High Court of Ireland Decisions

 


HC 159/04

THE HIGH COURT

RECORD NO. 2002/579 SP

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1963.

AND IN THE MATTER OF A REFERENCE TO AN BORD PLEANÁLA

BETWEEN/

GLANCRÉ TEORANTA

PLAINTIFF

AND SÉAMUS CAFFERKEY, LAURENCE HOWARD, DIETMAR KRUGER, DIANE NAUGHTON, MYLES MANGAN, JOHN LINDSAY, MARY TOGHER AND MARY FINLAY GEOGHEGAN

DEFENDANTS

AND MAYO COUNTY COUNCIL

NOTICE PARTY

Judgment of Miss Justice Laffoy delivered on 26^th April, 2004.

The Proceedings

As it governs these proceedings, s. 5(1) of the Local Government (Planning and Development) Act, 1963 (the Act of 1963), as amended by the Local Government (Planning and Development) Act, 1976 (the Act of 1976), provided as follows:

"If any question arises as to what, in any particular case, is or is not development or exempted development, the question shall be referred to and decided by An Bord Pleanála."

On 27^th September, 2001 a reference under s. 5 was submitted by the defendants to An Bord Pleanála ("the Board") in which the question for decision was framed as follows:

"A question has arisen between [the defendants] and [the notice party] as to whether the proposed change of use by [the plaintiff] of the site, premises and plant at Muinghmore, Geesala, County Mayo, from the drying of peat and manufacture of fuel pellets and briquettes therefrom to the drying of sewage sludge cake and manufacture therefrom of fertiliser is or is not development within the meaning of the Local Government (Planning and Development) Acts, 1963 to 2000."

It was stated that the defendants contended that the proposed change of use of the site, premises and plant "is a material change of use and accordingly, a development within the meaning of the Planning Acts, necessitating planning permission". It was further stated that the notice party was of the view that planning permission is not required, apparently taking the view that the proposed change of use does not constitute a material change of use and, further, that "it is development which is exempted development under the Planning Acts".

The Board issued a direction on 22^nd August, 2002 setting out its decision on the reference as follows:

"The change of use constitutes a material change of use, which is development and is not exempted development."

Section 5(2) of the Act of 1963, as it governs these proceedings, provided as follows:

"Where a decision is given under this section an appeal to the High Court from the decision may be taken at any time within the period of three months after the giving of the decision or such longer period as the High Court may in any particular case allow."

These proceedings, which were initiated by special summons which issued on 22^nd November, 2002, are by way of appeal against the decision of the Board. The plaintiff is the owner and the occupier of the land with the premises and plant thereon which is the subject of the reference (the facility). The Board is not a party to these proceedings. The notice party, which is the local authority and the planning authority for the area in which the facility is situate, has not participated in the proceedings save to apprise the Court that it will be bound by the order of the Court. In the circumstances, it has been left to the defendants, who are either local residents or the owners of property within the vicinity of the facility, to act as legitimus contradictor.

Motion for Directions

The defendants brought a motion for directions in the proceedings in which they raised the following issues as to the conduct of the appeal:

(1) Whether evidence additional to that which was before the Board might be adduced by the parties;

(2) If such additional evidence might be adduced, directions in relation to the same; and

(3) The standard of the review to be adopted on the appeal.

The motion was heard by Finnegan P., who delivered judgment on 22^nd March, 2004. Having commented that to some extent the first and third issues were interrelated as the nature of the jurisdiction which the Court is exercising is relevant to the admission of additional evidence, Finnegan P. stated as follows:

". . . on the hearing of the appeal the Trial Judge should consider the evidence which was before An Bord Pleanála and applying the test enunciated by Barron J. in Galway County Council v. Lackagh Rock have regard to matters which a planning authority would take into account in determining the proper planning and development and the preservation of amenities the objectives set out in the preamble of the Act of 1963."

On the question of the admission of additional evidence, having referred to the decision of this Court (Lynch J.) in Balkan Tours Ltd. v. Minister for Communications [1988] I.L.R.M. 101, Finnegan P. stated as follows:

"I am satisfied that this decision is an illustration that on an appeal additional evidence should in general be admitted only where it is necessary or desirable in the interests of justice rather than authority for the proposition that on an appeal of this nature such evidence should be admissible without the party wishing to adduce the same satisfying the Court of the necessity or desirability of it being admitted."

Waste Management Permit Application

On 24^th April, 2001 the plaintiff submitted an application for a waste permit under the Waste Management (Permit) Regulations, 1998 (S.I. No. 165 of 1998) (the 1998 Regulations) to the notice party. By virtue of Article 5 of the 1998 Regulations, the notice party, as local authority, is empowered to grant a waste permit in accordance with the 1998 Regulations if it is satisfied that –

"(a) the activity concerned, carried on in accordance with such conditions as are attached to the permit, will not cause environmental pollution,

(b) any emissions from the activity concerned will not result in the contravention of any relevant standard, including any standard for an environmental medium, or any relevant emission limit value, prescribed under any enactment and,

(c) the best available technology not entailing excessive costs will be used to prevent or eliminate or, where that is not practicable, to limit, abate or reduce an emission from the activity concerned."

The significance of the waste permit application for present purposes is that the defendants made the reference to the Board on the basis of the proposal for the use of the facility contained in the waste permit application which, at the time of the making of the reference, was pending before the notice party. The defendants submitted to the Board, as part of the reference, a copy of the substance of the application, but without plans and drawings. A complete copy of the application was subsequently submitted by the plaintiff to the Board.

In accordance with Articles 6 and 7 of the 1998 Regulations, notice of the waste permit application was published in the Western People on 2^nd May, 2001. In the notice the nature of the permit sought was described as "a waste permit for non-hazardous sludge drying facility". The classes of activity concerned were described by reference to the third and fourth schedules of the Waste Management Act, 1996 (the Act of 1996). The principal activity to be carried out on the site was described by reference to Class 7 of the Third Schedule, which deals with waste disposal activities, as follows:

"Physico-chemical treatment not referred to elsewhere in this Schedule which results in final compounds or mixtures which are disposed of by means of any activity referred to in paragraphs 1 to 10 of this Schedule (including evaporation, drying and calcination)."

