Sweetman v Shell E & P Ireland Ltd and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 14 March 2006
• Neutral Citation: [2006] IEHC 85
• Docket Number: [2005,Record No. 17 MCA/2005
• Date: 14 March 2006

[2006] IEHC 85

THE HIGH COURT

Record No. 17 MCA/2005

SWEETMAN v SHELL E & P IRELAND LTD & ORS

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF

THE PLANNING AND DEVELOPMENT ACT, 2000

AND

IN THE MATTER OF THE LOCAL GOVERNMENT (WATER POLLUTION)

ACT, 1977– 1990

AND

IN THE MATTER OF THE WASTE MANAGEMENT ACT 1996– 2003

BETWEEN/

PETER SWEETMAN

Applicant

- and -

SHELL E&P IRELAND LIMITED AND LENNON QUARRIES LIMITED AND T.J. LENNON

Respondents

WASTE MANAGEMENT ACTS 1996-2003

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVT (WATER POLLUTION) ACTS 1977-1990

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

FURLONG v MCONNELL 1990 ILRM 48 1989/5/1512

DUBLIN CORPORATION v MCGOWAN 1993 1 IR 405

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

BARRETT (BUILDERS) LTD v DUBLIN CO COUNCIL UNREP SUPREME 28.7.1983 1983/7/1929

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

KENNY v BORD PLEANALA & ORS 2001 1 IR 565

WESTPORT UDC v GOLDEN & ORS 2002 1 ILRM 439

CAHILL v SUTTON 1980 IR 269

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 1 CLASS 16

PLANNING & DEVELOPMENT ACT 2000 S2

MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 14

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 15

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 17

PLANNING & DEVELOPMENT ACT 2000 S4(1)(f)

KENNY v DUBLIN CITY COUNCIL UNREP MURPHY 8.9.2004 2004/25/5888

O'CONNOR v DUBLIN CORPORATION & BORG DEVELOPMENTS LTD UNREP O'NEILL 3.10.2000 2000/14/5399

FINGLAS INDUSTRIAL ESTATES LTD, STATE v DUBLIN CO CO UNREP 17.02.83 1983/2/421

MCINERNEY & CO LTD, STATE v DUBLIN CO COUNCIL 1985 IR 1

PLANNING & DEVELOPMENT ACT 2000 S34(3)(g)

AVENUE PROPERTIES LTD v FARRELL HOMES LTD 1982 ILRM 21

WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374

MORRIS v GARVEY 1983 IR 319

LEEN v AER RIANTA 2003 4 IR 394

DUBLIN CO COUNCIL v MANTRA INVESTMENT LTD 1980 ILTR 201

GRIMES v PUNCHESTOWN DEVELOPMENTS CO LTD & MCD PROMOTIONS LTD 2002 1 ILRM 409

MOUNTBROOK HOMES LTD v OLDCOURT DEVELOPMENTS LTD UNREP PEART 22.4.2005 2005/40/8224

O'CONNELL v DUNGARVAN ENERGY LTD UNREP FINNEGAN 27.2.2000 2001/18/5119

LEVER (FINANCE) LTD v WESTMINISTER CORPORATION 1973 AER 496

CORK CO COUNCIL v CLIFTONHALL LTD & ORS UNREP FINNEGAN 6.4.2001 2001/4 /825

ALTARA DEVELOPMENTS LTD & CROSSAN v VENTOLA LTD UNREP O'SULLIVAN 6.10.2005

MAHON v BUTLER 1998 1 ILRM 284

STAFFORD v ROADSTONE 1980 ILRM 1

DUBLIN CO COUNCIL v SELLWOOD QUARRIES LTD 1981 ILRM 23

DUBLIN CORPORATION v MULLIGAN UNREP FINLAY 6.5.80 1980/5/969

DUBLIN CORPORATION v LOWE & SIGNWAYS HOLDINGS LTD UNREP HIGH COURT MORRIS 4.2.2000 2000/6/2107

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Enforcement -- Non-compliance with conditions - Deposition of excavated material on neighbouring lands - Interpretation of conditions - Exempted development - Whether substantial compliance with conditions -Whether works incidental to planning permission - Whether works exempted development - Whether planning permission to be read as a whole - Security to reinstate the site - Adequacy of security - Exclusive jurisdiction of planning authority - Whether form and amount of security to be left to planning authority - Whether security adequate- Monaghan UDC v Alf-a-Bet Promotions Ltd [1980] ILRM 64 considered - Planning and Development Regulations 2001 (SI 600/2001),class 16, part I, schedule 2 - Planning and Development Act 2000 (No 30), ss 4(1)(f) and160 - Relief refused (2005/17MCA - Smyth J- 14/3/2006) [2006] IEHC 85 Sweetman v Shell E & P Ireland Ltd

The applicant sought inter alia a declaration that all of the works carried out by Shell were unauthorised, unlawful and in breach of planning permission.

