Wicklow County Council v O'Reilly and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 29 October 2015
• Neutral Citation: [2015] IEHC 667
• Court: High Court
• Date: 29 October 2015

Wicklow Co Council v O'Reilly & Ors

No Redaction Needed

Approved Judgment

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND IN THE MATTER OF ORDER 56 OF THE RULES OF THE CIRCUIT COURT

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

APPELLANT

AND

STAN O'REILLY, STAN O'REILLY RECYCLING HOLDINGS LIMITED AND STAN O'REILLY RECYCLING LIMITED

RESPONDENTS

[2015] IEHC 667

[Record No.187 CA/2014]

[Record No.42 CA/2015]

[Record No.44 CA/2015]

THE HIGH COURT

Local government – The Planning and Development Act 2000 – O. 56 of the Rules of the Circuit Court – Revocation of license – The Waste Management Act

Facts: Following the order of the Circuit Court restraining the first named respondent from carrying on the operation of a waste recovery business under s. 160 (1) of the Planning and Development Act 2000 as there was material change of use at the site, the appellant had now filed an appeal against the part of said order whereby the Circuit Court had refused to direct the first named respondent to remove all the waste and equipment from the site on the basis that it had no jurisdiction to do so owing to the revocation of the waste permit of the first named respondent by the applicant during the currency of those proceedings.

Ms. Justice Iseult O'Malley granted an order to the effect that the first named respondent would remove the waste and equipment from the relevant business site. The Court, however, invited the parties to present a workable timetable to the Court for the implementation of the said order. The Court held that the business of the first named respondent came within the ambit of development for which planning permission was required. The Court found that the refusal of the first named respondent to clear the waste from the site was contrary to the means and sources available to him and he would be required to cooperate in the remediation process.

1 JUDGMENT of Ms. Justice Iseult O'Malley delivered the 29th day of October 2015.

Introduction

2 1. The first named respondent (hereafter referred to as "the respondent", as the companies named in the title have no relevant role in the proceedings), was in 2006 granted a waste facility permit in respect of a site near Rathnew in Co. Wicklow. This permit was replaced in 2009 by a waste facility permit issued under the relevant regulations.

3 2. On the 28th July, 2014, the appellant ("the Council") was granted an order in the Circuit Court pursuant to the terms of s. 160(1) of the Planning and Development Act 2000, as amended, ("the Planning Act") restraining the respondent from carrying on the operation of a waste recovery business on the site.

4 3. In deciding the case as he did, the learned Circuit Court judge held that the Council's application was made within the relevant statutory period and that there had been an unauthorised, material change of use at the site. However, he refused to make an order under s. 160 (2) of the Planning Act directing the respondent to remove all waste, and all equipment associated with the business, from the site. This was on the basis that the Council had revoked the respondent's waste permit during the currency of the court proceedings, and had thereby, in the view of the court, deprived it of the power to direct an orderly winding down of the business. The Council now appeals against that aspect of the decision. By leave of the court, the respondent has been permitted to appeal against the order made under s. 160(1). Both parties have appealed the subsequent decision of the Circuit Court to award to the Council 50% of its costs against the respondents.

5 4. The issues in the case are:-

6 · Whether, having regard to the history of the site, there was an unauthorised, material change of use.

7 · Whether the use of the site is an industrial process and therefore exempt.

8 · Whether the enforcement proceedings were instituted within the relevant time limit, having regard to the evidence of the respondent's operations at the site. As an alternative argument the respondent argues that the appellant Council is disentitled to relief by reason of delay.

9 · Whether the revocation by the Council of the respondent's waste permit during the currency of the Circuit Court proceedings was an impermissible and unconstitutional interference with that court's process.

10 · Whether, if the foregoing issues are determined in favour of the Council, an order ought to be made under s.160(2) of the Planning Act.

11 5. To a large extent, the issues involve consideration of the interaction between the planning code and the waste management code.