As regards other waste disposal activities involved, the notice disclosed that the application also related to the activities specified in Class 11 (blending or mixture prior to submission to any activity referred to in a preceding paragraph of the Third Schedule) and Class 13 (storage prior to any activity referred to in the Third Schedule, other than temporary storage pending collection, on the premises where the waste concerned is produced). The notice also disclosed that the activity fell within two classes specified in the Fourth Schedule, which relates to waste recovery activities: Class 2 (recycling or reclamation of organic substances which are not used as solvents, including composting and biological transformation processes) and Class 13 (storage of waste intended for submission to any activity referred to in a preceding paragraph of the Fourth Schedule, other than temporary storage, pending collection, on the premises where such waste is produced).

It is common case that neither an integrated pollution control licence under the Environmental Protection Agency Act, 1992 nor a waste licence under the Act of 1996 is required for the proposal set out in the waste permit application. Although a waste permit is necessary, the provisions of s. 54 of the Act of 1996, as amended by

s. 257 of the Planning and Development Act, 2000 (the Act of 2000), do not apply to the proposal, so that neither the notice party, as planning authority, nor the Board on an appeal, is precluded, even to the extent now provided in s. 54, from having regard to environmental matters if planning permission is necessary for the proposal.

Application to admit additional evidence

Section 5 of the Act of 2000, which replaced s. 5 of the Act of 1963, which has been repealed, provides that, if any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of the Act of 2000, any person may request in writing from the relevant planning authority a declaration on that question. At the hearing of these proceedings, the plaintiff sought leave to adduce additional evidence of a request for a declaration pursuant to s. 5 of the Act of 2000 made by the plaintiff to the notice party in December, 2002 and the response of the notice party thereto. It was urged that adducing such evidence was necessary in the interests of justice. The defendants objected to the evidence being admitted and contended that the application should fail in limine.

As will appear from the planning history of the facility outlined later, prior to submitting the waste permit application, the plaintiff had sought and obtained the opinion of the notice party as to whether planning permission was necessary for the recommissioning of the facility and its operation as "a drying plant to thermally dry non-hazardous sewage sludge cake". The opinion of the notice party was that planning permission was not required. Before embarking on the reference to the Board the defendants, by letter dated 16^th July, 2001 from the second named defendant, invited the notice party to change its view as to whether the proposal of the plaintiff constituted a material change of use. The reports of experts and correspondence which were subsequently submitted to the Board were furnished to the notice party. By letter dated 13^th August, 2001 the notice party responded stating that the use proposed does not constitute a material change of use requiring planning permission, and that an Environmental Impact Statement is not required for a development which is an exempted development, thereby implying that the proposed change of use was an exempted development. It was this response which provoked the reference.

The defendants' reference to the Board involved a discrete issue: whether the implementation of the proposal embodied in the application for the waste permit constitutes a material change of use. This is an appeal from the decision of the Board initiated by the plaintiff in November, 2002. In my view, evidence of a subsequent request for a declaration under a new statutory provision by the plaintiff to the notice party, as planning authority, is neither necessary nor desirable in the context of the determination of this appeal.

The plaintiff also sought leave to adduce in evidence the waste permit which was granted by the notice party, as local authority, on foot of the plaintiff's application on 3^rd December, 2001, that is to say, before the decision of the Board. The notice party, as planning authority, made a submission to the Board in relation to the defendants' reference on 30^th May, 2002. The waste permit was mentioned in that submission only in the context that the notice party, presumably as local authority in the exercise of its functions under the 1998 Regulations, had considered the contents of certain documents "in the processing of the Waste Permit with respect to this development". The plaintiff did not pursue the application for leave to adduce the waste permit in evidence. However, if it had, I would have refused the application on the same basis as I am refusing the application to adduce evidence of the s. 5 request to the notice party in December, 2002.

Apart from the separate and distinct dealings which the plaintiff has had with the notice party since the reference was made by the defendants and since it was decided by the Board, it is clear that the factual situation has also changed on the ground. The Court was informed that between April, 2002 and August, 2002 the facility was operating in accordance with the proposal which is the subject of the reference. From March, 2003 to the present time, the facility has been operating in a similar vein but using industrial sludge cake rather than municipal sludge cake. Given these facts, if the Court were to admit evidence which was not before the Board, where would it draw the line? Would it have to admit evidence of the manner in which the operations at the facility in the recent past have affected the defendants, as their counsel intimated they would wish to have adduced if additional evidence was being admitted? As a matter of principle I consider that no additional evidence should be admitted. Further, I consider that it would not be appropriate to draw any inference from the fact that the waste permit was not put before the Board by any party to the reference.

The Reference Process

In outline the reference took the following course:

(1) There was submitted to the Board with the reference, in addition to a copy of the substance of the waste permit application, inter alia, the following documents:

(a) a report dated 28^th May, 2001 of Margaret M. Daly, Environmental Health Consultant;

(b) a report of P.H. McCarthy & Partners, Consulting Engineers;

(c) a legal opinion dated July, 2001 of the defendants' counsel, Michael Collins S.C.;

(d) correspondence between the second named defendant and Foster Wheeler Energia Oy., which in 1995 had acquired the Ahlstrom works in Finland which had supplied the major item of plant at the facility, which had previously been used for drying peat and which it was proposed to use for drying sludge; and

(e) a legal opinion dated February, 2001 obtained by the notice party prior to the submission of the waste permit application.

(2) In response to a communication from the Board, on 30^th October, 2001 the notice party furnished to the Board details of the existing planning applications and permissions in relation to the facility. It would appear that the notice party also furnished to the Board a copy of a legal opinion dated January, 2001, which predated the waste permit application and which had been obtained by the plaintiff or, an associated company of the plaintiff, and had been furnished by the plaintiff to the notice party in connection with questions raised by the plaintiff with the notice party as to whether planning permission was required for the recommissioning of the facility and its use as a drying plant to thermally dry non-hazardous sewage sludge cake.

(3) On 21^st November, 2001 the plaintiff, through its solicitors, submitted its response to the defendants' reference accompanied by, in addition to a complete copy of the waste permit application, the following documents:

(a) comments by Marcia D'Alton of Integrated Biomass Solutions on the report of P.H. McCarthy & Partners;

(b) comments of Marcia D'Alton on the report of Margaret M. Daly;

(c) a report dated 20^th November, 2001 of Martin Key of Key Environmental Management on the issues arising on the reference.

(4) On 14^th January, 2002 the defendants, through their solicitors, furnished to the Board a response to the submission of the plaintiff, accompanied by the further comments of P.H. McCarthy & Partners and Michael Collins S.C.

