Ryan v Roadstone Dublin Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid B. O'Donovan
• Judgment Date: 06 March 2006
• Neutral Citation: [2006] IEHC 53
• Court: High Court
• Docket Number: [No. 27 M.C.A./2004]
• Date: 06 March 2006

[2006] IEHC 53

THE HIGH COURT

[No. 27 M.C.A./2004]

RYAN v ROADSTONE DUBLIN LTD

BETWEEN

WILLIAM RYAN

APPLICANT

AND

ROADSTONE DUBLIN LIMITED

RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S160(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LANCEFORT LTD v BORD PLEANALA UNREP MORRIS 13.5.1997 1998/23/8994

READYMIX (EIRE) LTD v DUBLIN CO COUNCIL & MIN FOR LOCAL GOVT UNREP SUPREME 30.7.74

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

PROPERTY VALUES (ARBITRATION & APPEALS) ACT 1960

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 - 1983

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

DUBLIN CITY COUNCIL v LIFFEY BEAT LTD 2005 1 IR 478

DUBLIN CORPORATION v SULLIVAN UNREP FINLAY 21.12.1984 1985/1/181

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

MORRIS v GARVEY 1983 IR 319

LEEN v AER RIANTA 2003 4 IR 394

WATERFORD CO COUNCIL v JOHN A WOOD LTD 1999 1 ILRM 217

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Conditions attached to grant of planning permission - Failure to implement conditions- Application for relief in respect thereof -Validity of planning permission -Interpretation of planning permission - Onus of proof - Discretion of the court - Whether applicant established contravention of conditions - Lancefort Ltd v An Bord Pleanála (Unrep, Morris J, 13/5/1997);Readymix Eire Ltd v Dublin City Council (Unrep, SC, 30/7/1974); In re XJS Investments Ltd [1986] IR 750; Dublin City Council v Liffey Beat Ltd [2005] IEHC 82(Unrep, Quirke J, 10/3/2005); Dublin Corporation v Sullivan (Unrep, Finlay P,21/12/1984) and Morris v Garvey [1983] IR156 considered - Planning and Development Act 2000 (No 30), s 160 - Relief refused(2004/27MCA - O'Donovan J - 6/3/2006)[2006] IEHC 53 Ryan v Roadstone Dublin Ltd

Facts: the applicant complained that certain conditions which were attached to a planning permission granted to the respondent for a waste recovery facility at its site adjacent to the applicant’s house, were being breached on a regular basis. He sought injunctive relief against the respondent pursuant to section 160 of the Planning and Development Act 2000 in respect of those allegations. His factual assertions to support the application were contradicted by the respondent. The applicant did not seek to cross-examine the deponent’s who contradicted his assertions.

Held by Mr Justice O’Donovan in refusing the relief sought that a planning permission and its conditions had to be interpreted objectively in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers, unless such documents, read as a whole, necessarily indicated some other meaning. An applicant who complained that conditions of a planning permission were being breached had to meet the onus of proving such allegations. The applicant had not met the onus in establishing that the respondent had contravened the conditions to which its recovery facility was subject.

Reporter: P.C.

Mr. Justice Diarmuid B. O'Donovan

1 The respondents, Roadstone Dublin Limited, are the registered full owners of certain lands comprising 200 hectares located at Huntstown Quarry in the townlands of Huntstown, Grange, Cappogh, Coldwinters, Johnstown and Kilshane, Finglas in the Co. Dublin (hereinafter referred to as "the Huntstown Quarry") being the lands comprised in folios 2889, 3291, 6793, 8115, 18240, 18734, 8999, 30351F, 8118 and 19138 of the register of freeholders for the county of Dublin.

2 At the time of the events which gave rise to these proceedings, the main entrance to the Huntstown Quarry was located off the N2 national primary road at North Road, Coldwinters, Finglas, Dublin 11; a location which was then frequented by a very high volume of traffic, so much so that it was asserted by the respondents to be among the busiest roads in the State, an assertion which was not disputed, or challenged, by the applicant. Neither did the applicant challenge the further assertion on behalf of the respondents that, at the material time, there was, in the immediate vicinity of the main entrance to the Huntstown Quarry a number of sites upon which construction was being carried on and a quarrying facility belonging to another operator.

