Supreme Court of Ireland Decisions

1. The Case Stated herein by Mrs Justice McGuinness on the 30th day of October 1997 for the opinion of this Court raises an important and novel question as to the extent to which development - and more particularly “works” - commenced before the 1st day of October 1964 (“the appointed day”) is excluded from the scope of the Local Government (Planning and Development) Act 1963 by virtue of the provisions of s.24 of that Act.

2. The circumstances in which the particular question arises are set out in detail in the case stated but may be summarised as follows. By an agreement in writing dated the 16th September 1952 Richard Looby granted a licence to Agricultural Limestone Limited to dig. Process, remove and carry away limestone” from that part of the lands of Kilgrainey in the County of Waterford containing approximately eight acres and delineated on the map annexed thereto. It appears that Agricultural Limestone Limited commenced quarrying shortly after the date of that agreement but was taken over by the Respondents herein, John A

3. Wood Limited, in or about 1969. The eight acres comprised in the 1952 Agreement may be conveniently described as “the original Looby lands “. By an indenture of lease dated the 5th day of September 1972 made between the said Richard Looby of the one part and the Respondents of the other part the said Richard Looby demised to the Respondents a further part of the lands of Kilgrainey comprising some thirty-six acres for a term of forty years from the 1st day of January 1970 subject to the various royalty charges thereby reserved. The lands comprised in the 1972 lease may be described as “the additional Looby lands” . In 1986 the Respondents purchased from a Mr Doyle further lands in the town land of Kilgrainey. The conveyance by Mr Doyle is not annexed to the case stated and does not appear to have been exhibited in the High Court proceedings. However, Counsel on behalf of the Respondent explained that the lands included in the 1986 conveyance comprised some ninety-six acres of which only approximately forty acres contained limestone suitable for quarrying. It may be relevant to note that it was further explained that the additional fifty acres approximately were acquired from Mr Doyle because he was unwilling to dispose of the limestone-bearing land separate from the remainder of his take.

4. It is common case that on the appointed day the Respondents were quarrying the original Looby lands and extracting limestone therefrom. Again, it was common case that after the acquisition of the additional Looby lands the Respondents extracted limestone therefrom without any apparent objection from the planning authority. It was only when the Respondents commenced quarrying operations on the Doyle lands in 1995 that proceedings were threatened and ultimately brought by the Waterford County Council as the planning authority for the county of Waterford. The proceedings were brought under s.27 of the Local Government (Planning and Development) Act 1976 and on the 16th November 1995 the learned Judge of the Circuit Court refused to grant an injunction restraining the Respondents

5. The physical features and more particularly the boundaries of the Looby lands and the Doyle lands are material partly because disputes in relation thereto may have brought the matter to the attention of the planning authority and partly because these boundaries may be of relevance in answering the question posed by the learned trial Judge.

6. It appears that the entire of the Looby lands and that part of the Doyle lands containing recoverable deposits of limestone are all situate within the town land of Kilgrainey, County Waterford and that the combined land holding is bounded on the north by the White Church Road and on the south by the Canty Road. The Looby lands and the Doyle lands are separated by a boithrín which connects the White Church Road to the Canty Road. Local residents contended that there was a public right of way over this boithrín. Whether such a right existed was never finally determined because a sensible agreement appears to have been reached with the local residents involved under which the route was to be maintained subject to the right of the Respondents to close it off from time to time in the interests of safety. That there was and is a modest route, fairly described as a boithrín, separating the Looby lands from the Doyle lands is an objective fact. Finally in relation to material facts, it is important to note that the seam of limestone which had been identified in the original Looby lands in fact extended for a distance of some six miles.

7. The Respondents submitted - no doubt correctly - that the issue in the present case did not involve any question as to what constituted “exempted developments” within the meaning or for the purposes of section 4 of the 1963 Act. The issue in this case concerned the proper interpretation of s.24 of that Act which, so far as material, provides as follows:

8. ““Development” in this Act means, save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land.”

9. In turn the word “works" is defined as including:

10. Counsel on behalf of the Respondents contended, first, that quarrying of the seam of limestone having commenced before and continuing at the appointed day there was no obligation to obtain planning permission for the continuation of those works even if they were to continue for many years and over a very substantial area. Alternatively, the Respondents contended, they are entitled to continue works which were “a natural and logical extension of the development which existed before the appointed day” . This was an expression taken from views expressed by the late Eamonn Walsh when a senior counsel and author of an authoritative book on planning law but before his appointment to the Bench. In the views expressed by him and adopted by counsel on behalf of the Respondents he went on to explain that what he meant by the expression aforesaid was “that it could also have been reasonably anticipated that the development would progress to this point”. He pointed out that one would have to disregard the apparent change of use in the sense that land which had formerly been used for agricultural purpose was being swallowed up by the advance of the extraction programme.