(5) As I have already stated, on 30^th May, 2002 the notice party furnished to the Board its observations on the plaintiff's submission. The notice party maintained the stance it had already adopted stating:

"Mayo County Council considered that the new use was consistent with the previous use of the plant for the following reasons:

The building and plant which it was proposed to recommission was an established industrial complex where an industrial process had been carried out.

The use of the building was not limited by a condition of the Planning Permission.

No work involving any alteration to the external appearance of the building was proposed.

No alteration to plant or equipment was proposed.

No intensification of activity on the site was proposed."

It was also stated that the notice party concurred with the opinion expressed by the plaintiff's solicitors that "the new use is exempted development, not requiring Planning Permission".

(6) The Board's inspector, Kevin Moore, apparently inspected the facility on 27^th June, 2002. The inspector furnished a comprehensive report dated July, 2002 to the Board.

(7) The submissions and the inspector's report were considered by the Board on 19^th August, 2002 and the decision, which I have already quoted, was made. The record of the decision records that, in deciding the question, the Board concluded that:

(a) the change of use constitutes an industrial process which is materially different from that previously carried out at the site,

(b) planning considerations arise from the change of use which are materially different from those pertaining to the previous activity on the site,

(c) the change of use is material, in the context of the proper planning and development of the area, and

(d) the process is not such that could be carried out within a "light industrial building" as defined at Article 8 of the Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86/1994) (the 1994 Regulations) and, therefore, does not come within the scope of the exempted development provisions of Article 11(1) and Class IV of the Second Schedule of the said Regulations.

Legal Issues

Having considered all the documentation which was before the Board, it seems to me that the reference gave rise to the following legal issues:

(1) the meaning of "material change of use" in the planning code;

(2) the proper approach to the construction of the existing planning permissions having regard to the provisions of the Act of 1963, as amended; and

(3) identifying such, if any, regulations in relation to exempted developments as might be relevant to the reference.

I propose considering each of the legal issues in the abstract before considering the factual position.

Material Change of Use

"Development", as defined in s. 3 of the Act of 1963, included "the making of any material change in the use of any structures or other land".

In Galway County Council v. Lackagh Rock Ltd. [1985] I.R. 120, this Court (Barron J.) was concerned with whether there had been a material change of use in the context of an application by Galway County Council pursuant to s. 27 of the Act of 1976 for an injunction restraining an alleged unauthorised use of a quarry. The evidence was that the land in question was used as a quarry on the appointed day (1^st October, 1964), coincidentally by Galway County Council as lessee. In relation to its use in 1985, Barron J. summarised the factual position as follows at p. 127:

"In the present case, there is little doubt but that the site is being used quite differently from the manner on (sic) which it was used on the appointed day. There are a number of modern buildings on site instead of two huts. There is mass of modern machinery instead of some minor items. The stone is produced in varying sizes, including powdered stone, where previously it had been produced to a size which required crushing. This activity is for the purposes of a business enterprise where previously there was no commercial consideration. Finally, the quantity of stone being quarried is substantially in excess of that being quarried prior to the appointed day."

Barron J. pointed out in the penultimate paragraph of his judgment that all of the arguments had been directed towards one issue, that the then current operation of the quarry constituted a material change of use; there was no complaint per se to the presence of the buildings which had been erected by the respondent on the site. Barron J. distinguished two earlier decisions of this Court: the decision of Costello J. in Patterson v. Murphy [1978] I.L.R.M. 85 and the decision of Gannon J. in Dublin County Council v. Sellwood Quarries & Ors. [1981] I.L.R.M. 23. He said that there were both points of similarity and dissimilarity between them and the case under consideration by him and he continued as follows at p. 126:

"The similarity lies in the operation of the site at the date of the application to its utmost capacity with the most modern means available. The dissimilarity lies in the relationship between this use and the use of the particular site on the appointed day. In both cases already decided, it could not be said that the site had been used on the appointed day for the same primary purpose as at the date of the application. In the present case, the primary purpose of the use of the site on the appointed day was to quarry stone from it, which had been loosened initially by blasting."

The factual distinction was that in the earlier cases quarrying operations prior to the appointed day had not involved blasting. Barron J. went on to pose a rhetorical question: does the primary purpose govern the use of the site or must the manner in which the primary purpose is achieved be considered? He answered that question as follows at p. 126:

"Even though the primary purpose is still being achieved, it seems to me, that it may well be achieved by different means which could in the context of the planning code be material. Otherwise it is difficult to see how an intensification of use could ever amount, as it can do, to a material change of use . . . The importance of the principle [that intensification of use might amount, as a matter of fact, to a material change of use] lies not so much in the intensification of use itself, but in the fact that such use may impose burdens on the local authority or otherwise infringe in a materially different manner upon the proper planning for the area."

Barron J. dismissed the application. In doing so he stated as follows at p. 127:

"The question to be answered is whether or not the actual use is a materially different use from that on the appointed day. In neither case has an application been submitted for a permission. To test whether or not the uses are materially different, it seems to me, that what should be looked at are the matters which the planning authority would take into account in the event of a planning application being made either for the use on the appointed day or for the present use. If these matters are materially different, then the nature of the use must equally be materially different. Since no evidence has been adduced to indicate that the applicant would have taken any different matters into consideration in determining an application for planning permission made now rather than on the appointed day, I accept the respondent's contention that there has been no material change of use."

The decision of Barron J. was considered by this Court (Keane J., as he then was) in Monaghan County Council v. Brogan [1987] I.R. 333, in the context of an application for an injunction under s. 27 of the Act of 1976 restraining the respondents from using their farm as an abattoir. The respondents had been killing cows on their farm to feed greyhounds since the 1940s but from 1983 onwards there was a significant increase in the number of cattle being killed and the respondents began to kill to provide food for human consumption.

