THE SUPREME COURT
[Supreme Court Appeal No. 304/2010]
[High Court Record No: 2007 No. 144 JR]
MacMenamin J.
Laffoy J.
O’Malley J.
MICHAEL CRONIN (READYMIX) LTD
RESPONDENT
APPELLANT
AND
KERRY COUNTY COUNCIL AND THE DEPARTMENT OF THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT
NOTICE PARTIES
JUDGMENT of Ms. Justice O’Malley delivered the 30th day of May 2017.
Introduction
1. In these judicial review proceedings the respondent to the appeal (hereafter “Cronin” or “the company”) sought an order of certiorari in respect of a ruling made by An Bord Pleanála (“the Board”) pursuant to the terms of s.5 of the Planning and Development Act 2000 (“the Act”). The Board had determined that works carried out by the company amounted to development and were not exempt from the requirement to obtain planning permission. The learned High Court judge (Ryan J., as he then was) granted the relief sought but also granted a certificate for appeal to this Court pursuant to s.50(4)(f)(i) of the Act. The question certified is whether or not he was correct in his interpretation of s.4(1)(h) of the Act, which led him to hold that the contentious works carried out by Cronin constituted exempted development within the meaning of the Act.
2. The facts relevant to the appeal can be briefly stated. Cronin operates a quarry at Coolcaslagh in Co. Kerry. The site owned by the company covers about 130 acres, of which 96 acres are used for excavation. It produces both readymix concrete and concrete blocks at the site.
3. In late 2003 the County Council (“the planning authority”) became concerned about the extent of the operations and inspected the site with a view to enforcement proceedings. The inspector found a hard surfaced yard, of some two acres in extent, being used for the purposes of the block-making operation. The company’s position was that quarrying and the production of concrete at the site pre-dated the Local Government (Planning and Development) Act 1963; that making concrete blocks was not different in kind to the manufacture of readymix concrete since the same ingredients were used; and that there was no new structure on the site but simply the replacement and extension of an old yard for the purpose of drying and storing the blocks prior to despatch to customers.
4. In May 2006 the planning authority applied for a determination from the Board under the procedure provided for in s.5 of the Act as to whether or not there had been development, and, if so, whether or not it was exempted development. The authority believed that the quarry and the concrete plant had been in existence for longer than seven years and accordingly no enforcement action could be taken in that regard. However, it considered that they were both unauthorised developments. It also said that it had established that the block manufacturing business was a recent development and therefore amenable to enforcement.
5. The case made by Cronin was that the works had not required planning permission. It was asserted, firstly, that the entire quarry site and related processing activities pre-dated the time of commencement of the Local Government (Planning and Development) Act 1963. It was submitted, in relation to the repaving and extension of the yard, that no new structure had been erected and that the previously-existing concrete yard had been in use as part of the established readymix concrete batching operation. The space taken up was less than two acres of a site of 130 acres. There was no appreciable increase in the extent of manufacturing operations; no perceptible traffic impact; and no perceptible noise or dust impact. The works had been carried out in a low-lying, worked out area of the quarry and were not visible from any public road or any residence in the vicinity. In those circumstances the exemption provided for in s.4(1)(h) of the Act was relied upon. The development, it was submitted, came within that provision because it constituted works for the “improvement” or “alteration” of a structure, which affected only the interior of the structure or which did not materially affect the external appearance of that structure so as to render its appearance inconsistent with the character of the structure.
6. It was also submitted that the planning authority had failed to demonstrate that the block-making amounted to a material change of use, rather than being ancillary to the overall quarry use. The batching process for the blocks was said to be no different to the process for readymix concrete, up to the point that the wet concrete emerged from the batching plant. At that point readymix concrete was poured directly into delivery trucks and taken to construction sites, whereas the blocks had to be shaped and were then laid out for three days on the paved area to dry out before delivery. The overall level of production of concrete had not changed.
7. The inspector who reported to the Board took the view that on the evidence, the Board could only conclude that some form of quarry operation and block manufacture was in place prior to the commencement of the 1963 Act, but that it could not be determined that no material change of use by reason of intensification had not occurred. She pointed to evidence suggesting that production had increased in 1984. In the circumstances she felt that it could not be determined that the quarry was authorised, and she therefore could not accept that the use of the batching plant was ancillary to an authorised quarry.