11. However, Mr Justice Walsh in the views expressed by him did state that some limitation must be imposed on the extent to which works that had started might be continued. He suggested that the deposit being worked must be the same deposit; that there could be no leapfrogging over major roads, rivers or other developments so as to reach what was essentially a new seam. He thought that one could cross a minor road but that a major baffler would present a

12. Mr Gallagher SC on behalf of the Applicant/Appellant likewise contended for either an extreme interpretation of s.24 or a more moderate one. He submitted that quarrying operations in existence on the appointed day could not be continued at all thereafter without the developer obtaining planning permission. That argument was based on the fact that every quarrying operation - certainly every lateral extension of a quarry - would appear to involve a material change of use of the surface area from - in the present case - farming to excavation works.

13. Indeed, Mr Gallagher’s argument found support in the typically colourful phrase of Lord Denning in Thomas David . v. Penybont RDC [1972] 3 All ER 1092 when he said of quarrying that:

14. It seems to me that the extreme views contended for by either party must be rejected. Not for the nature of the views in themselves but for the fact that they do not represent a proper interpretation of s.24 of the 1963 Act as construed within the general framework of that legislation. Section 24 of the 1963 Act having expressly excluded works from the need to obtain permission - which term expressly includes “any act or operation of ...... excavation......” - necessarily permits the continuation of such works even where they involve a material change in the user of adjoining ground. If s.24 had not contained a provision so as to exclude existing uses and works from the new planning code serious and perhaps unconstitutional

15. On the other hand it is, in my view, equally clear that the right to continue works commenced before the appointed day does not give to the developer an unrestricted right to engage in activities of the nature commenced before the relevant date. The exclusion from the operation of s.24 could not be invoked so as to confer on the particular developer a licence to carry on generally the trade or occupation in which he was engaged. The section merely permits the continuation to completion of the particular works commenced before the appointed day at an identified location. In my view the answer to the question posed by the learned Judge of the High Court requires the examination of all of the established facts to ascertain what was or might reasonably have been anticipated at the relevant date as having been involved in the works then taking place. It is clear that in some cases particular factors may be of decisive importance whereas in others those factors may be of little or no consequence. It has been argued, for example, that the fact that the property rights of the Respondents were confined to the original Looby lands at the appointed date is not a decisive factor. Whilst that may be so, I doubt that the converse would be correct. If the Respondents had acquired the ownership of the eighty acres for the purpose of extracting limestone before the relevant date and had commenced work on part of those lands I would have thought that the acquisition of the lands would have been of decisive importance in determining what might have been reasonably anticipated as the consequences of continuing the works commenced before the operative date. In the context of building works, presumably, plans

16. No question was posed by the learned trial Judge in relation to quarrying works which were or have been carried on on the additional Looby lands and it may be that those works have been completed so that no question of an injunction arises but I feel that it would be appropriate to say that the logic of my reasoning would have had equal application to those lands so that if the question had arisen I would have felt bound to say that planning permission would likewise have been required for planning operations on these lands.

17. Again, I note that the learned trial Judge has rightly reserved to herself the question whether or not an injunction should be granted in relation to the works started on the Doyle lands in 1995 and I accordingly express no view on that matter.

18. Finally, I should add that it is clear - perhaps with the benefit of hindsight - that the proceedings herein should not have been instituted under s.27 of the 1976 Act. As Mr Justice Gannon pointed out in Dublin County Council .v. Kirby [1985] IRLM 325, that section was:

19. The views so expressed by Gannon J were confirmed by Mr Justice Keane in Dublin Corporation . v. McGowan [1993] 1 IR 405 and applied by this Court in Mahon . v. Butler [1998] 1 ILRM 284. This observation is not intended as any criticism of the Applicant/Appellant or its legal advisors. Indeed they did explore the possibility of invoking other remedies. I merely draw attention to the fact that it is now clear that the matters in issue between the parties involved novel questions of law and complex questions of fact which could not be dealt with readily in summary proceedings. Indeed Mrs Justice McGuinness recognised that special difficulties arose in the case and sought to overcome them by facilitating the parties in furnishing additional evidence before her. These difficulties should be borne in mind where similar applications are contemplated.