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Cite as: [2005] IEHC 86

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Neutral Citation No: [2005] IEHC 86

THE HIGH COURT

2005/65JR

BETWEEN:

HEMPSTOWN STONE QUARRIES

APPLICANT

-V-

SUPT. THOMAS NEVILLE, GARDA COMMISSIONER &

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

TRANSCRIPT OF JUDGEMENT GIVEN BY MR. JUSTICE O'NEILL

ON THE 15th MARCH, 2005

MR. JUSTICE O'NEILL GAVE HIS JUDGEMENT AS FOLLOWS:

Judgment in Hempstown Stone Quarries. In this application the Applicants seek judicial review and_ an order of certiorari of a decision made by the First Named Respondent on 15th December, 2004 whereby he refused the Applicant's application for a "Transfer Document" for explosives. Leave was granted by Macken, J on 24^th January, 2005. The background to this matter is as follows: The Applicants are licensees of a stone quarry at Slate Quarries at Rathmore, Naas, in the County of Kildare and they have that licence from Thomas and Patrick Cullen. The Cullen family have operated a quarry at this site for many many years and the evidence on affidavit establishes to my satisfaction that a quarry has been there and operated going back as far as 1837. The Applicants, in order to maintain quarrying, need to release more rock, and to do that, need to blast bedrock. They applied to the First Named Respondent on foot of a form known as a TF1 for permission or approval for the transfer and use of the explosives necessary to do that blasting. The correspondence with the application indicated the reasons for the application and the credentials of the Applicants and identified Mr. John O'Connell as the person who would carry out the blasting, together with a statement of his expertise and experience and in particular that he had been involved in the blasting for the Port Tunnel. It was also stated as part of this correspondence that there was adequate insurance in place.

In a letter of 13th December, the Applicants sought to address what they perceived as concerns by local residents, and their proposal in this regard was that there would be notice to residents of the times of blasting, and that the blasting would be done by experts, that there was adequate insurance cover in place. They also proposed the installation by independent experts of monitoring equipment in local residences during the blasting to ascertain any ill effect. They also proposed that the Gardai would escort and supervise the entire proceedings.

The First Named Respondent received a number of phone calls from persons objecting to the grant of this transfer document, and at the invitation of the First Named Respondent, several objectors wrote letters to the First Named Respondent containing their objections. These objections were on the grounds of traffic management or generation, noise, dust, air quality, dirt and mud on roads, and reduction of property values and damage to the rural environment, interference with the water supply, and damage to the equestrian industry.

The First Named Respondent, by letter of 15th December, 2004, communicated his decision on the application to the Applicant. The letter is in the following terms. It says as follows:

"Re the development at slate quarries, Rathmore, County Kildare.

Dear Madam, Thank you for your letter dated 7th December, 2004 in relation to this matter. However, I regret to inform you that I cannot accede to your application for a transfer document for explosives on the following grounds: Kildare County Council's planning authority pursuant to Section 154 of the Development Act, 2000, requires you to take note that you are required to immediately cease all development on this site. I am concerned that blasting at Hempstown Stone Quarry could have catastrophic effect on the bloodstock enterprise which includes breeding and training of horses. Noise Pollution: I am concerned about the noise associated with blasting in the location.

Air Pollution: I am concerned about the dust which would circulate in the area, effecting both people and wildlife.

Damage to houses in the area: I am concerned over what damage that regular blasting might cause to houses in the area. Water pollution: I am concerned that regular blasting will effect the water table thus impacting negatively on the water supply in each house in the locality. Yours sincerely."

The Applicant challenges this decision on a number of grounds. Firstly, that it was made in excess of the legal powers of the First Named Respondent in that it was based on material to which the First Named Respondent was not entitled to have regard, that is to say, planning and environmental concerns.

Secondly, it was irrational in that there was no sufficient material to support the conclusions of the First Named Defendant and, in particular, no material to support the objection based on interference with the water supply, or no material to support the objection which was to the effect that there would be damage to, or interference with, the equestrian industry locally. Thirdly, that the decision was made in breach of natural justice and fair procedures in that the First Named Respondent failed to inform the Applicants of the content of the objections received and failed to give the Applicants any reasonable opportunity to respond to the objections.

