Shillelagh Quarries Ltd v an Bord Pleanála (No 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 27 June 2012
• Neutral Citation: [2012] IEHC 257
• Court: High Court
• Date: 27 June 2012

[2012] IEHC 257

THE HIGH COURT

RECORD NO: 154JR/2011

Shillelagh Quarries Ltd v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2010 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT 2000 (AS AMMENDED) AND IN THE MATTER OF AN APPLICATION

BETWEEN:

SHILLELAGH QUARRIES LIMITED

APPLICANT

-V-

AN BORD PLEANÁLA

RESPONDENT

SOUTH DUBLIN COUNTY COUNCIL & DUBLIN MOUNTAIN CONSERVATION AND ENVIRONMENTAL GROUP

NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2000 PART VIII

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S261(3)

PLANNING & DEVELOPMENT ACT 2000 S261(4)

PLANNING & DEVELOPMENT ACT 2000 S261(7)

PATTERSON v MURPHY & TRADING SERVICES LTD 1978 ILRM 85

EEC DIR 85/337

PLANNING & DEVELOPMENT ACT 2000 S50A(2)(B)

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

AN TAISCE v IRELAND & ORS UNREP CHARLETON HIGH 25.11.2010 2010/2/503 2010 IEHC 415

O'REILLY v GALWAY CITY COUNCIL UNREP CHARLETON HIGH 26.3.2010 2010/42/10542 2010 IEHC 97

PLANNING & DEVELOPMENT ACT 2000 S261(8)(B)

PLANNING & DEVELOPMENT ACT 2000 S50

COMMISSION v IRELAND C215/06 1998 ECR I-4911

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT ACT 2000 S261(7)(A)(II)

PIERSON & ORS v KEEGAN QUARRIES LTD UNREP IRVINE 8.12.2009 2009/46/11557 2009 IEHC 550

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PARA 8.136

PLANNING & DEVELOPMENT ACT 2000 S261(7)(A)

PLANNING & DEVELOPMENT ACT 2000 S261(4)(iii)(II)

Quarries - Retention permission - Change of use - Intensification of use - Whether intensification amounting to change of use - An Bord Pleanala - Jurisdiction of planning appeals board - Whether An Bord Pleanala bound by prior finding of county council - Whether decision of An Bord Pleanala lawful - Environmental impact assessment - Necessity of - Whether environmental impact assessment can be validly dispensed with - Leave to seek judicial review - Whether substantial grounds for contending that decision invalid and ought to be quashed - Whether leave to seek judicial review should be granted - Planning and Development Act 2000, section 261.

Facts section 261(8) (b) of the Planning and Development 2000 provides:- "Where, in relation to a quarry to which subsection (7) applies, a planning authority, or the Board on appeal, refuses permission for development under section 34 or grants permission there under subject to conditions on the operation of the quarry, the owner or operator of the quarry shall be entitled to claim compensation under section 197…". The applicant applied to register its quarry and, as required by section 261 of the Planning and Development Act 2000, it provided Dublin County Council with the relevant information relating to the operation of the quarry. The Council published a notice pursuant to section 261(4) of the Act of 2000, advising that the quarry had been registered and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry. The Council granted permission for the continued use of the quarry subject to conditions. Appeals were lodged with the respondent in relation thereto. The respondent determined that the quarry operated by the applicant had not commenced operations prior to the 1st October 1964 and did not have planning permission and that it was precluded, by virtue of such unauthorised status, from considering a grant of planning permission. It further determined that the development for which permission was sought was of a class that required Environmental Impact Assessment in accordance with the requirements of EU Directive 85/337/EEC. The applicant submitted that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the respondent to go behind that determination when considering the consequential planning application. If that was not the case the provision of section 261(8) (b) would be anomalous.

Held by Mr Justice Hedigan in refusing leave to seek judicial review, 1, that the respondent was not precluded by the anterior finding of the County Council from concluding that the quarry commenced operations before the 1st October 1964 and was obliged to carry out its own assessment of the planning status of the quarry. An Taisce v Ireland [2010] IEHC 415 applied.

