Judgment Title: Frank Harrington Ltd -v- An Bord Pleanála
Composition of Court:
Judgment by: Hedigan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 428
THE HIGH COURT
2008 1020 JR
FRANK HARRINGTON LIMITED
AN BORD PLEANÁLA
MAYO COUNTY COUNCIL AND JAMES LEONARD
Judgment of Mr. Justice Hedigan delivered the 23rd day of November 2010.
The respondent concluded that quarrying in fact commenced post 1964 and therefore the quarry does not benefit from an exemption from planning. This conclusion is based on a number of factors including the fact that when the applicant made an initial application to register the quarry pursuant to s. 261 of the Planning and Development Act 2000, it stated that quarrying commenced on the site on or about May 1984. The conclusion is also supported by the fact that the respondent received responses to a s. 137 request from An Taisce and the first and second named notice parties which indicated that the quarry did not have pre 1964 status.
This case arises out of works carried out within the existing sand and gravel pit . The applicant constructed replacement crushing, screening and washing plant and two numbered ESB substations. An application was made on 19th January, 2007, to Mayo County Council for the retention of these works. On 9th March, 2007, retention permission was granted (subject to conditions). This decision was appealed to An Bord Pleanála by Mr. Peter Sweetman on behalf of the second named notice party. An Bord Pleanála’s Inspector recommended that planning permission be granted to the applicant on 14th August, 2007. The Board however decided not to accept this recommendation and refused retention for the plant on 11th July, 2008. These proceedings arise from this decision.
B. There was no evidence before the Board to support its view that the quarry was an unauthorised development.
C. The Board failed to have regard to the Council’s registration of the quarry or the Council’s “determination” that the development had commenced before 1 October 1964.
D. Section 137 notices: The Board erred in law and acted in breach of fair procedures by (i) issuing these notices, (ii) not circulating the responses to the applicant for comment and (iii) not requiring its Inspector to make a recommendation in relation to same.
E. The Board erred in law by referring in its decision to Frank Harrington rather than Frank Harrington Ltd.
F. The Board failed to give adequate reasons for its decision.
5. Submissions of the Applicant
5. 1 Statutory Intention
The applicant submits that there is clear statutory intention that in most cases such processing equipment would not even be subject to the requirement to obtain planning permission. The equipment is of a type that would ordinarily be exempt under the Planning and Development Regulations 2001 or under S.4 (1) (h) of the Planning and Development Act 2000 (as amended). The applicant further points out that the equipment in question could fall under the ambit of class 21 of the Planning and Development Regulations 2001 which provides for certain plant and equipment under a particular height to be exempt.
5. 2 Ultra Vires
It is submitted by the applicant that permission has been refused not because the plant was unauthorised but because of the status of the existing quarry. The applicant argues that Bord Pleanála’s powers as set out under the 2000 Act do not include the power to determine that something is an unauthorised development. In these circumstances its determination is ultra vires and falls to be quashed by the appropriate order of certiorari. Section 34 (2) of the Planning and Development Act 2000 is particularly important in the context of the determination of the Board in this instance. It provides that when making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of an area having regard to:-
(ii) the provisions of any special amenity area order relating to the area
(iii) any European site
(iv) relevant Governmental or Ministerial policy
(v) matters referred to in subsection 4
(vi) any other relevant provision or requirement of this act and any regulations made thereunder.
5. 3 Section 261 Registration
The applicant points out that the registration of the sand and gravel pit has been recognised by the senior planning inspector’s report which stated:-
The applicant submits that the effect of the Board’s decision amounts to a collateral challenge to the registration process under s. 261 and the applicant’s registration. Such a collateral challenge should not be permitted. Furthermore the applicant points out that the planning authority imposed conditions on the continued operation of the quarry and such conditions may only be imposed on a validly authorised quarry. There is it is submitted, a complete disconnect in law and in fact between the determination of Mayo County Council under s. 261 (6) and the determination of the respondent in these proceedings.
A director of the applicant company Mr. Frank Harrington in his sworn affidavit has averred that he personally worked these lands with his father in 1963. The applicant says that to suggest that the quarry was operating unlawfully over many years would require the clearest of evidence and such evidence is not present in this case.