8. The inspector considered that the laying out of the hard surfaced area and the use of the two-acre part of the site for purposes related to block manufacture was of critical importance. Her conclusion was that the laying out of the hard surface area was development and was not exempted development. Her reasons were as follows:
“In relation to the enlargement of the yard, which is stated to be about 2 acres in extent, there is no dispute between the parties that the yard has been extended to facilitate drying and storage essential to the production of concrete blocks. The operator’s case is that the replacement of the old yard and the extension of the yard are not visible and that an exemption under s.4(1)(h) applies. Section 4(1)(h) relates to the ‘maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure…’
I submit that the replacement /repaving and extension of a concrete yard would not be described as either maintenance or improvement of a structure as neither would allow for an extension of the area. The term ‘alteration’ is defined to include plastering or painting, removal of plaster or stucco or the replacement of a door, window or roof that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures’.
I consider that neither the legal definition nor the ordinary dictionary definition of ‘alteration’ encompass the concept of an extension or enlargement as a defining characteristic but rather relates to more minor changes to a structure. I consider that an extension of the yard has taken place and that this is ‘works’ and is ‘development’, but would not be described as ‘maintenance, improvement or other alteration of any structure’ and does not therefore fall within the exempted development provisions set out in section 4(1)(h) of the 2000 Act and I reject the operator’s arguments in this regard.”
(Emphasis in the original.)
9. The inspector accepted Cronin’s argument that the production of concrete blocks, as opposed to readymix, did not have a material planning impact in terms of the type and quantity of raw materials used or in relation to the traffic implications. Nor did it constitute an intensification of use in terms of materials sourced from the site and then processed and exported from the site. However, it was likely to give rise to additional noise and dust related disturbance. On this aspect, she noted that there was a private residence nearby. In addition, concrete block production required an extensive area of land for the purpose of open area storage. In this respect she considered that there had been a significant change in the nature of the process and an intensification of use of the lands. She said:
“The production of concrete blocks is reliant on the laying out of 2 acres of a 130 acre site, of which only 96 acres is used for excavation, and the use of that land for the drying and storage of blocks. I consider that this use of land has material planning consequences in terms of the visual impact of the development when viewed from surrounding lands - natural regeneration of the site could have occurred if this area was not surfaced. There are changes in terms of the surface water flows in the area and the extensive nature of the operation in landuse terms compared with the production of readymix with possible resulting impacts on geology and hydrology. The development of an extensive hard surface area at this location would also militate against the development of a habitat which would potentially be of ecological importance and this is a further consequence in terms of the proper planning and sustainable development of the area. I conclude that the development of a 2 acre hard surfaced area has material planning consequences. The process of production of concrete blocks is therefore materially different to that of the production of readymix and constitutes a material change of use.”
10. In coming to the conclusion that there had been development and that it was not exempted development, the Board ruled, inter alia, as follows:
• that the laying out of a hard surfaced area of two acres in extent was development;
• that the laying out of a hard surfaced area of two acres in extent did not fall within the scope of s.4(1)(h) of the 2000 Act, in that it did not constitute works for the maintenance, improvement or other alteration to a structure;
• that the manufacture of blocks was dependent on the use of a large area of land for drying and storage which gave rise to material planning effects; and
• that the production of concrete blocks was an intensification of use that consisted of a material change of use of the land.
11. Cronin thereafter instituted judicial review proceedings. The two reliefs claimed were an order of certiorari of the decision that the block making operation was development, and was not exempted development, and a declaration that the Board did not have jurisdiction to make that decision in the absence of sufficient evidence as to the use of the lands at October 1st, 1964 and/or prior to the alleged material change of use of the lands. It should be noted that, having regard to the certified question, this appeal is not concerned with the concept of “material change of use” but only with the issue of exempted development.
The relevant legislative provisions
12. It is relevant to consider, to begin with, the general policy of the planning permission regime as set out in the Act. Section 32 provides that, subject to the other provisions of the Act, permission is required in respect of any development that is not exempted. Subsection (2) of that section stipulates that, where permission is required, development is not to be carried out except under and in accordance with permission granted under the Act.
