Westmeath County Council v Quirke & Sons

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 23 May 1996
• Neutral Citation: 1998 WJSC-HC 13134
• Docket Number: No 38 MCA/1994
• Court: High Court
• Date: 23 May 1996

1998 WJSC-HC 13134

THE HIGH COURT

No 38 MCA/1994

WESTMEATH COUNTY COUNCIL v. QUIRKE & SONS

IN THE MATTER OF SECTION 27(1) OF THE LOCAL GOVERNMENT (PLANNING &

DEVELOPMENT) ACT, 1976 AS AMENDED BY SECTION 19(4) OF THE LOCAL

GOVERNMENT (PLANNING & DEVELOPMENT) ACT, 1992

BETWEEN

WESTMEATH COUNTY COUNCIL

APPLICANT

AND

MICHAEL F. QUIRKER & SONS

RESPONDENTS

1 Judgment delivered by Mr. Justice Declan Budd on the 23rd day of May 1996

2 The Applicant is the Local Authority with responsibility for planning and development for Co. Westmeath. The Respondents are an unlimited liability company owned and controlled by the Quirke family. Among them are experienced quarrymen who started from a base in Co. Kerry. The Applicant seeks an injunction restraining the Respondents from carrying out quarrying at Coolatoor Quarry unless or until the Respondents obtain a grant of planning permission in respect of such development under Part IV of the Local Government (Planning & Development) Act, 1963(the "1963 Act"). This old quarry is on the back or county road 396 between the village of Rosemount to the south and Ballymore to the north. The quarry is on the east side of the county road above the 300 foot contour line on the side of a hill. The land to the east of the quarry rises up, unusually for the flat countryside of Co. Westmeath, to the peak of Knockastia at 659 feet. Apparently, from the ancient Bronze Age burial mound on the top of Knockastia, one can see no less than 22 counties. From the 1912 Ordnance Survey Map, I note that even then there was a quarry on a plot of .250 of an acre to the east of the "back road". This used to be a quiet country road running past the quarry and wending its way to the village of Rosemount which seemingly had aspirations to winning prizes as a Tidy Village. An impression of the Arcadian setting of the quarry on the west side of Knockastia can be obtained from the map in Exhibit B of the Affidavit of Sean O'Faircheallaigh and in the photograph taken by Brigid Loddick in 1992 from beside a gate and looking North-East towards the quarry and Knockastia. The County Council concedes that there was a small old quarry beside the road at Coolatoor in the area of the quarter acre plot shown on the 1912 survey and agree that from about 1940, the Local Authority used the quarry for the extraction of stone on a small scale with occasional blasting. This use was discontinued in 1965. On 30th August, 1967, Roadstone applied for and subsequently obtained permission to erect a ground limestone plant, and until July 1971 Roadstone produced ground limestone at the quarry. In July 1971, Roadstone pulled out their plant and machinery and ceased production. The Local Authority contend that the quarry was not used as a quarry again until 1985 and, indeed, that there was no blasting from 1971 until 1988. Their contention is that the use as a quarry was abandoned and the site was used for the purpose of feeding cattle in the shed erected by Roadstone and then the premises were used as a store for the sale of animal feed. From June to September 1988, Roadstone were back on the scene but they only blasted once and had little equipment. There were no complaints from residents until 1990. About this time the Respondents had arrived at the site. The contention of the Local Authority, supported by a multitude of local residents, is that, after the arrival of the Respondents, there was a huge change in the nature and scale of operations. There began a large scale production of stone for road-making as opposed to the lime works run by Roadstone and the nature, the scale and the area of operations became much greater. Complaints were made in respect of a huge increase in traffic movements, noise, dust with deleterious effects on the residential amenities, safe passage on the road and the worrying effects of blasting. In short, the Local Authority contends that there had been abandonment of the existing user of extraction of rock established prior to the 1 st October, 1964 in that such user had come to be abandoned between 1965 and 1990 for a variety of reasons and that, in any event, the intensification which had taken place since the advent of the Respondents in or about 1990 was such that the intensification of use amounted to a material change of use and thus required planning permission.