Summary of the background facts

12 6. On the 17 ^th July, 2006, the Council granted a permit, under the Waste Management Acts, 1996 to 2005, ("the Waste Management Act") to the respondent to operate a waste management facility on the land.

13 7. Later on that month a complaint was made to the Council alleging unauthorised development on the site. An investigation began and there was some correspondence between the parties during 2006 and 2007. No further steps were taken at that time.

14 8. In 2009, the respondent applied for a declaration, under the procedure provided by s.5 of the Planning Act, that what was termed the "recycling activity" was an exempted development within the meaning of the Act. The Council, in its capacity as planning authority, determined that the activity constituted a material change of use from the previous established activity on the site and was therefore not an exempted development. This decision was not appealed or challenged by the respondent.

15 9. After a review in 2009, a further waste facility permit was granted to the respondent for the same site. However, no planning application (whether for retention or otherwise) has ever been made by the respondent for the business carried on by him from the site.

16 10. The planning investigation was resumed by the Council in 2011. A warning letter was sent to the respondent in March, 2011 in relation to what was regarded by the Council as unauthorised development of the site under the terms of s. 152 of the Planning Act.

17 11. On the 16 ^th June, 2011, an enforcement notice was served. No further steps were taken by the Council on foot of that notice.

18 12. In June, 2013 the County Council issued proceedings in the Circuit Court pursuant to s. 160 of the Planning Act, seeking injunctive relief against the respondents.

19 13. On the 7 ^th March, 2014, the Council revoked the waste facility permit for the site and required all activity related to the business to cease. The respondent was granted leave to seek judicial review in relation to this decision on the 17 ^th April, 2014.

20 14. The s. 160 proceedings were fully contested and came on for hearing on the 19 ^th and 20 ^th June, and the 21 ^st July, 2014. The decision of the Circuit Court was given on the 28 ^th July, 2014.

21 15. The judicial review proceedings, considered further below, were heard on the 29 ^th October, 2014, and were ultimately determined in favour of the Council in a judgment delivered on the 14 ^th November, 2014.

The "change of use" issue

Relevant statutory definitions

22 16. Section 3(1) of the Planning and Development Act, 2000 provides as follows:

23 "In this Act, "development" means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land."

24 17. Section 3(2) provides inter alia that where land becomes used for the purpose of the "deposit" of old metal, builders' waste, rubbish or debris the use of the land shall be taken as having materially changed.

25 18. By virtue of s. 2 of the Act, "use", in relation to land, does not include the use of the land by the carrying out of any works thereon. The word "works" includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.

26 19. By virtue of regulations made under s.4 of the Act (the Planning and Development Regulations 2001) an "industrial process" means any process which is carried on in the course of trade or business, other than agriculture, and which is

27 (a) for or incidental to the making of any article or part of an article, or

28 (b) for or incidental to the altering, repairing, ornamenting, finishing, cleaning, adapting for sale, breaking up or demolition of any article, including the getting, dressing or treatment of minerals.

29 20. For the purposes of this provision

30 "article" includes-

31 (i) a vehicle, aircraft, ship or vessel, or

32 (ii) a sound recording, film, broadcast, cable programme, publication and computer program or other original database;

33 21. An "industrial undertaker" means a person by whom an industrial process is carried on and "industrial undertaking" is to be construed accordingly.

34 22. Under the regulations, a development on land occupied by an industrial undertaker for the purpose of an industrial process is exempt where it consists of the installation or erection by way of addition or replacement of plant and machinery, or structures of the nature of plant or machinery. The same exemption applies to works for the provision within the curtilage of an industrial building of a hard surface to be used in relation to the industrial process carried on within the building. In both cases, the development is not to materially alter the external appearance of the premises. The height of any plant or machinery, or any structure of that nature, must not exceed 15 metres above ground level or the height of the items being replaced, whichever is the greater.

35 23. The regulations also provide an exemption for the...