finlay Geoghegan in granting an order of certiorari that:

1. Intensification of use could amount to a change in use of lands and if such intensification was material for planning purposes, then it would amount to a material change in use.

2. That whether the planned use of the lands (extension of quarrying area) amounted to an intensification of use such that it constituted a change from its pre-1964 use was a question of fact, which had to be determined independently of planning considerations.

3. That the respondent had not made any finding of fact that there would be a change in use of the applicant’s lands by reason of the planned southward expansion of quarrying. In the absence of such a finding, there had not been any proper determination that the planned expansion constituted a material change in use of the lands within the meaning of section 3 of the Act of 2000 and, as such, development. The respondent fell into error in deducing an intensification of use from its conclusion that the planned future use of the site compared with its pre-1964 use would raise new planning issues.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006

PLANNING & DEVELOPMENT ACT 2000 S5(4)

PLANNING & DEVELOPMENT ACT 2000 S4

PLANNING & DEVELOPMENT ACT 2000 S3(1)

MONAGHAN CO COUNCIL v BROGAN 1987 IR 333

PLANNING & DEVELOPMENT ACT 2000 S3

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S32

PLANNING & DEVELOPMENT ACT 2000 S32(1)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S24

PLANNING & DEVELOPMENT ACT 2000 32(1)(b)

PLANNING & DEVELOPMENT ACT 2000 S2(1)

WEXFORD CO COUNCIL v WOOD LTD 1999 1 IR 556

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1976 S27

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S24(1)

KILDARE CO COUNCIL v GOODE CONCRETE 1999 2 IR 495 2000 1 ILRM 346

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S261(6)

PLANNING & DEVELOPMENT ACT 2000 S261(7)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT ACT 2000 S127

PLANNING & DEVELOPMENT ACT 2000 S128

PLANNING & DEVELOPMENT ACT 2000 S129

PLANNING & DEVELOPMENT ACT 2000 S130

PLANNING & DEVELOPMENT ACT 2000 S131

PLANNING & DEVELOPMENT ACT 2000 S132

GALWAY CO COUNCIL v LACKAGH ROCK 1985 IR 120

JUDGMENT of

Ms. Justice Finlay Geoghegan

delivered on the 4th day of July, 2008

1 The applicant is the owner and operator of a quarry at Rockbig, Arklow, County Wicklow. For the purposes of this application, it is assumed to have been the owner and operator of the quarry since prior to the appointed date (i.e. 1^st October, 1964) for the purposes of the Planning Acts.

2 By letter of 22^nd August, 2006, the notice party referred a question pursuant to s.5 (4) of the Planning and Development Act, 2000, to the respondent "as to whether development being undertaken by Roadstone Ltd. at their quarry at Rockbig, Arklow, County Wicklow, is or is not exempted development".

3 By decision issued by the respondent on 26^th February, 2007, it determined:

4 a "(a) quarrying operations to date on site are exempted development and,

5 (b) the further southward expansion of the quarried area into Arklow Rock at Rockbig, Arklow, County Wicklow, is development and is not excepted development."

6 4. By order of 31^st October, 2007, I granted leave to the applicant to seek inter alia an order of certiorari quashing the decision of the respondent dated 26^thFebruary, 2007, "that the further southward expansion of the quarried area into Arklow Rock at Rockbig, Arklow, County Wicklow, is development and is not exempted development". That order was made following a contested application for leave.

7 5. The grounds upon which leave was granted are alleged errors of law of the respondent, its servants or agents, in answering the question of the notice party. The individual grounds pursued at the hearing are referred to later in the judgment.

8 6. It appears from the letter of referral of the notice party that complaints were received by it from individuals in the vicinity of the quarry at Rockbig, Arklow. The notice party examined the complaints and held a special meeting on 3^rd August, 2006, at which it was agreed that it submit a s.5 referral to the respondent on the basis that it was considered that intensification had taken place at the quarry. The notice party obtained certain further documentation and in the letter of referral indicated inter alia the following:

9 · "· Planning authority has accepted the pre-64 status of the quarry.

10 · Planning authority has determined the Section 261 registration and has required Roadstone to submit a planning application together with an EIS prior to April 2007.

11 · Roadstone appear to be the owner of all the lands enclosed within the quarry boundary, with the exception of some minor areas, from before the appointed day.

12 · Planning permissions have been granted from 1970 to 2005 for various ancillary activities within the quarry. No permissions have been granted for quarrying".

13 7. The notice party then stated under a heading "Grounds of Referral":

"Having considered all the information gathered following the Planning Authority's investigations, the discussions with the local area councillors, and the submissions by third partys in relation to a meeting with Roadstone, it would appear that the current and planned extraction may lead to the removal of Arklow Head in its entirety. This would have a material effect on the views from the south of Clogga by removing an important part of the local landscape. Having regard to the planned extension of the quarrying activity and its resultant impact on the form, character and quality of the landscape, which would be irrevocably altered, the Planning Authority is now of the opinion that the current and planned quarrying may represent a material change of use. On this basis the planning authority would request the Bord to decide whether or not the quarrying activity at Arklow Head is or is not exempted development."

14 8. On 26^th September, 2006, the applicant made a submission to the respondent in response to the referral. It disputed the factual assertion that the current and planned extraction may lead to the removal of Arklow Head in its entirety. It lodged plans indicating the impact on Arklow Head of the current and proposed final extent of the quarry extraction area. These disclosed a reduction in the height of Arklow Head which it was contended was not its removal.

15 9. The applicant disputed that there was a material change in use arising from the current or planned use of the quarry. It set out the...