H257
Judgment Title: Shillelagh Quarries Ltd -v- An Bord Pleanála Neutral Citation: 2012 IEHC 257 High Court Record Number: 2011 154JR Date of Delivery: 27/06/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2012] IEHC 257 THE HIGH COURT JUDICIAL REVIEW IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2010 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT 2000 (AS AMMENDED) AND IN THE MATTER OF AN APPLICATION RECORD NO: 2011/154JR BETWEEN: SHILLELAGH QUARRIES LIMITED APPLICANT -V-
AN BORD PLEANÁLA RESPONDENT SOUTH DUBLIN COUNTY COUNCIL & DUBLIN MOUNTAIN CONSERVATION AND ENVIRONMENTAL GROUP NOTICE PARTIES Judgment of Mr. Justice Hedigan delivered the 27th day of June 2012 1. The applicant is a limited liability company carrying on business as the operator of a quarry. Its address is Aghfarrell, Brittas, Co Dublin. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts. The first notice party is the County Council with responsibility for the administrative area of South Dublin. The second notice party is a Conservation and Environmental Group concerned with the Dublin mountains. Their nominated agent is O'Connell & Clarke Solicitors whose address is Suite 124, The Capel Building, Mary's Abbey, Capel Street, Dublin 7. 2. The applicant seeks the following relief:-
(a) Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964 on a site registered under Section 261 of the Planning and Development Act, 2000 (Quarry Reference SDQU05A/1); (b) all existing ancillary facilities including the existing processing plant (crushing and screening plant), overburden storage areas, stockpile areas, water management system and the truck/vehicle partaking area; (c) extension of the existing quarry extraction area by 4.2 hectares, within the registered area to give a total extraction area of 15.5 hectares within an overall application area of 28.1 hectares; (d) provision of a wheelwash and hydrocarbon interceptor; (e) landscaping and final restoration of a site. (ii) A declaration that the quarry the subject of the Board's decision (the Quarry) commenced operations prior to the 1st October 1964. (iii) A declaration that the quarry is not unauthorised. (iv) If required, a stay on any proceedings pursuant to part VIII of the Planning and Development Act 2000 and/ or any proceedings in respect of any alleged breach of planning legislation in respect of the Quarry pending the final determination of the proceedings herein. 3.1 The applicant is the operator of a quarry at Aughfarrell, Brittas, in County Dublin. On the 20th of October 2005, the applicant's agents provided South Dublin County Council with the information relating to the operation of the quarry as required by section 261 of the Planning and Development Act 2000, which deals with the requirement to register quarries. The Council sought further information relating to the operation of the quarry pursuant to section 261 (3) of the 2000 Act. The applicant provided this information. The Council then published a notice in the Irish Times pursuant to section 261(4) of the 2000 Act, advising that the quarry had been registered in accordance with section 261 and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry and inviting submissions regarding the operation of the quarry. A submission was made in response to that notice by the Dublin Mountain Conservation and Environmental Group (the 'DMC&EG'), the second notice party herein. 3.2 On the 19th April, 2006, the Council issued a notice in accordance with section 261(7) of the 2000 Act requiring the applicant to apply for planning permission and submit an environmental impact statement in respect of the continued operation of the quarry. On the 23rd September 2008, a notification issued in respect of the Council's decision to grant permission for the continued use of the quarry subject to conditions. The Dublin Mountain Conservation and Environmental Group lodged a third party appeal in respect of the Council's decision to grant permission and the applicant's agents lodged a first party appeal against five of the conditions of the said decision to grant permission. 3.3 On the 24th December 2010, An Bord Pleanála refused permission in respect of the planning application for the continued use of the Quarry. The reasons for the decision were as follows:-
2. Having regard to:- (a) the planning history of the site, (b) High Court Judgement Ref. No. [1978] ILRM 85 (Frank Patterson and Eily Patterson v. Martha Murphy and Trading Services Ltd.), (c) the nature, scale and extent of activities carried out on site, (d) the provisions of Section 261 of the Planning and Development Act, 2000, as amended, and (e) the judgment of the European Court of Justice in Case C-215/06, Commission v. Ireland, delivered on 3rd day of July 2008, in which it was held that the retention permission system, as it applies in Irish law to projects that are required to be subject to Environmental Impact Assessment under the EIA Directives, does not comply with the Directives, It is considered that as the proposed development for which permission is sought is of a class that requires Environmental Impact Assessment in accordance with the requirements of EU Directive 85/337/EEC (as amended) and that it includes a significant element of retention permission, the Board is, therefore, precluded from considering a grant of planning permission in this case." Applicants Submissions