5. 4 Rational
The applicant maintains it cannot understand the basis or the reasoning as to how the respondent made its decision. The respondent did not have regard to the determination of its inspector, but instead chose to look for new information. This new information was not given to the inspector and the respondent gave no explanation for this. There are no reasons anywhere on the face of the documentation setting out the reasons why the respondent refused permission in this case. The respondent officer refers to a ‘presenting member’ who presented, it must be assumed, a report to the respondent that grounded the making of their decision. No such report appears on the file. This, it is submitted, is an inexplicable omission on the part of the respondent.
5. 5 Fairness
The fact that the submissions requested from all parties were not circulated raises the issue of fairness. The principle of audi alteram partem applies; there was no prejudice to any party in allowing such circulation. In all of the circumstances it is submitted that the appropriate order is an order quashing the decision with the various declaratory relief that is sought.
6. Submissions of the Respondent
The respondent considered that the quarry had commenced operation after 1st, October, 1964 and was therefore unauthorised. The respondent concluded that it would be inappropriate to grant the retention permission sought as to do so would facilitate the continuation of an unauthorised development at the site. Whilst the applicant contends the respondent erred by taking the planning status of the quarry into account, the respondent maintains that the planning code clearly recognises that the unlawful status of development, even when immune from enforcement has consequences. Section 34 (2) (a) (vi) of the Planning and Development Act 2000, requires Bord Pleanála, when deciding on an application for planning, to have regard to any other relevant provisions of the act and any regulations made thereunder. Article 9 (1) (viii) of the Planning and Development Regulations 2001 provides that an otherwise exempt development loses its exemption if it consists of or comprises the extension, alteration, repair or renewal of an unauthorised structure or a structure the use of which is an unauthorised use. The respondent submits that this evinces a clear legislative policy against the facilitation of unauthorised development.
It is well established that the Board is entitled to have regard to the current planning status of a site. In Quinlan v. Bord Pleanála  IEHC 228, the applicant applied to renovate number 7 Ailesbury Road. The Board imposed a condition restricting its use to an embassy, that being the established use of the premises at and after 1964. The applicant claimed that the Board was not entitled to impose a condition limiting use in this manner, Dunne J. was satisfied that it was within the remit of the Board to consider the established use of the premises on the appointed day (i.e. October 1 1964). Hence the existing use is a relevant consideration and the respondent was entitled to determine the nature of that existing use.
In Westwood Club Ltd v. An Bord Pleanála  IEHC 16, the Board refused permission for the retention of alterations already carried out, and further alterations to, a bar and night club, “Bar Code”, within a sports and leisure centre. The Board refused permission on the basis that the alterations would facilitate an unauthorised development stating that:-
6. 2 No evidence that the quarry was unauthorised development
The applicant has based its application for judicial review on the irrationality test set down in O’Keeffe v. An Bord Pleanála  1 I.R. 3. This case concerned a judicial review of a decision of An Bord Pleanála which granted permission for the erection of a radio transmission station and a 300 ft mast in County Meath. The applicant sought to have the decision of the Board set aside, inter alia on grounds that it was irrational and one which no reasonable planning authority, properly exercising its discretion could have decided. In giving his judgment in that case Finlay C.J., applied the decision in The State (Keegan) v. The Stardust Victims Compensation Tribunal  I.R. 642 he stated:-
6. 3 Failure to have regard to registration of quarry and Council’s “determination” of pre-1964 status
In its application for registration of the quarry pursuant to s. 261 of the 2000 Act the applicant stated that quarrying commenced on the site on or about May 1984. The respondent maintains that, in these circumstances the applicant is estopped from now maintaining that the quarry pre dates 1964. The respondent also points out that it received s.137 responses from An Taisce, the Council and James Leonard, which supported the argument that the applicants quarry did not have pre 1964 status. The applicant appears to contend that the council’s registration of the quarry amounted to a recognition and determination that the quarry had a pre 1964 user. Section 261 of the Planning and Development Act 2000 requires planning authorities to register all quarries that either had no planning permission or had a planning permission that was greater than 5 years old, the planning authority had no discretion whether to register or not. Accordingly the respondent submits nothing of relevance can be gleaned from the council’s decision to register.