3 The Huntstown Quarry, at which the respondents carry on a quarrying facility, has been operational for in excess of 30 years and supplies to a significant portion of building sites located in the north area of Dublin city and surrounding counties.

4 The applicant is a member of the Garda Siochána and resides at Coldwinters, North Road, Finglas in the city of Dublin; a dwelling which is located some 15 meters from the main entrance to the Huntstown Quarry. The applicant came to reside at the said dwelling in or about the year 1997.

5 The new N2 national primary road, the construction of which was completed after the events which gave rise to these proceedings, now runs directly behind the applicant's dwelling.

6 By order dated the 19th day of May, 1994, following an appeal, An Bord Pleanála granted permission to the respondents under planning register reference number 93 A/1134 to retain indefinitely the plants, buildings, services and ancillary developments and to quarry the northern, western and central limestone deposit at their 200 hectare Huntstown Quarry aforesaid subject (inter alia) to a condition (condition 6) that "effective measures shall be taken by the developer to prevent the deposition of mud, dust and other materials on the adjoining public highways caused by vehicles leaving the site". (The emphasis is mine). In that regard, the said permission was also subject to the condition that "detailed proposals for wheel washing facilities in the site and for the spraying of water on to road surfaces shall be submitted to the planning authority for agreement and shall be implemented by the developer, as required by the planning authority". The expressed reason for that condition was "in the interest of the proper planning and development of the area". (This permission is hereinafter referred to as "the principal permission").

7 There was a further condition of the grant of the principal permission that"no development shall take place in the area outlined in the submitted drawings as the western quarry area without a grant of approval by the planning authority or by An Bord Pleanála".

8 By order dated the 7th day of March, 2003, following an appeal by the applicant, An Bord Pleanála granted permission to the respondents under planning register reference number FO1A/0231 for development comprising extraction and processing of the limestone of the western deposit (two No. 18 meters benches bycirca 9.7 hectares plan area within circa 19.5 hectares area of western deposit) pursuant to condition number 1 of planning register reference number 93A/1134 subject (inter alia) to the condition (condition 13) that "all vehicles carrying quarried or other dust producing materials to or from the site shall be securely sheeted"; the expressed reason for the said condition being "to protect amenities of the area". (This permission is hereinafter referred to as "the western quarry permission").

9 By order made on the 16th day of April, 2003, under planning register reference number F02A/0602, following an appeal by the respondents, An Bord Pleanála granted permission to the respondents for the recovery of pre-sorted construction and demolition waste (namely concrete, bricks, tiles and ceramics and asphalt) on a 1.5 hectare site within the existing land holding at Huntstown Quarry aforesaid. The said permission was granted subject to the conditions (inter alia) (conditions 6 and 8) that "all vehicles carrying materials to or from the subject site shall be securely sheeted" the expressed reason being "in the interest of road safety" and "effective steps shall be taken by the operator to prevent the deposition of mud, dust and other materials on the adjoining public highways caused by vehicles visiting and leaving the site" the expressed reason being "in the interest of road safety and the general amenity of the area". (The emphasis is mine). (The said permission is hereinafter referred to as the "recovery facility permission").

THE COMPLAINT

The applicant's complaint against the respondents is that, at all material times, they have failed to comply with the conditions to which the planning permissions aforesaid were subject with the result that there has been a deposition and accumulation of dust, mud and other materials on the public highway adjoining the main entrance to the Huntstown Quarry and on the public road and foot path adjacent to the applicant's house and garden.

1 An order pursuant to s. 160 of the Planning and Development Act,2000, directing the respondents, its servants or agents, to carry out development at or near its premises at Huntstown Quarry in conformity with the several permissions pertaining to that development and all conditions to which the said permissions are subject.

2 In particular, an order requiring the respondents, its servants or agents, to carry out the said development in conformity with;

(b) Condition 13 to which the western quarry permission was subject, and

(c) Conditions 6 and 8 to which the recovery facility permission was subject.

(a) Condition 6 to which the principal permission was subject,

3 (If necessary) an order pursuant to s. 160 (3) of the Planning and Development Act,2000, restraining the respondents, its servants or agents, and any person having notice of the order, pending the determination of these proceedings, from taking any further steps or carrying out any further operation of the quarry development at the said premises in contravention of the said conditions.

1 It is, I think, relevant...