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and (b) (i) the applicant has a substantial interest in the matter which is the subject of the application ..." 4.2 While it was held in An Taisce (The National Trust for Ireland) v Ireland & Ors [2010] IEHC 415 that the mere registration of a quarry does not alter its legal status, that is not the argument that the applicant is making. The applicant submits that the legal authorised status of the quarry was confirmed by the Council by virtue of its decision to require the applicant submit a planning application and EIS for the continued use of the quarry. Once that determination was made the consequential planning application has to be assessed on that basis and that determination could not be questioned unless by way of Judicial Review pursuant to section 50 of the 2000 Act. Section 261(7) sets as a precondition for its application that "the continued operation of a quarry ... that commenced operation before 1 October 1964". Thus the applicant submits that the Council must have been satisfied that the quarry in the instant case was materially the same as that which commenced prior to the appointed day. 4.3 The Councils notice requiring the applicant to apply for planning permission warned the applicant that if it failed to apply for planning permission as required the quarry "shall be unauthorised". The implication being, of course, that where the required application is made the quarry shall not be unauthorised. In a letter which the Council sent on the 18th April 2006 it stated:-
4.4 Comprehensive information is provided before a planning authority makes its determination under s. 261(7). In O'Reilly v Galway City Council [2010] IEHC 97, Charleton J. made the following observations in relation to the information to be provided at p. 23:-
4.5 On the 24th December, 2010, the Board decided to refuse permission in respect of the planning application for the continued use of the quarry. It is clear from the Board's reasons and considerations that the board disagreed with the Council and was not satisfied that the quarry commenced prior to the appointed day, namely, 1st October, 1964. Thus the Board was of the view it was unauthorised development. For this reason, the Board decided that it was precluded from considering a grant of planning permission. The applicant submits that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the Board to go behind that determination when considering the consequential planning application. If this was not the case the provision of section 261(8) (b) would be anomalous, it provides:-
4.6 The applicant submits that the Board's decision was a direct attack on the validity of the Council's determination and that in the absence of a challenge by way of Judicial Review pursuant to section 50 of the 2000 Act (for which the time had long passed) the Board was not entitled to question the validity of the Council's determination and it had to make its decision on the premise that the quarry commenced operation prior to 1st October 1964. If the Board had proceeded on this basis it could not have concluded that the quarry was unauthorised and would not have concluded that it was precluded, by virtue of such unauthorised status, from considering a grant of planning permission. In essence the Board trespassed into the Council's jurisdiction and considered a matter that it had no jurisdiction to consider, i.e. whether the quarry commenced operation period to 1st October 1964. 4.7 A fundamental error was made by the Board was in considering that the planning application before it "includes a significant element of retention permission". The Board only came to this view because it disagreed with the Council's view that the quarry commenced operation before the 1st October 1964. The judgment of the European Court of Justice in Case C-215/06, Commission v. Ireland, delivered on 3rd day of July 2008, concerning the retention permission system as it applies in Irish law does not preclude the Board from considering a grant of planning permission for the continued operation of a Quarry which up to the time of the Board's decision is not unauthorised. In considering that it was "precluded from considering a grant of planning permission in this case" the Board made an error of law. The Department of the Environment, Heritage and Local Government in its Circular PD 6/08 dated the 8th October, 2008 provides that:-
Respondents Submissions 5.2 In this case South Dublin County Council required the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with s. 261(7). Requesting the above application involves the planning authority reaching a decision per s. 261 (7) (a) (ii) that the quarry commenced operations before 1st October 1964. The applicant maintains that this means that the Board is precluded from reaching a conclusion other than that the quarry commenced operations before 1st October 1964 and that it was and remains, "not unauthorised". The respondent submits that this is not correct. In Pierson and Others v. Keegan Quarries Limited [2009] IEHC 550 Irvine J offered a detailed analysis of the function and purpose of s.261 and, in particular, approved the following from Simons, Planning and Development Law (2nd Ed., Dublin: Round Hall, 2007) at para. 8.136 where he states:-
5.4 The applicant's quarry was the subject of the decision of Costello J. in Patterson v Murphy [1978] ILRM 85. That case concerned an application by then residents of Shillelagh Lodge (a residence near the Quarry) for an injunction against Martha Murphy and Trading Service Ltd in respect of the carrying on of quarrying activities on the site. Costello J. found as a fact that the operations then carried out at the quarry were so different to those carried on prior to the 1st October 1964 that it could not be said that the development had commenced prior to the appointed day. The Board had before it the text of Patterson v Murphy [1978] ILRM 85 when reaching its decision. 