Having quoted the passage from the judgment of Barron J. which I have last quoted above and having emphasised the last sentence of the passage, Keane J. went on to say at p. 338:

"It is true that neither of the planning officers in the present case referred in their evidence to any different matters that would have been taken into consideration had an application for planning permission been made now rather than on the appointed day. It is, however, in my view for the court to determine whether or not there has been a material change in the use of land when an application is made under

s. 27. No doubt, as Lord Parker C.J. pointed out in East Barnet Urban District Council v. British Transport Commission [1962] 2 Q.B. 484, 'material' in this context means 'material for planning purposes'. Whether or not it is so material must be determined by the court as a matter of fact and the absence of any evidence as to the views of the planning authority on the matter is not crucial. It would be strange if it were otherwise, since a person other than the planning authority can set in motion the machinery under s. 27 and there is nothing in the wording of the section to suggest that his right to do so may be stultified simply because the planning authority have taken a view, which may or may not be in law correct, that no material change of use is involved. I do not think it is necessarily the case that Barron J. was indicating a different view of the law in the passage . . . , but if he were doing so, I would with respect differ from him."

Later, Keane J. summarised the position as follows:

"In summary, it may well be that at the time the matter comes before the court under s. 27 there may appear to be no reasons of a planning nature which would lead to an adverse decision in the event of the respondents applying for permission. But that does not absolve the respondents from the necessity of obtaining planning permission if there has been in truth a material change in the use of the land . . . If, however, the change of use is material, it is not in my view for the court to anticipate what matters, including possible objections, may be forthcoming in the event of there being an application for permission."

On the facts of the case, which involved the slaughtering of animals on a scale significantly greater than before, forming part of a commercial operation established for the first time on the particular farm, Keane J. held that "there was a material change in the use of the land in the context of the proper planning and development of the area".

Obviously, the context in which the issue as to whether there would be a material change of use if the plaintiff's proposal were implemented arises in the instant case, of a reference under s. 5, is different from the context in which it arose in the authorities which I have just analysed, on an application under s. 27. Each of the latter concerned comparing two factual situations which existed on the ground at different periods, neither of which was the subject of a grant of planning permission. In the instant case, the exercise involves comparing an existing factual situation which existed on the ground in accordance with planning permissions with a factual situation which would exist on the ground if the plaintiff's proposal were implemented. Nonetheless, it seems to me that the principles to be derived from the authorities are applicable. The exercise of comparing the two factual situations, one of which is hypothetical, is to determine whether there is a change of use and, if so, whether it is material having regard to the proper planning of the area in which the facility is located.

However, it is important to emphasise a matter highlighted by counsel for the defendants in their submissions: the limited function of a s. 5 reference. Counsel rightly emphasised that a s. 5 reference in relation to the proposed activities has nothing at all to say as to whether or not planning permission should ultimately be granted for the proposal; it is confined to the narrow issue of whether an application for planning permission must, as a matter of law, be made. Counsel for the defendants suggested that, having regard to the voluminous material submitted by the plaintiff to the Board, it was, in effect, seeking to argue the planning merits of the proposed development before the Board in an attempt to demonstrate that there is no reason why planning permission should not be granted. In my view, both the plaintiff's and the defendants' submissions to the Board to a greater or lesser extent addressed the planning merits of the proposal. However, in my view, in his evaluation of the submissions, the Board's inspector skilfully avoided straying beyond the narrow confines of the issue before the Board.

Construction of Planning Permissions

Section 28(6) of the Act of 1963, as amended by the Act of 1976, insofar as it is relevant for present purposes, provided as follows:

"Where permission is granted under this Part of this Act for the construction, erection or making of a structure, the grant of permission may specify the purposes for which the structure may or may not be used, . . . and if no purpose is so specified, the permission shall be construed as including permission to use the structure for the purpose for which it is designed."

The meaning of s. 28(6) was considered by the Supreme Court in Readymix (Éire) v. Dublin County Council and the Minister for Local Government, unreported, in which judgments were delivered on 30^th July, 1974, in the context of an attempt by a developer to restrain the Minister for Local Government, in whom the functions subsequently vested in the Board by s. 5 of the Act of 1963 were then vested, from dealing with a s. 5 reference. Budd J. and Griffin J. were of the view that, in construing a grant of planning permission, it is proper to refer not only to the terms of the grant of permission but also to the terms of the application and the documents and plans lodged with the application. Henchy J., who dissented on the application of the law to the facts, stated as follows in his judgment:

"Where the permission recorded in the register [i.e. the planning register provided under s. 8 of the Act of 1963] is self-contained, it will not be permissible to go outside it in construing it. But where the permission incorporates other documents, it is the combined effect of the permission and such documents that must be looked at in determining the proper scope of the permission. Thus, because in the present case the permission incorporated by reference the application for permission together with the plans lodged with it, it is agreed that the decision so notified must be construed by reference not only to its direct contents but also to the application and the plans lodged.

Since the permission notified to an applicant and entered in the register is a public document, it must be construed objectively as such, and not in the light of subjective considerations special to the applicant or those responsible for the grant of the permission."

In relation to the proper application of s. 28(6) and, in particular, the second limb of it, Henchy J. stated as follows:

"Section 28(6) of the Act stipulates that where a structure is permitted without specifying a purpose for which it may be used 'the permission shall be construed as including permission to use the structure for the purposes for which it designed'. Since a permission with this statutory extension may possibly not arise for interpretation until the property is passed to a purchaser or other lawful user who may have no knowledge of special circumstances known only to those privy to the grant of the permission, it must have been the intention of the legislature that the statutory extension must, with the rest of the permission, be construed objectively, as is the case with all public documents, particularly public documents of title."

On the facts before him, Henchy J. did not find it necessary to comment on the meaning of the word "designed" in s. 28(6).

The meaning of "designed" in s. 28(6) was considered by this Court, (Barron J.) in McMahon v. Dublin Corporation [1996] 3 I.R. 509. That was an appeal from a decision made by the Board on a reference under s. 5 of the Act of 1963. The question on the reference was whether the use of sixteen houses and maisonettes in a residential development known as Lansdowne Village in South Dublin on a commercial basis for short-term lettings constituted a material change of use, the relevant planning permission under which the estate was developed having been subject to a condition that no part of the proposed houses or apartments should be used for non-residential purposes such as offices, surgeries or consulting rooms, the reason ascribed for the condition being to prevent unauthorised development and to protect residential amenity. The proceedings differed from these proceedings in that they were plenary proceedings in which the appeal was coupled with a claim for declaratory relief in relation to the use of the houses. On the issue of the meaning of "designed", Barron J. stated as follows in his judgment at p. 515:

"The question to be decided in the absence of any use being specified in the planning permission is, for what purpose were the homes designed? What is important is the meaning to be attributed to the word 'designed'. The cases to which I have already referred construed this word in the sense of 'intended'. This seems to narrow the permitted use. You look to the documentation and determine objectively a particular use. Otherwise the permitted use would be any use to which the premises might be capable of being put."