6. 4 Section 137 Notices and Responses
Based on the inspectors report, the respondent considered that the quarrying activity might be unauthorised. The respondent decided to issue s. 137 notices to the parties. Under s. 137 of the Planning and Development Act 2000, the respondent gives the parties an opportunity to make submissions in writing in relation to a matter which the respondent proposes to take into account. The respondent refutes the applicant’s claim that it had no jurisdiction to issue the notices. The applicant’s assertion in the registration appeal was clearly a new issue which the respondent considered was relevant to the appeal and the respondent maintains that it was therefore correct to allow the parties comment thereon. The applicant also contends the respondent ought to have sought a recommendation from its inspector in relation to the responses to the s. 137 notices. Section 146 allows the Board to appoint an inspector to gather information and make a recommendation; thereafter there is no statutory role for an inspector unless the Board again chooses to exercise its power under s. 146. The applicant also complains that the non-circulation of the responses breached fair procedures. The respondent points out that under s. 137 responses cannot ordinarily be elaborated on. If the Board was always required to circulate submissions there could ensue an endless ping-pong sequence of exchanges between the parties that would delay and frustrate the planning process. The respondent points out that the applicant does not exhibit the documents that it maintains were so important that they ought to have been circulated for comment, nor does the applicant identify what submissions it would have made in response to any of these submissions.
6. 5 Reference to Frank Harrington rather than Frank Harrington Ltd.
The applicant contends that the Board’s decision was ultra vires by reason of its reference to the applicant as Frank Harrington rather than Frank Harrington Limited. The respondent argues any error in this respect was de minimis and that there is no evidence of confusion as to the entities involved.
6. 6 Reasons
The applicant also contends that the Boards decision was not adequately reasoned. The respondent says this complaint is devoid of reality. The respondent clearly identified that it considered that the quarry was post 1964 and was therefore unauthorised. The respondent stated that it would be inappropriate to grant retention permission since to do so would facilitate the continuation of an unauthorised development. The respondent also clearly explains why it did not adopt the recommendation of its inspector. It can scarcely be contented that the applicant was prevented from knowing the basis on which the respondent reached its decision.
6. 7 Application of European Community Law
Finally the respondent submits that it was precluded from granting permission for the quarry by decision C-215/06 Commission v. Ireland. In that case the European Court of Justice held that the system of retention permission for unauthorized development in Ireland was inconsistent with the Environmental Impact Assessment Directive as it might encourage developers to avoid prior authorization requirements that lie at the heart of the Directive. In the within proceedings, the applicant was applying for retention permission of development itself alleged to be located within an unauthorized development of such a size that, if permission were sought in advance an environmental impact assessment would necessarily be required. In those circumstances, the decision of the European Court would inevitably preclude the Board from granting permission for the quarry.
7. Decision of the Court
7.2 If quarrying commenced at the quarry subsequent to 1st October, 1964, it follows that the quarry, not having the benefit of any planning permission, is unauthorised and is an unlawful development as defined in s. 2 of the Planning and Development Act 2000 which states that:-
(a) a structure which was in existence on 1 October 1964, or
(b) a structure, the construction, erection or making of which was the subject of a permission for development granted under Part IV of the Act of 1963 or deemed to be such under section 92 of that Act or under section 34 of this Act, being a permission which has not been revoked, or which exists as a result of the carrying out of exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act);
7.3 Section 34 (2) (a) (vi) of the Planning and Development Act 2000 requires the Board, when deciding on an application for planning permission, to have regard to any other relevant provisions of the Act and any regulations made thereunder it states:-
7.4 Article 9 (i) (viii) of the Planning and Development Regulations 2001 deals with loss of exemption where unauthorised structures are added to an exempt one, the exempt looses its exemption. These legislative provisions show that the intent of the legislature is against the facilitation of unauthorised development, as one would expect.