Held by Smyth J. in dismissing the application that it would be untruthful to say that Shell had failed to comply with any of the terms and conditions of the planning permission or carried out any unauthorised development as alleged in these proceedings.

Reporter: P.C.

1 APPROVED JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON TUESDAY, 14TH DAY OF MARCH 2006

2 MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

3 These proceedings relate to a development by the first Respondent ("Shell) of a gas terminal near Bellanaboy Bridge in County Mayo for the reception and separation of gas from the Corrib Gas Field and a peat deposition site. Development was sanctioned on foot of a planning permission granted by An Bord Pleanala ("the Board") on 22nd October 2004 under register reference 03/3343 which is subject to 42 conditions (the "Planning Permission"). I was informed by counsel at the hearing of the action that no work or development has taken place on the site since approximately July 2005.

4 The applicant is a photographer and resides at 73, Grosvenor Road, Dublin. He avers he has a keen interest in the environment and in protecting the Irish countryside, he says that on most week-ends over the course of the period March 2001–2005, he stayed within sight of Shell's site the subject matter of these proceedings. Further he states that he has devoted a lot of his time to protecting the environment and in particular, areas of special amenity rich in wild life and plant life. He is a member of An Taisce and of the Irish Heritage Trust.

5 The Applicant instituted Judicial Review proceedings (Record No. 1165JR/2004) to which Shell with others was a co-respondent. Judicial review proceedings were also issued by a Martin Harrington against Shell and others (Record No. 1164/2004 JR) the general purpose of which was to quash the decision of the Board granting the planning permission. Both proceedings aforesaid were the subject of a judgment of Mrs. Justice Macken on 13th April, 2005. Both sets of proceedings were with the agreement of the parties dismissed.

6 On or about the 15th January 2005 the Applicant's Chartered Civil Engineer Mr. Ron Bergin received instructions from the Applicant's solicitors advising him (Mr. Bergin) that certain works were being carried out on lands near Bellinaboy Bridge, County Mayo the subject matter of the permission. Both the Applicant and Mr. Bergin swore affidavits in these proceedings on 9th March 2005 and on the following day Quirke, J. enlarged the time to issue and serve the Notice of Motion (in these proceedings) and fixed a return date of 16th March 2005. On that date, Quirke, J. ordered that Mr. Bergin on 24 hours notice to the 2nd and 3rd defendants be at liberty to inspect the quarry lands of the 2nd and 3rd Respondents situate at Glencastle, Bunnahowen, Belmullet, County Mayo, it was further ordered that Mr. Bergin on:

7 1) the completion of a Health and Safety course of Shell

8 2) 48 hours notice to Shell

9 3) Under the supervision of Shell

10 be at liberty to inspect the development being carried out by Shell of the gas terminal site on the lands situate at Ballagelly South, Bellanaboy Bridge, Co. Mayo.

11 The order fixed the time for filing affidavits to 31st March 2005 with the entitlement to the Applicant to serve any replying affidavit before 4th April 2005.

12 On the matter being referred to me in mid-February, 2006, the Applicant through junior counsel sought to file a further affidavit. In the light of the Order of Quirke, J. the respondent opposed the application and as the matter was twice listed for hearing but not reached in the Court lists. Having ascertained that the purpose of the replying affidavit was to exhibit a new draft Development Plant of Mayo County Council (the "Planning Authority") I determined that the Applicant not be disadvantaged and that as this was a document in the public domain and prepared under statutory authority that the parties be entitled to refer to it at the hearing, notwithstanding the late application for its admission. On the hearing no such document was produced or considered.

13 The reliefs sought by the Applicant may be broadly described as:-

14 I A declaration that all of the works carried out by Shell on its site at Bellyagelly South, Bellinaboy Bridge, Co. Mayo are unauthorised, unlawful and in breach of the planning permission.

15 II A range of inhibiting injunctions against Shell prohibiting:

16 (a) the carrying out any works on lands other than lands within the red line of the planning application map.

17 (b) the implementation of any part of development authorised by the planning permission.

18 (c) the discharge of polluting matter into waters and/or storing excavated material in such quantities, in such a manner at such locations as the run-off must inevitably discharge such materials into adjoining water sources.

19 (d) the excavation of and/or removal of and/or dealing in any materials whatsoever from the quarry facility of the 2nd and 3rd Respondent situate at Bunnahowen, Glencastle, Belmullet, Co. Mayo unless and until the 2nd and 3rd Respondent and/or the 3rd Respondent is in receipt of a full and valid grant of planning permission.

20 (e) Respondents to cease all works on the lands situate at Bellyagelly South, Ballanaboy Bridge, Co. Mayo.

21 III A range of mandatory injunctions require:

22 (a) the restoration of lands upon which it is alleged unauthorised development has been carried out to its original condition as existed prior to the carrying out of the alleged unauthorised development.

23 (b) Shell to cease all works of opening entrances from the public road onto lands at Rossport South, Ballina, Co. Mayo unless and until it has obtained a valid grant of planning permission in respect of such developments.

24 (c) Shell to cease...