In applying the foregoing principles in the instant case, the questions to be considered are the following:

(a) Whether the existing planning permissions for the facility incorporated by reference documents lodged with the planning authority?

(b) If so, whether the planning permissions objectively construed by reference to such documents specified the purposes for which the structures on the facility might be used?

(c) If no purpose was specified for what purposes were the structures intended?

Planning regulations in relation to exempted development

The Planning and Development Regulations, 2001 (S.I. No. 600 of 2001) (the 200l Regulations) came into operation on 21^st January, 2002, that is to say, before the decision of the Board. Counsel for the defendants submitted that, therefore, the Board should have decided the question referred to it by reference to the 2001 Regulations, rather than the 1994 Regulations. However, it is acknowledged that, as regards the issues to which the question gives rise, there is no material difference between the 2001 Regulations and the 1994 Regulations. Accordingly, I propose considering the matter by reference to the 1994 Regulations, as the Board did.

The provisions of the 1994 Regulations which are relevant for present purposes are as follows:

(1) Article 8, which contained definitions including –

(a) the definition of "industrial process" which was defined as meaning "any process which is carried on in the course of trade or business other than agriculture and which is for or incidental to the making of any article or part of an article . . . , or the altering, repairing, ornamenting, finishing, cleaning, washing, packing, canning, adapting for sale, breaking up or demolition of any article, including the getting, dressing or treatment of minerals", and

(b) the definition of "industrial undertaker" which is defined as meaning a person by whom an industrial process is carried on.

The expression "light industrial building" is also defined in Article 8. However, it is now acknowledged by the plaintiff that the facility is not a light industrial building.

(2) Article 9(1)(a), which provided as follows:

"Subject to . . . article 10, development of a class specified in column 1 of Part I of the Second Schedule shall be exempted development for the purposes of the Acts, provided that such development complies with the conditions and limitations specified in column 2 of the said Part I opposite the mention of that class in the said column 1."

The classes which were called in aid by the plaintiff in this case were classes 19 and 20, which, in the Regulations, were under the heading of "development for industrial purposes". Class 19 contained two categories of works. The works in category (a) were described as follows:

"Development of the following descriptions, carried out by an industrial undertaker on land occupied and used by such undertaker for the carrying on and for the purpose of any industrial process . . . –

(i) . . .

(ii) the provision, rearrangement, replacement or maintenance of sewers, mains, pipes, cables or other apparatus,

(iii) the installation or erection by way of addition or replacement of plant or machinery, or structures of the nature of plant or machinery."

Two conditions or limitations were imposed in relation to the foregoing works: that the development should not materially alter the external appearance of the premises of the undertaking; and that the height of any plant or machinery, or any structure in the nature of plant or machinery, should not exceed 15 metres or the height of the plant, machinery or structure replaced, whichever should be the greater. Class 20 was described as follows:

"Storage within the curtilage of an industrial building, in connection with the industrial process carried on in the building, of raw materials, products, packing materials or fuel, or the deposit of waste arising from the industrial process."

The following condition or limitation was imposed in relation to Class 20:

"The raw materials, products, packing materials, fuel or waste stored shall not be visible from any public road contiguous or adjacent to the curtilage of the industrial building."

(3) Article 10, which effectively imposed restrictions on what would otherwise be an exemption under Article 9. For instance, it was provided that a development to which Article 9 related should not be exempted development for the purpose of the Acts –

". . . if the carrying out of such development would . . . contravene a condition attached to a permission under the Acts or be inconsistent with any use specified in a permission under the Acts [Article 10 (1) (a) (i)] . . .

[or] consist of or comprise the extension, alteration, repair or renewal of an unauthorised structure or a structure the use of which is an unauthorised use [Article 10 (1) (a) (viii)] . . ."

(4) Article 11(1), which provided:

"Development which consists of a change of use within any one of the classes of use specified in Part IV of the Second Schedule and which does not involve the carrying out of any works, other than works which are exempted development, shall be exempted development for the purposes of the Acts, provided that the development, if carried out, would not contravene a condition attached to a permission under the Acts or be inconsistent with any use specified or included in such permission."

In the 1994 Regulations, the only class of use included in Part IV connected with an industrial process was Class 4 which was 'use as a light industrial building'.

As I have stated, it is acknowledged by the plaintiff that the facility is not a light industrial building. Therefore, in my view, Article 11 has no application to the facts of the instant case.

It was submitted on behalf of the plaintiff that the Court, in determining the issue of materiality, should have regard to the provisions of the Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65 of 1977), which were replaced by the 1994 Regulations. Part IV of the 1977 Regulations contained use classes which were not replicated in the 1994 Regulations, for example, "use as a general industrial building for any purpose" (Class 4) and other classes which counsel for the plaintiff asserted could generally be described as relating to smelting, burning, chemical processing and mixing. In my view, whether, in the past, the secondary legislator empowered to make regulations under the Act of 1963 considered it appropriate to exempt from the requirement of applying for planning permission a change of use within a particular use class is entirely irrelevant to the issue of the materiality of a change of use, which is to be determined on the basis of the principles set out earlier.

The planning history of the site

It is common case that the user of the facility for industrial purposes predates the appointed day, 1^st October, 1964. It was used as a grass meal factory prior and subsequent to that date. That enterprise ceased in the early 1980s. Subsequently, the following planning permissions were granted in relation to the facility, which comprised buildings and plant on approximately ten acres:

(1) On 15^th May, 1985 permission (P. 85/84) was granted to Peat Power Ltd., "for development of land in accordance with documents lodged", which was described as follows:

"Reconstruction and extension of factory and offices, installation of some new plant for drying peat and manufacture of fuel pellets and briquettes."

The permission was subject to five conditions. There was submitted with the application which led to that permission a specification which contained a general description of the proposed development, including the process. There was a brief description of the proposal in the specification in the following terms:

"It is proposed to provide a facility on site to manufacture fuel pellets and fuel briquettes consisting of peat and blended fuels for industrial, commercial and domestic markets in Ireland."