5.5 The applicant maintains that by reason of steps taken by South Dublin County Council pursuant to s.261 of the Planning and Development Act, 2000 the Board is precluded from determining that the Quarry constitutes unauthorised development. Specifically, it is maintained at Ground E.12 that "this issue had already been decided by...South Dublin County Council by its decision of the 18th April2006 pursuant to s.261(7)(a) of the 2000 Act, which decision was not judicially reviewed and is thereby res judicata." It is further contended that "this part of the reason" (i.e. that the existing quarrying operations presently conducted on site did not commence prior to the appointed day, namely 1st October 1964) constitutes "a collateral attack on this decision outside the statutory time limit and thus "it is ... submitted constitutes an error in law". It was held in An Taisce v Ireland [2010] IEHC 415 that "the mere registration of a quarry does not establish a pre 1964 use." Therefore there is no basis for the argument that the Board was precluded from determining its status to be unauthorised. Decision of the Court 6.2 Section 261 of the Planning and Development Act, 2000 requires the owner or operator of a quarry to provide particular information pertaining to such quarry to the relevant planning authority. Once such information is received, the planning authority who then registers the quarry must publish notice of the registration in one or more newspapers circulating in the area within which the quarry is situated. The planning authority may as was done in this case indicate in this notice that it is considering, in accordance with s.261(4)(iii)(II), requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with s.261(7). That sub-section provides where the continued operation of a quarry with an extracted area which is greater than 5 hectares, or that is situated on a European site or any other area prescribed and that commenced operation before 1st October 1964, would be likely to have significant effects on the environment a planning authority shall require, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority. Requesting that a planning application be made and an EIS be submitted involves the planning authority reaching a decision per s.261 (7) (a) (ii) that the quarry commenced operations before 1st October 1964. The applicant argues that this means that the Board was precluded from concluding that the quarry commenced operations before 1st October 1964. This contention was expressly rejected in An Taisce v Ireland [2010] IEHC 415 Charleton J. held that:-
6.3 The applicant claims that the Board has erred in determining that the existing quarrying operations presently conducted on site are unauthorised development. I accept the respondents submission that there is a difference in planning terms between quarrying activity which may have commenced prior to the 1st October 1964 but which has carried on without an intensification and quarrying activity which may have similarly commenced, but which has since that time, intensified so as not to benefit from any exemptions by reason of its pre 1st October 1964 origins. I gratefully adopt the statement of Charleton J in An Taisce v Ireland [2010] IEHC 415, at para.3:-
6.4 In the period since 1964 there has been very substantial intensification of use of this quarry. Indeed the intensification of use was considered by the High Court in 1978 in the case Patterson v Murphy [1978] ILRM 85 where Costello J held as follows with regard to user in the period between 1964 and 1978:-
6.5 In addition to having the text of Patterson v Murphy [1978] ILRM 85 before it, the Board also had before it the Inspector's Report. The Inspector states as follows at page 40:-
6.6 The applicant argues that the Board erred by characterising the application as one for retention and taking the view that the decision of the European Court of Justice in Case C-215/06 Commission v Ireland precluded the grant of permission herein. The effect of the applicant's submission is that if the label of retention is not used the decision in Case C-215/06 Commission v Ireland does not apply. I agree with the respondents submission that whether or not the word "retention" is used, the substance is the same here as in the case of retention permission. Development, which would otherwise be required to undergo the EIA process, cannot be given ex post facto development consent under EU Law. In this case planning permission was being sought for inter alia, "Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964". To grant planning permission would therefore have been to give development consent for a matter which was required to undergo the process of an EIA. The applicant seeks to rely on the provisions of Circular PD 6/08 exhibited at TM3 which provides:-
6.7 To summarize, Firstly I do not accept the argument that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the Board to go behind that determination when considering the consequential planning application. The mere registration of a quarry does not establish a pre-1964 use. In fact not only is the Board entitled to look at the planning status of the quarry, it is obliged to carry out its own assessment of the planning status of the quarry. Secondly, I am satisfied that there was evidence before An Bord Pleanála upon which it could reach the conclusion that the quarry operations intensified since 1964. This fact was the clear finding of Costello J in Patterson v. Murphy [1978] ILRM 85 (cited above) Such an intensification amounted to a change of use disentitling the applicants to an exemption on the basis of pre 1964 status. Thirdly, it seems to me that the Board was entitled to conclude that the permission sought included a significant element of retention permission, and to take account of the case C-215/06 Commission v Ireland. The permission sought was for the continuance of use of the existing quarry. This matter proceeded by way of telescoped hearing. For all the above mentioned reasons I am not satisfied that the applicant has shown that there are substantial grounds for contending that the decision concerned ought to be quashed. Leave is therefore denied.
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