7.5 Taking account of the apparently evident fact of the quarry being unauthorised, it seems clear the Board may and indeed must take into account the legal status of any particular development when considering an application in relation thereto. In Westwood Club Ltd v. An Bord Pleanála  IEHC 16 the Board refused permission for retention works on the basis that they would facilitate unauthorised development. The applicant argued that the proposed works were merely ancillary to the main use. The Court rejected this argument and held that the Board was entitled to take into account the legal status of the development. The Board again took into account the legal status of a development Quinlan v An Bord Pleanála  IEHC 228. Dunne J. held that she was satisfied that it was within the remit of the Board to consider the established use of the premises as an Embasy on the appointed day i.e. 1 October, 1964. The Board was therefore entitled to impose a condition restricting use of the said premises. On these authorities, the applicant’s argument that the Board erred in law in considering whether the quarry within which the development was located was itself an unauthorised development does not stand up to scrutiny.
7.6 In this case An Bord Pleanála was not acting as a deciding body on whether or not the quarry was unauthorised so much as recognising an apparently evident reality i.e. the quarry was post 1964 and no planning permission existed for it. This is clear from the evidence before the Board including the applicant’s initial application for registration of his quarry pursuant to s. 261 of the 2000 Act, which stated that quarrying commenced on the site on or about May 1984. Furthermore, the Board received responses to a s. 137 request from An Taisce, and the notice parties Mayo County Council and Mr. James Leonard which supported the conclusion that the applicant’s quarry did not have pre 1964 status. It is clear from the cases of Westwood Club Ltd v. An Bord Pleanála  IEHC 16 and Quinlan v. An Bord Pleanála  IEHC 228, that the Board was obliged to take into account the legal status of the underlying development. To do otherwise would be to view the proposal out of context; moreover its decision as to what was or was not in context was a matter of planning expertise and therefore something with which, save for exceptional circumstances, the court should not be involved.
7.7 It seems clear that An Bord Pleanála can and indeed should take into account all relevant factors known to exist within the context of the application made, including the planning history of the site. It is not possible to accept that the planning status of the quarry was not a relevant factor to take into account. It clearly was. The fact it had been registered did not transmute this unauthorized base metal into the gold of authorization. I accept the submission of the respondents in this regard that its approach is in line with Article 9 (i) (viii) of the Planning and Development Regulations 2001 that unauthorized developments, even if immune, should not be extended and facilitated by the planning code. It was well within Bord Pleanála’s jurisdiction to decide that this application would facilitate unauthorised development and upon that basis to refuse to authorize it.
8. As to the applicant’s claim that there was no evidence that the quarry was unauthorized; and that the decision it made was therefore irrational, the test laid down for the applicant is that of O’Keeffe v. An Bord Pleanála 1 I.R. 39.
9. The applicant complains that An Bord Pleanála failed to take account of the quarry’s registration. The fact the quarry was registered does not amount to a recognition or determination that the quarry had a pre 1964 user. Section 261 of the Planning and Development Act 2000 requires planning authorities to register all quarries that either had no planning permission or had planning permission greater than five years. Section 261 (9) sets out the scope of this section and s. 261 (1) imposes the obligation on quarry owners to notify planning authorities and to register. There is no distinction between pre and post 1964 quarries and there is no discretion. Planning authorities must register such a quarry. The aim of the legislation is clearly to try to bring all quarries pre or post 1964 with no planning permission or quarries with planning permissions more than 5 years old into the control net where conditions reflecting modern approaches to quarrying may be imposed in the public interest. Nothing in the legislation provides that such registration changes unauthorized into authorized. Their separate status at best. is that they are registered but still unauthorized.
10. Section 137 of the Planning and Development Act 2000 provides as follows:-
(2) The Board shall give notice in writing to each of the parties and to each of the persons who have made submissions or observations in relation to the appeal or referral of the matters that it proposes to take into account under subsection (1) and shall indicate in that notice -
(a) in a case where the Board proposes to hold an oral hearing of the appeal or referral, or where an oral hearing of the appeal or referral has been concluded and the Board considers it expedient to re-open the hearing, that submissions in relation to the matters may be made to the person conducting the hearing, or
(b) in a case where the Board does not propose to hold an oral hearing of the appeal or referral, or where an oral hearing of the appeal or referral has been concluded and the Board does not consider it expedient to re-open the hearing, that submissions or observations in relation to the matters may be made to the Board in writing within a period specified in the notice (being a period of not less than 2 weeks or more than 4 weeks beginning on the date of service of the notice).