In relation to existing plant, it was stated that it was envisaged that the existing grass meal plant would be put into working order "to start a limited manufacture of pellets/briquettes". The major item of new plant provided for in the specification was described as a "peat incinerator and flash dryer", which was to be supplied by Ahlstrom Engineering Industries of Finland. The layout flowcharts and drawings submitted with this specification had been prepared by Ahlstrom. The main components of the Ahlstrom plant were described in the specification. The specification also dealt with the "pelletising/briquette plant". The pelletising process was described in a document entitled "From Powder to Pellet" which was included in the specification. The document explained the "pelleting" or "granulation" process – its advantages, possible applications, methods, stages and so forth. Some reliance has been placed by the plaintiff on a statement in this document that possible applications of the granulating process included blending with filling material or waste, preparation of waste for recycling, and preparation of waste for utilisation or disposal. In my view, that statement is of no more significance than the statement which immediately follows it to the effect that the granulation process can be used in a variety of industries from breweries to drying plants in general.

(2) On 23^rd December, 1996 the notice party granted permission (P. 96/1188) to Norsk Hydro Fuinnimh Teoranta (Norsk) "for development of land in accordance with documents lodged", which was described as follows:

"Recommission and extend existing fuel products plant . . . "

The permission was expressly granted on the basis that it would cease to have effect at the expiration of five years from 23^rd December, 1996. It was subject to eight conditions. It appears that Peat Products Ltd. had gone into receivership in 1990 and that Norsk had acquired the facility in 1995. The planning application was accompanied by a comprehensive report which described the existing site and structures, the proposed new structures and extensions to existing structures and the site commissioning works which were being sought, and an outline of the raw materials and the process and other operation details. Environmental issues were also addressed. In relation to the process description, it is clear that peat was still intended to be one of the principal raw materials. In fact the peat was to be used in one-third and two-third proportions to fuel the Ahlstrom dryer and to be dried in it. Following drying, the dried peat was to be mixed with other ingredient materials (petroleum coke, anthracite, ligno-sulphonate, urea and water), the various proportions of the ingredients to be subject to variation to achieve product with varying performance parameters depending on the market. The mix was then to go through a number of stages and finally the "product mix" would be fed into a press where the pellets would be formed. The finished product was to be a "hybrid fuel pellet-nugget". There was appended to the report what were described as "Material Safety Data Sheets", which dealt with various aspects of the ingredients. Some reliance was placed by the plaintiff on the contents of these documents. In my view, while they appear to indicate that the issue of safety was comprehensively addressed in the Norsk application, they are of no particular significance in the context of the question before the court. The conclusion of the planner who examined the application was that the process was largely the same as that sanctioned under permission P. 85/84 although new fuels and materials were to be used.

(3) On 24^th July, 1997 permission (P. 97/585) was granted to Norsk "for development of land in accordance with documents lodged", which was described as follows:

"Modify the materials storage and packaging plant, provide coals dryer plant on site, construct a landscaped perimeter mound on the sides and back of the site boundary and extend compressor room."

It was expressly provided that the permission granted should cease to have effect at the expiration of five years from the date thereof. The only noteworthy plant innovation involved in that permission was the provision for a rotary dryer for the purpose of drying coal. When the application was being assessed by the notice party it was noted that this had the potential to produce emissions with possible adverse environmental effects. Provision for monitoring emissions was included in the conditions.

All the foregoing planning permissions were granted by the notice party. On the appeal no issue was canvassed arising out of the expiration by effluxion of time of permissions P. 96/1188 and P. 97/585.

Norsk's enterprise at the facility ceased in 1999. The plaintiff, which is a company incorporated in the State and was originally incorporated under the name Universal Recycling Waste Services Ltd., acquired the facility in late 2000 or early 2001. The notice party, having considered a proposal from the plaintiff to recommission the facility "and to operate it as a drying plant to thermally dry non-hazardous sewage sludge cake", by letter dated 16^th February, 2001 advised the plaintiff that, based on legal advice, it was of the opinion that the new use of the plant does not constitute a material change of use requiring planning permission.

Activities permitted under existing permissions compared with activities proposed in Waste Permit Application

The most recent use of the facility for industrial purposes prior to its acquisition by the plaintiff was by Norsk for a drying and manufacturing process to produce fuel pellets and briquettes pursuant to permissions P. 96/1188 and P. 97/585. The evidence before the Court of the nature of that process is primarily contained in the report which accompanied the planning application which led to permission

P. 96/1188, although it is also necessary to have regard to the variations provided for in permission P. 97/585. The process as described in the Norsk report involved the delivery of harvested peat to the facility. The peat was brought by conveyors via a magnetic unit, which detected for ferrous contamination, and a crushing mill, which milled any sod peat delivered, to a storage silo for intermediate storage. From there it was deposited through various hoppers and screening filters into a feed silo where it was divided for use in the Ahlstrom plant – one third being used as fuel for the incinerator and two thirds for drying. The drying process was described. Having passed through a filtering system, the dried material was discharged to the pelletising building. There it was mixed with the other ingredients and went through a number of stages – it was heated, polymerised (which I understand from Miss D'Alton's comments on the report of P.H. McCarthy & Partners means bonded together, the bonding agents being ligno-sulphonate and urea) and agitated. The resulting "product mix" was fed into a press where the pellets were formed. Thereafter the pellets passed through a cooling unit. The finished product, a hybrid fuel pellet or nugget, was packaged in 25 kg. sacks and palleted for transport and distribution. As regards raw material, apart from storage in tanks, the process involved the storage of peat, petroleum coke and anthracite. Planning permission P. 97/585 provided for a variation of the drying component of the process, which involved the coal being dried in a rotary dryer. In the process, emissions to air occurred from the Ahlstrom dryer via a 35 metre stack and from the rotary dryer via a 30 metre stack. Mr. Key, in his report, made the point that in fact proper emissions control had not been employed when the facility was used for peat drying and briquetting because a venturi scrubber which was to be supplied to the system under planning permission P. 85/84 was never fitted. Norsk's report also addressed noise emissions in relation to various elements of the plant.