3 The Respondents maintain that there had been no abandonment of the existing intermittent user of the quarry for the extraction of rock and there was no such intensification of use as would amount to a material change of use. The Respondents concede that an application for permission in relation to the working of the quarry (as distinct from the limestone works carried on by Roadstone) has not been made at any time since the coming into operation of the 1963 Act. They contend that such an application is not necessary to legitimise their current user of the quarry. They point to the provisions of the 1963 Act, and say that the "development" (within the meaning of the Act) is one which had already commenced and taken place in relation to the quarry prior to "the appointed day" being 1 st October, 1964.

4 It is clear that the quarry was used for the extraction of rock on a commercial basis before the appointed day. The issues which arise for determination are whether that user can be regarded as having continued without abandonment in the period which has elapsed since 1963, and whether the user which the Respondents have been making of the lands and propose to continue making, unless restrained by Order of the Court from doing so, should be regarded as no more than a continuation of the traditional use of the quarry, albeit on a much larger scale than in previous years. Thus the issues of abandonment and intensification have to be considered.

5 The central lowlands of Ireland covers one third of the island's surface and are underlain predominantly by limestone. This rock was formed about 350 million years ago when Ireland lay close to the equator and the area was submerged in a subtropical coral sea. Sea creatures with shells of calcium carbonate or calcite lived in the warm waters and the accumulation of calcite and other sedimented materials was consolidated by pressure over millions of years into a thick layer of limestone. Much later, the layers of limestone were lifted and tilted by movements of the earth so that, instead of having the youngest rocks on top, some rocks of different ages came to be at the surface. The character of the limestone can differ. According to the evidence of an hydrogeologist, the limestone rock at Coolatoor is in the range of low permeability. An impression of how Knockastia dominates the flat midlands landscape can be gained from the photographs taken by Mrs. Brigid Loddick. She was brought up on her family farm on the east side of Knockastia. On the Westmeath County Development Plan, 1994 in table 12B, "views to be preserved or improved" at reference V.14, the "panoramic views of Knockastia Hill, Coolatoor" are stated to be subject to planning control. It is clear from the four indications on the map of views to be preserved or improved in the plan adopted on 28th February, 1994 that the panoramic views from the top of Knockastia have been recognised by the Planning Authority as being of importance. The County Engineer described the locality as being a lovely, quiet, rural part of Co. Westmeath. A man of wide experience who in his time has worked for no less than eight county councils in Ireland, Mr. Hearne, described the village of Rosemount as a tidy village and the area as a very pleasant part of Co. Westmeath.

SUMMARY OF THE EVIDENCE GIVEN

6 Evidence of most of the witnesses was adduced, not only on Affidavit but also by sworn oral testimony with cross-examination.

7 Malachi Cullen, Consultant Engineer, testified by Affidavit sworn on 4th August, 1994 and was also called and recalled to give verbal testimony. He was engaged as a Consulting Engineer and retained on behalf of the Applicant to carry out an inspection of Coolatoor quarry. He was furnished with sight of a planning permission granted under Planning Register No. 1623 dated 1lth October, 1967 together with the documentation which had been submitted in respect of the application for planning permission by Roadstone Ltd. for the operation of a ground limestone plant on the site of Coolatoor quarry. He then attended at Coolatoor on 25th August, 1993 with Sean O'Faircheallaigh, the Planning Officer of Westmeath County Council. His firm, Malachi Cullen & Partners, Consulting Civil Structural & Environmental Engineers, of Athlone, subsequently carried out a number of surveys at the quarry. The survey map of Coolatoor quarry at Exhibit B in his Affidavit helpfully shows the location and orientation of the quarry. He has also usefully depicted the outline of the Roadstone planning permission 1623 in red and shows the location of the shed in the quarry and where access roads were in 1994. He also shows the extent of stripped ground in February 1994 and the access and egress points onto county road 396 running between Rosemount and Ballymore. He has also indicated where stockpiles were at that time and where storage of materials was being done on the west side of the road and the location of two tanks to the west of the road. I accept the contents of his Affidavit as accurate. I accept his evidence which was subjected to cross-examination. He is an experienced Consulting Engineer and I accept his surveys of the quarry face as accurately depicting the enlargement of the quarry in 1993 and 1994. His map shows the extension of the quarry by blasting; also, where there was storage of large stockpiles in the areas shown coloured yellow. He says that the storage of large quantities of material in this manner creates a significant visual impact and constitutes a development within the...