The Respondents opposed the application on the grounds that the application for a judicial review is premature; that the letter of 15th December, 2004 was not a final decision and merely expressed concerns, and it was open to the Applicant to revert to the First Named Respondent with fresh material.

Secondly, that the Applicant challenges a decision made under Section 13 of the Dangerous Substances Act, 1972, whereas the decision was not stated to be made under that statutory provision but was, in fact, made under Articles 8 and 9 of the European Community (Placing on the Market and Supervision of Explosives for Civil Uses) Regulations, 1995, Statutory Instrument Number 115 of 1995. Hence, it was contended by the Respondents that the application was misconceived. Thirdly, that the First Respondent was entitled to take into account the planning status of the quarry and possible adverse environmental effects of the transfer of the explosives. Fourthly, that the Applicant failed to provide sufficient information to the First Named Respondent and therefore the First Named Respondent was entitled to refuse the application. Fifthly, that the First Named Respondent did not act unfairly or irrationally.

A curious feature of the case is the ascertainment of the precise legal basis of the power exercised by the First Named Respondent. The Applicant contended that it was Section 13 of the Dangerous Substances Act, 1972 provided this legal power, whereas the Respondent submitted it was Articles 8 and 9 of the Statutory Instrument Number 115 of 1995 which was the source of the power.

Both of these instruments seem to me to make provision for the same thing and each could be said to provide a legal basis for the power exercised. The later provision, Statutory Instrument Number 115 of 1995, makes no reference to the earlier and it is made, that is to say the earlier one, is made under the aegis of the European Communities Act, 1972 for the purpose of giving effect to the directive number 93/15/EEC. In any event, in my opinion, nothing turns on this strange over-provision of statutory authority. There is no doubt that the First Respondent was legally competent to make the decision impugned. The first issue that has to be considered and decided by me is whether the First Respondent was entitled to take into account the matters set out in his letter of the 15/12/2004. In my view, he was not. All of these matters belong in the realm of other statutory authorities, for example, the planning authority for the area, or the Environmental Protection Agency. The First Named Respondent was not entitled to make a decision based on the merits of the content of the objections taken on these grounds. In placing himself as decision maker on the merits of these objections, he was usurping the statutory functions and authority of the local planning authority and perhaps also the Environmental Protection Agency. He was not entitled to do that. He would have been entitled to have regard to a proven non-compliance by the Applicant with other statutory or legal obligations such as proven breaches of the planning code. This would have had relevance to his decision in two respects.

Firstly, it would have impinged upon the character of the Applicant. Secondly, the absence of appropriate planning permission, if planning permission was required in the first place, for the activity for which the explosives were required would have vitiated ab initio the legal entitlement of the Applicant to carry on the activity in question.

In this case, the First Named Respondent went much much further in taking into account and deciding in favour of the objectors on the merits of their objections. In doing so, in my opinion, he acted ultra vires That would be sufficient to dispose of the case. However, it is appropriate that I should add the following, lest I am wrong in the above conclusion. I am of the opinion that even if the First Named Respondent was entitled to take these matters of objection into account, in failing to have informed the Applicant of the existence and content of the objections so that the Applicant would have had a reasonable opportunity to respond to these, he denied the Applicant natural justice and fair procedures. I do not accept that the letter of 15th December, 2004 was merely an expression of the concern by the First Respondent. The letter is cast unambiguously as a -decision with the grounds for that decision set out seriatim. In any event, the Applicant did attempt to respond to the letter of the 15th of December 2004 but did not receive any response from the First Respondent. I am satisfied that in this regard there was a breach of the Applicant's constitutional right to fair procedures. I am also satisfied, insofar as some of these objections are concerned, in particular the objection on the basis of interference with the water supply and the alleged damage to the equestrian industry, that there was insufficient material before the First Named Respondent to enable the First Named Respondent to reach the conclusion, apparently, that these objections were well founded. I say that allowing for the very low threshold that is required in that regard pursuant to the judgments in the Supreme Court in the case of O'Keeffe - v - An Bord Planeala, [1993]I I.R. 39. For the reasons set out above, I am satisfied that the Applicant must succeed and accordingly there will be a declaration in terms of Paragraph A in the Notice of Motion and an Order of Certiorari of the decision of the 15th December, 2004.

THE JUDGEMENT THEN CONCLUDED

Approved

18/3/05

Judge O'Neill