The plant, methods, processes and operating procedures for the activity comprehended by the waste permit application are described in detail in the application and the attachments annexed to it, and, in particular, attachment 12 to the application. The objective is to dry non-hazardous sludge to produce a granular fertiliser. Peat is the principal fuel used to generate the heat for the drying plant. The raw material, non-hazardous sludge which has been de-watered to a dry solid content of 15% (i.e. a spadable consistency), is transported to the facility. On arrival it is weighed and its dry solid content and quality checked. If there is any doubt as to the quality of any sludge load, the load is placed in a designated quarantine area in the sludge intake building. All sludge is back-mixed with dry granules immediately after reception, for three reasons: to increase the stability of the sludge for storage and handling purposes; to make the drying process more efficient (sufficient product being added to increase the dry solid content from 15% to 50%); and to reduce odours which might be generated if sludge has to be stored within the sludge intake building. Drying is carried out in one of the two dryers: the rotary dryer or the Ahlstrom dryer. The process by which sludge is dried in the Ahlstrom dryer, as described in attachment 12, is similar to the process of drying peat as described in the Norsk report. Dried product from the sludge is conveyed directly from the dryers to the product storage building where it is cooled. Backmix material is fed automatically into a feed hopper, which in turn discharges to an internal conveyor which takes the dried product to the sludge intake building. The dried product for sale and export is loaded into a 40 ft. bulk container.

A wide range of environmental issues are also addressed in the application and the attachments annexed to it. What was formerly the pelletising building now houses new emissions control equipment. A third stack located in this room discharges air extracted from the sludge intake and product storage building and from the conveyors, all which are covered and sealed. The 35 metre stack continues to serve the Ahlstrom dryer and the 30 metre stack continues to serve the rotary dryer. The nature of the emissions to air and water from the process and the measures adopted for controlling and monitoring such emissions are comprehensively dealt with in attachments 13 and 14 and measures, including emergency procedures, to prevent unauthorised and unexpected emissions are dealt with in attachment 17. Other matters addressed include the following:

(a) In relation to transportation of sludge, it is provided that a special fleet of "artic type trucks" with fully watertight tipping trailers equipped with top covers to contain odours generated during transport are utilised.

(b) Building design is also a consideration. For example in attachment 16, the sludge storage facilities are described. Sludge storage will be required only in the event of downstream process interruption. In this instance, sludge will be directed to a specially designed hard standing fully contained sludge holding area, part of which is subdivided into the sludge quarantine area. Should any small quantity of leachete be generated by stored sludge, it is drained to a sump in the base of the sludge holding area and directed to the waste water treatment plant.

The adequacy of the various measures incorporated in the plaintiff's application is not in issue in these proceedings. Their relevance is that the necessity to address them in the application is a consideration in determining the materiality in planning terms of the change from the activity carried on by Norsk to the activity the subject of the application.

In analysing the differences between the activity permitted under the existing planning permissions and the activity proposed under the waste permit application, the Board's inspector referred to the following matters:

(1) The proposed activity "results in the development on site constituting a treatment facility for waste (sewage sludge), albeit with a purpose of producing a fertiliser", whereas peat is not a type of waste requiring treatment in the context of the former activity. In my view, the inspector correctly identified a fundamental difference in the purpose to which the two activities are directed: the proposed activity is primarily directed to waste disposal, although it produces a by-product in the form of a granulated fertiliser; the former activity was directed to the manufacture of a fuel product, one of the components of which was dried peat. In the description of its proposal for the facility in attachment 7 to the waste permit application, the plaintiff's objective is absolutely clear. In outlining the need for the facility, it pointed to the urgent need for proper facilities to provide long-term treatment of sludge in Ireland, particularly as disposal of organic material to landfill becomes increasingly unacceptable. In that context the plaintiff pointed to thermal drying as being one of the preferred technologies for sludge treatment for a number of reasons cited, including the fact that the high temperatures to which the sludge is subjected in thermal drying guarantees pasteurisation. In outlining the major benefits of the proposal, the plaintiff stated that the facility would provide an immediate solution to the problem of sludge treatment for both local authorities and industry and would provide a long-term solution to treatment and beneficial use of non-hazardous sludge.

(2) The principal ingredients used in the two activities are different: sludge in the proposed activity; peat and coal in the former activity. In my view, the inspector was correct in highlighting the difference between the two raw materials as being material. In their comments of 14^th January, 2002, P.H. McCarthy & Partners stated as follows:

"It is our view that peat and sludge are different materials. Sludge requires treatment to convert it to biosolids material before it can be re-used as a fertiliser in order to stabilise it and prevent further breakdown and to kill the pathogenic organisms associated with faecal matter. Peat does not require stabilisation and is very unlikely to contain any faecal pathogens, particularly from human sources and will not become septic if it is not treated. The treatment of sludge by thermal drying is one of a number of treatment processes that achieve the conversion of sludge to a biosolid material as recommended . . . under the Code of Good Practice for the use of Biosolids in Agriculture. Therefore, while in the case of sludge thermal drying effects treatment of the sludge, it is unlikely that one would deem the drying of peat to be a treatment process and this is due to the fundamental differences between sludge and peat as indicated above. It is an important part of the sludge drying process that the sludge reaches a sufficiently high temperature to kill the pathogens, if this is not achieved the sludge will not be deemed treated. Accordingly, a contingency plan is required for out of specification dried sludge while this is not the case for peat. Because of these basic differences between sludge and peat the processes for handling untreated sludge and peat will be fundamentally different in that untreated sludge would be considered a contaminant".

The foregoing not only accords with common sense, but it accords with the stance adopted by the plaintiff in the waste permit application. The thermal drying of the sludge in the proposed activity is designed to pasteurise the sludge. In the former activity, the peat was dried to de-water it and render it suitable as an ingredient for pelletised or briquetted fuel. Moreover, the application manifests an awareness on the part of the plaintiff of the distinctions highlighted by P.H. McCarthy & Partners. For instance, provision is made for analysing the end product for faecal coliform and salmonella to prove that it has been fully pasteurised by the thermal drying process.

(3) Following on from the different nature of the raw materials used, and recognising that the drying process was common to both the proposed activity and the former activity, the inspector pointed to quarantining, odour treatment, treatment of waste water, specialised storage of sludge, essential backup in times of plant failure, the form of emission controls for emissions and such like as indicating that there are a range of processes that raise environmental issues in the case of the proposed activity that did not arise in relation to the former activity. He also stated that the transportation of sewage sludge to the site, its deposition within buildings, and its handling have different public health and safety and environmental implications from that of peat. In my view, the inspector was correct in so concluding. Indeed, the plaintiff's application for a waste permit implicitly recognises these factors. One example, the provision for essential back-up in times of plant failure, will illustrate this point. In attachment 17 to the waste permit application the plaintiff deals with process malfunction leading to sludge having to be stored on the site. As has been stated, the proposed process envisages all sludge being back-mixed on arrival to stabilise it. If there is a process malfunction and if the downtime is prolonged to such an extent that the quality of the stored back-mix may be compromised, it is provided that a mobile lime stabilisation plant will be hired from a company in Scotland and used to pasteurise the sludge to the standard specified in the Code of Good Practice for the use of Biosolids in Agriculture. In the plaintiff's submission to the Board this measure, in common with other measures provided for in the waste permit application, was characterised as a measure to maximise quality control, and as not being an essential element of the facility operations. This is to miss the point entirely. The point is that the proposed activity, which involves storage of back-mixed sludge, raises environmental, health and safety issues which the former activity, insofar as it involved the storage of peat and coal, did not.