2. That intensification could amount to a change of use thus requiring a planning application.

3. That there had been compelling evidence before the respondent upon which it could reach the conclusion that although the quarry had commenced prior to the 1st October 1964 there was intensification of use such that it amounted to a change of use disentitling the applicants to an exemption on the basis of pre-1964 status.

4. That development, which would otherwise be required to undergo the environmental impact assessment process, could not be given ex post facto development consent under EU Law.

1 Judgment of Mr. Justice Hedigan delivered the 27th day of June 2012

2 1. The applicant is a limited liability company carrying on business as the operator of a quarry. Its address is Aghfarrell, Brittas, Co Dublin. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts. The first notice party is the County Council with responsibility for the administrative area of South Dublin. The second notice party is a Conservation and Environmental Group concerned with the Dublin mountains. Their nominated agent is O'Connell & Clarke Solicitors whose address is Suite 124, The Capel Building, Mary's Abbey, Capel Street, Dublin 7.

3 2. The applicant seeks the following relief:-

4 (i) An order of certiorari quashing the decision of An Bord Pleanála ("the Board") the respondent herein, dated the 24 ^th December 2010, bearing South Dublin County Planning Register Reference Number SD07A/0276 and An Bord Pleanála Reference Number PL 06S. 231371 whereby the Board refused permission for:-

5 (a) Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964 on a site registered under Section 261 of the Planning and Development Act, 2000 (Quarry Reference SDQU05A/1);

6 (b) all existing ancillary facilities including the existing processing plant (crushing and screening plant), overburden storage areas, stockpile areas, water management system and the truck/vehicle partaking area;

7 (c) extension of the existing quarry extraction area by 4.2 hectares, within the registered area to give a total extraction area of 15.5 hectares within an overall application area of 28.1 hectares;

8 (d) provision of a wheelwash and hydrocarbon interceptor;

9 (e) landscaping and final restoration of a site.

10 (ii) A declaration that the quarry the subject of the Board's decision (the Quarry) commenced operations prior to the 1 ^st October 1964.

11 (iii) A declaration that the quarry is not unauthorised.

12 (iv) If required, a stay on any proceedings pursuant to part VIII of the Planning and Development Act 2000 and/ or any proceedings in respect of any alleged breach of planning legislation in respect of the Quarry pending the final determination of the proceedings herein.

Background

13 2 3.1 The applicant is the operator of a quarry at Aughfarrell, Brittas, in County Dublin. On the 20 ^th of October 2005, the applicant's agents provided South Dublin County Council with the information relating to the operation of the quarry as required by section 261 of the Planning and Development Act 2000, which deals with the requirement to register quarries. The Council sought further information relating to the operation of the quarry pursuant to section 261 (3) of the 2000 Act. The applicant provided this information. The Council then published a notice in the Irish Times pursuant to section 261(4) of the 2000 Act, advising that the quarry had been registered in accordance with section 261 and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry and inviting submissions regarding the operation of the quarry. A submission was made in response to that notice by the Dublin Mountain Conservation and Environmental Group (the 'DMC&EG'), the second notice party herein.

14 3 3.2 On the 19 ^th April, 2006, the Council issued a notice in accordance with section 261(7) of the 2000 Act requiring the applicant to apply for planning permission and submit an environmental impact statement in respect of the continued operation of the quarry. On the 23 ^rd September 2008, a notification issued in respect of the Council's decision to grant permission for the continued use of the quarry subject to conditions. The Dublin Mountain Conservation and Environmental Group lodged a third party appeal in respect of the Council's decision to grant permission and the applicant's agents lodged a first party appeal against five of the conditions of the said decision to grant permission.

15 4 3.3 On the 24 ^th December 2010, An Bord Pleanála refused permission in respect of the planning application for the continued use of the Quarry. The reasons for the decision were as follows:-

16 2 "1. On the basis of the submissions made in connection with the planning application and the appeal, the planning history of the site, High Court Judgement Ref. No. [1978] ILRM 85 ( Frank Patterson and Eily Patterson v. Martha Murphy and Trading Services Ltd.), and available aerial photography, the Board is not satisfied that the existing quarrying operations presently conducted on site commenced prior to the appointed...