13. In the vast majority of cases, an application for permission to develop land is to be made to the local planning authority. In deciding whether or not to grant permission, or to grant permission subject to conditions, the planning authority is constrained by the provisions of s. 34 of the Act to consider the proper planning and sustainable development of the area. Regard must be had to the development plan for the area; the provisions of any special amenity area order relating to the area; any European site or other prescribed area; where relevant, the policy of the Government or any Minister of the Government; and any other relevant provisions of the Act or regulations made thereunder. Section 34(4) provides for a non-exhaustive list of 18 matters that may be the subject of conditions attached to planning permission, including measures to regulate the use of any adjoining land owned by the applicant, the control of noise and vibration and conditions relating to the carrying out of the necessary works.
14. Development, for the purposes of the Act, is defined in s.3 as meaning, except where the context otherwise requires,
"the carrying out of works on, in, over or under land or the making of any material change in the use of any structures or other land".
15. Section 2(1) provides in relevant part that the word "works" includes
“any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal."
16. Section 4(1) sets out a list of categories of developments which do not require permission. These are referred to as exempted developments. As far as non-State developers are concerned, the notable classes are perhaps those dealing with the use of agricultural land and those dealing with forestry-related activities. There is also an exemption for house occupiers in relation to the use of any structure or land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such.
17. Section 4(2) empowers the Minister to provide, by regulation, for any class of development to be exempted development for the purposes of the Act where, inter alia, in his or her opinion, the carrying out of that class of development would not offend against principles of proper planning and sustainable development by reason of its size, nature or limited effect on its surroundings.
18. The Act has been amended in recent years but as of the date of hearing of this matter in the High Court the category of exemption in issue in the case was s.4(1)(h), which refers to
"development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures."
19. The word “structure” means any building, structure, excavation or other thing constructed or made on, in or under any land, or any part of a structure so defined. Where the context so admits it also includes the land on, in or under which the structure is situate.
20. It is also necessary to consider the meaning of the word "alteration". It is not defined as such, but s. 2(1) of the Act provides that it
“includes
(a) plastering or painting or the removal of plaster or stucco, or
(b) the replacement of a door, window or roof,
that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures.”
The High Court judgment
21. It was contended on behalf of Cronin that the work done to the yard surface was an alteration or an improvement, or perhaps even maintenance, of the structure. The structure in question was either the quarry as a whole, or the concrete yard surface.
22. The Board submitted that the laying down of the yard was an extension, whether considered as an extension of the quarry itself or of the concrete area. Extensions are specifically mentioned in the definition of “works” and must be seen as a separate and distinct category within that definition. They cannot be subsumed into the concepts of “alteration” or “improvement” and are not specifically included in the exemption provisions. The works therefore could not be exempt, whether they materially affected the appearance of the structure or not.
23. The trial judge considered that the Board’s approach required the exclusion from s.4(1)(h) of some of the meanings of “works” set out in s.2(1). He preferred to assume that the word was to be given the same meaning in both sections, so that an extended version of the provision for exempted development under the relevant heading would read:
“the carrying out of works (including any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal) for the maintenance, improvement or other alteration of any structure, being works which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure.”
(Emphasis in the original).
24. Ryan J. rejected the argument that extensions were excluded from s.4(1)(h), stating that an extension could be considered an improvement or an alteration. The words should not be construed as a term of art in a criminal statute or a Tax Act. At p.9 of the judgment he said:
“The Board was wrong in its interpretation of s.4(1)(h), in my view. An extension is not excluded as a matter of definition. Maintenance and supervision [sic - recte improvement] (and other alteration) are the purposes for which the work is done in exempted development. The definition of works in s.2 lists the kind of activities of which any act or operation constitutes works. So, an act of demolition amounts to works; so does an operation of renewal etc. An act or operation of construction or repair may be required for the purpose of maintenance of a structure and that is obviously intended to be exempted development, but it would be excluded if the Board’s submissions are correct. By insisting that the work done must be actual maintenance, improvement or other alteration, rather than for [the purpose of] maintenance etc., the Board confuses purpose and act and overlooks ‘the carrying out of works’ in s.4(1)(h).”