(4) The inspector concluded that the proposed process and the previous process are not identical. This statement was criticised by counsel for the plaintiff. In my view, it would be wrong to interpret the inspector's remarks as giving rise to an implication that unless the two processes were identical there would be a material change of use. The inspector went on to remark that while the buildings and plant are the same in physical external appearance, they required substantial modifications to allow the proposed process to proceed. This conclusion is fully borne out by the application for the waste permit.

(5) The inspector also noted that the end product from the two processes is different: fertiliser in the case of the proposed process; and fuel in the case of the former activity. He was undoubtedly correct in that conclusion. However, I regard the differences in the end products as being of minimal significance in the context of the issue before the Court. Similarly I regard Mr. Key's opinion that there is no technical reason why sludge could not be pelleted and formed into fuel pellets as of minimal significance.

In general, in my view, the inspector identified the relevant factual differences between the proposed activity and the processes necessary to give effect to it, on the one hand, and the former activity and the processes involved in it, on the other hand. These are the essential facts on the basis of which the question put to the Board, and now before the Court, must be answered.

Application of the law to the facts

The first issue is to identify the use permitted and operated under the permissions granted in 1985, 1996 and 1997, each of which incorporated by reference the documents lodged with the notice party. In my view, as a matter of construction of the three planning permissions, the purposes for which the buildings and structures on the facility (whether as reconstructed and extended under permission P. 85/84, or recommissioned and extended under permission P. 96/1188, or modified, provided or constructed under permission P. 97/585) might be used were specified in the planning permissions. The purposes were the drying of peat and the manufacture of fuel pellets and briquettes, which after 1996 meant a hybrid fuel pellet or nugget composed of the dried peat and the other five ingredients. Counsel for the plaintiff emphasised the position of a comma after the word "offices" on the face of planning permission
P. 85/84. In my view, that is of no significance. It is quite clear from that planning permission, when read in conjunction with the planning application and the documents which accompanied the application and considered objectively, that the purposes for which all the buildings, structures and plant on the site might be used were specified – for the purpose of drying peat and the manufacture of fuel.

Even if I am incorrect in construing the planning permissions as specifying such purposes, the application of the second limb of s. 28(6) of the Act of 1963 has the same effect: the buildings, structures and plant as reconstructed, extended, modified and configured from 1985 onwards were clearly designed, in the sense of intended, for the purpose of drying peat and manufacturing fuel therefrom, but after 1996 in combination with the other ingredients specified. None of the relevant permissions either expressly, by implication or by operation of the second limb of s. 28(6) permitted the use of the buildings and structures for any industrial process which an occupier might wish to embark on.

The next issue is whether the use envisaged in the proposal contained in the waste permit application is materially different from the permitted use under the existing permissions, that is to say, whether the implementation of the proposal would involve a material change of use. On this point, the inspector, having outlined the various differences between the proposed activity and the former activity, went on to state as follows:

"Having regard to the above, the existing permitted use is not similar to that now proposed. The change of use is 'material' and can be further explained as follows. Consideration of implications for the proper planning and development of the area would be necessitated by the new proposal. There would be significant differences between the matters which a planning authority would consider now in comparison to the previous use. Transportation, handling, treatment of sewage sludge, building design, control of emissions, and implications for public health and safety would necessitate substantive and materially different considerations to that of the handling of peat."

In my view, in his report, the inspector applied the correct test and came up with the correct result. The former use of the facility by Norsk under the existing planning permissions and the proposed use by the plaintiff under the waste permit give rise to materially different considerations for the planning authority in determining what does, or does not, accord with the proper planning and development of the area in which the facility is located, as the analysis of the inspector, with which I agree, illustrates.

It was urged on behalf of the plaintiff that the fact that a waste permit, rather than a waste licence, is a prerequisite of the carrying out of the activity proposed by the plaintiff indicates that it is a low risk activity in terms of environmental impact. Whether the proposed activity is low risk or high risk per se is not in issue. Whether it is low risk or high risk by comparison to the former activity is not in issue. The issue is whether the two activities are materially different in planning terms. If they are, planning permission is necessary and it is for the planning authority to assess the risk and to decide whether permission should be granted or refused and, if granted, on what terms. Moreover, as I have stated, even if the proposed activity is the subject of a waste permit, that does not preclude the planning authority from regulating waste recovery and disposal activities by way of planning permission.

The final issue is the application of the 1994 Regulations. On this issue, the inspector concluded that the proposed activity would constitute a "development" within the meaning of the Act of 1963, being a material change of use, but that the exempted development provisions contained in Articles 8 to 11 of the 1994 Regulations would not apply. In my view, the conclusion of the inspector as to the application of the 1994 Regulations, and his reasoning in support of the conclusion, are correct for the following reasons:

(a) Insofar as any of the structural and infrastructural changes to the facility envisaged in the plaintiff's proposal come within Class 19 or 20 of Part I of the Second Schedule, the exemption provided for in Article 9(1)(a) could not be availed of because it would be excluded by Article 10(1)(a), in that the development would be inconsistent with the use specified under the existing permissions (sub-para. (i)) and would involve ancillary works to structures the use of which would be an unauthorised use (sub-para. (viii)).

(b) The proposed change of use does not come within any of the classes of use specified in Part IV of the Second Schedule.

The inspector concluded, correctly in my view, that Class 4 is not applicable. In any event, as I have stated, it was acknowledged by the plaintiff before the Court that Class 4 is not applicable.

Decision

The decision of the Board on the reference was correct. The proposed activity for the facility which was the subject of the waste permit application would constitute a material change of use of the facility and a "development" within the meaning of the Planning Acts. The development would not be an exempted development.

The relief sought in the special summons is refused.