Waterford County Council v John A Wood Ltd

JurisdictionIreland
CourtSupreme Court
JudgeMR JUSTICE FRANCIS D MURPHY
Judgment Date01 January 1999
Neutral Citation[1998] IESC 32
Date01 January 1999
Docket Number[S.C. No. 347 of 1997]

[1998] IESC 32

THE SUPREME COURT

347/97
WATERFORD COUNTY COUNCIL v. JOHN A WOOD LTD

Between:

WATERFORD COUNTY COUNCIL
APPLICANT/APPELLANT

AND

JOHN A WOOD LIMITED
RESPONDENT
Abstract:

Planning and development - Planning permission - Quarrying - Case stated - Works - Respondent quarrying limestone on lands since 1952 - Respondent started further quarrying - Quarrying taking place some six miles from original seam - Appellant brought proceedings to injunct such quarrying - Whether quarrying required planning permission - Local Government (Planning and Development) Act, 1963 sections 4 and 24 - Local Government (Planning and Development) Act, 1976, section 27.

Section 24 of the 1963 Act permits a developer to continue works which he had commenced before the appointed day in the Act without the necessity of seeking a planning permission and requires an examination of all the established facts to ascertain what was or might reasonably have been anticipated at the relevant date as having been involved in the works then taking place. The Supreme Court so held in answering the case stated in the affirmative and saying that the quarrying works being carried out on the lands purchased by the respondent in 1986 constituted a distinct operation.

1

JUDGMENT OF MR JUSTICE FRANCIS D MURPHYDELIVERED THE 29TH DAY OF OCTOBER 1998 [NEM DIS

2

The Case Stated herein by Mrs Justice McGuinness on the 30th day of October 1997 for the opinion of this Court raises an important and novel question as to the extent to which development - and more particularly "works" - commenced before the 1st day of October 1964 ( "the appointed day") is excluded from the scope of the Local Government (Planning and Development) Act 1963by virtue of the provisions of s.24 of that Act.

3

The circumstances in which the particular question arises are set out in detail in the case stated but may be summarised as follows. By an agreement in writing dated the 16th September 1952 Richard Looby granted a licence to Agricultural Limestone Limited to "dig,process, remove and carry away limestone" from that part of the lands of Kilgrainey in the County of Waterford containing approximately eight acres and delineated on the map annexed thereto. It appears that Agricultural Limestone Limited commenced quarrying shortly after the date of that agreement but was taken over by the Respondents herein, John AWood Limited, in or about 1969. The eight acres comprised in the 1952 Agreement may be conveniently described as "the original Loobylands". By an indenture of lease dated the 5th day of September 1972 made between the said Richard Looby of the one part and the Respondents of the other part the said Richard Looby demised to the Respondents a further part of the lands of Kilgrainey comprising some thirty-six acres for a term of forty years from the 1st day of January 1970 subject to the various royalty charges thereby reserved. The lands comprised in the 1972 lease may be described as "theadditional Looby lands". In 1986 the Respondents purchased from a Mr Doyle further lands in the town land of Kilgrainey. The conveyance by Mr Doyle is not annexed to the case stated and does not appear to have been exhibited in the High Court proceedings. However, Counsel on behalf of the Respondent explained that the lands included in the 1986 conveyance comprised some ninety-six acres of which only approximately forty acres contained limestone suitable for quarrying. It may be relevant to note that it was further explained that the additional fifty acres approximately were acquired from Mr Doyle because he was unwilling to dispose of the limestone-bearing land separate from the remainder of his take.

4

It is common case that on the appointed day the Respondents were quarrying the original Looby lands and extracting limestone therefrom. Again, it was common case that after the acquisition of the additional Looby lands the Respondents extracted limestone therefrom without any apparent objection from the planning authority. It was only when the Respondents commenced quarrying operations on the Doyle lands in 1995 that proceedings were threatened and ultimately brought by the Waterford County Council as the planning authority for the county of Waterford. The proceedings were brought under s.27 of the Local Government (Planning and Development) Act 1976and on the 16th November 1995 the learned Judge of the Circuit Court refused to grant an injunction restraining the Respondentsfrom carrying out quarrying works on the Doyle lands. It was from that decision that an appeal was taken to the High Court and on that appeal the case was stated herein by the learned High Court Judge. The question posed by the learned Judge was:

"Whether the quarrying operations being carried out by the Respondents in the Doyle lands is development requiring planningpermission".

5

The physical features and more particularly the boundaries of the Looby lands and the Doyle lands are material partly because disputes in relation thereto may have brought the matter to the attention of the planning authority and partly because these boundaries may be of relevance in answering the question posed by the learned trialJudge.

6

It appears that the entire of the Looby lands and that part of the Doyle lands containing recoverable deposits of limestone are all situate within the town land of Kilgrainey, County Waterford and that the combined land holding is bounded on the north by the White Church Road and on the south by the Canty Road. The Looby lands and the Doyle lands are separated by a boithrin which connects the White Church Road to the Canty Road. Local residents contended that there was a public right of way over this boithrin. Whether such a right existed was never finally determined because a sensible agreement appears to have been reached with the local residents involved under which the route was to be maintained subject to the right of the Respondents to close it off from time to time in the interests of safety. That there was and is a modest route, fairly described as a boithrin, separating the Looby lands from the Doyle lands is an objective fact. Finally in relation to material facts, it is important to note that the seam of limestone which had been identified in the original Looby lands in fact extended for a distance of some six miles.

THE ARGUMENTS
7

The Respondents submitted - no doubt correctly - that the issue in the present case did not involve any question as to what constituted "exempted developments" within the meaning or for the purposes of section 4 of the 1963 Act. The issue in this case concerned the proper interpretation of s.24 of that Act which, so far as material, provides as follows:-

8

2 "24(1) Subject to the provisions of this Act, permission shall be required under this Part of this Act:-

9

...

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