(3) Where the Board has given notice, in accordance with subsection (2) (a), the parties and any other person who is given notice shall be permitted, if present at the oral hearing, to make submissions to the Board in relation to the matters which were the subject of the notice or which, in the opinion of the person conducting the hearing, are of relevance to the appeal or referral.
(b) Subject to section 131 , where a party or a person referred to in subsection (1) makes submissions or observations to the Board in accordance with subsection (2)(b), that party or person shall not be entitled to elaborate in writing upon those submissions or observations or make further submissions or observations in writing in relation to the matters referred to in subsection (1) and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.
10.1 Did the Board err in law in issuing those s. 137 notices? I think not. The decision to issue arises where the Board considers something new has arisen which may be relevant. It is classically a planning matter and one which therefore could only be challenged on O’Keeffe grounds. Plainly there was relevant material before it to support such a decision i.e. the applicant’s entry on the registration form as outlined in the inspectors report. As frequently stated, these courts have neither the competence nor jurisdiction to make such judgements. Power to do so is conferred upon the planning authorities and this court must not usurp that power.
10.2 Should the Board have requested a recommendation from the inspector in response to the submissions received as a result of the s. 137 notices? No authority was opened to me to support any such obligation on the Board. It may well be that inspectors are all but always assigned to prepare a report for the Board but there is no obligation to do so. Section 146 of the Planning and Development Act 2000 permits the Board to appoint such an inspector to make a report to it on an application including a recommendation. Section 146 states:-
(2) A person assigned in accordance with subsection (1) shall make a written report on the matter to the Board, which shall include a recommendation, and the Board shall consider the report and recommendation before determining the matter.
(3) (a) The documents relating to any appeal or referral or to a decision of the Board under section 175 or Part XIV shall be made available at the offices of the Board for inspection by members of the public and may be made available at such other places as the Board may determine within 3 working days following the relevant decision.
(b) Copies of the documents and of extracts from such documents shall be made available at the offices of the Board, or such other places as the Board may determine, for a fee not exceeding the reasonable cost of making the copy.
(4) The documents to which subsection (3) applies shall be made available for a period of at least 5 years commencing on the third working day following the decision of the Board in relation to the matter.
10.3 The applicant complains that the Board should have circulated the responses provided to the s. 137 notice. It seems to me that to sustain this complaint the applicant should clearly demonstrate to the court what response he would have made and that these responses might well have changed the decision that was made. The applicant has not done so and therefore this objection is somewhat unreal and therefore unsustainable. In any event I would consider that the comments of Kearns J. in Evans v. An Board Pleanála (7 November, 2003 (HC)) are in point here.
11. The applicant’s complaint in relation to the Board’s reference to Frank Harrington rather that Frank Harrington Ltd is of no merit. There is no evidence of any confusion as to the entities involved. This error falls to be dealt with under the de minimis rule.
12. The applicant complains that the Board failed to give reasons for its decision. In reality the Board did identify that it considered that the quarry was post 1964 and was therefore unauthorised. The Board then stated that it would be inappropriate to grant retention permission since to do so would facilitate the continuation of an unauthorised development. The Board also explained why it did not adopt the recommendation of its inspector. In this case it seems to me that although terse, the reasons given are clear and precise and leave no doubt as to why the Board decided as it did.
13. The respondents submit the decision C-215/06 Commission v. Ireland would preclude the Board from granting permission for the quarry. In that case the European Court of Justice held that the system of retention permission for unauthorized development in Ireland was inconsistent with the EIA Directive as it might encourage developers to avoid prior authorization requirements that lie at the heart of the Directive.
In the light of the courts findings above it is not necessary for me to express any view on this aspect of the case argued by the respondents in their written submissions.