25. The trial judge considered that his was, in any event, a more practical approach because otherwise permission would be required for every small extension to a private house. He acknowledged, however, that his interpretation required the giving of two different meanings to the word “alteration”. This was because, in his view, “alteration” in s.2(1) described acts, including painting and plastering, which resulted in a material impact on the external appearance of a building while “alteration” in s.4(1)(h) related to purpose. He found it necessary to take this approach in order to avoid attributing meanings to the word which were actually in conflict with each other.
26. In his concluding remarks on the issue the judge said:
Submissions in the appeal
27. Counsel for the Board summarises the effect of the ruling of the trial judge as being that all types of works described in s.2(1) can be exempt under s.4(1)(h), provided they are for the specified purposes and do not materially affect the appearance of the structure in question. This would be so even if the development bore no relationship to the original structure. It is submitted that this approach overlooks the fact that the Act deals with a regulatory scheme, which imposes a general requirement that all development should be the subject of planning permission. This general requirement should, it is submitted, be interpreted broadly while the discrete exemptions provided for should be interpreted narrowly. By including all s.2 descriptions of “works” within the exemption in s.4(1)(h), depending only on purpose and visual impact, the trial judge’s reading of the legislation ignored the importance of other planning considerations such as environmental impact. Appearance is of very slight relevance in the case of a quarry but issues relating to water, noise and traffic could be very significant.
28. It is submitted that it was an error on the part of the trial judge to consider that the purposive reading adopted by him was required in order to allow for small extensions to private houses, since the power of the Minister, under s.4(2) to exempt specified classes of development, by way of statutory instrument, has already been utilised for that and many other categories.
29. Looking specifically at s.4(1)(h), counsel submits that it provides for a limited category of works that amount to alterations (with the concepts of maintenance and improvement being subsets), which are either wholly internal or, if external, are insignificant. It is unnecessary in such cases to subject the development to the whole range of planning considerations, precisely because the paragraph only applies to a limited range of works. It would be absurd to construe it as covering any works, no matter what the scale and no matter how slight the relationship with the original structure, just because they are intended as improvements.
30. Counsel for the Board relies on Dillon v. Irish Cement Ltd (unrep., Supreme Court, 26th November, 1986) as an authority dealing specifically with the proper approach to interpretation of an exemption under the Act. The category of exempted works in question in that case was set out in regulations made under the then applicable legislation. Finlay C.J. said:
“I am satisfied that in construing the provisions of the exemption Regulations the appropriate approach for a Court is to look upon them as being regulations which put certain users or proposed development of land into a special and, in a sense, privileged category. They permit the person who has that in mind to do so without being in the same position as everyone else who seeks to develop his lands, namely, subject to the opposition or interests of adjoining landowners or persons concerned with the amenity and general development of the countryside. To that extent, I am satisfied that these Regulations should by a Court be strictly construed in the sense that for a developer to put himself within them he must be clearly and unambiguously within them in regard to what he proposes to do…”
31. Reliance is also placed on South Dublin County Council v. Fallowvale Limited [2005] IEHC 408. In that case McKechnie J. was dealing with an application for an injunction, under s. 160 of the Act, where the respondent developer claimed the benefit of an exemption. In determining where the onus of proof lay in such proceedings he considered a number of authorities, including Dillon v. Irish Cement and subsequent authorities where it had been cited. His conclusion (at paragraph 70) was that there was a clear preponderance of authority for the proposition that, when the development complained of was sought to be excused under an exemption provision, the onus of establishing that point was on the person asserting it.
32. On behalf of Cronin, it is submitted that the Court should give the words of the legislation their natural and ordinary meaning. Counsel argues that Dillon and Fallowvale were both concerned with the question of the onus of proof rather than the appropriate principles of statutory construction, and do not govern the issue in this case. If the Oireachtas had intended to limit the “works” concerned to certain sub-categories it would have referred to “works of … maintenance, improvement or other alteration”. Use of the word “for” is said to express the concept of purpose.
33. However, it is also submitted that the principle of strict construction of penal provisions is applicable, on the basis that the Act creates, in s.151, an offence of carrying out “unauthorised” development (that is, post-1964 development that has no permission and is not exempted development). On this basis, s.5 of the Interpretation Act 2005 is relied upon for the proposition that the words used should not be given a purposive meaning.
34. Counsel argues that the learned High Court judge was correct in holding that the exemption in question is limited only by the purpose of the development and its effect in terms of visual impact. It is said that the “structure” that has been altered in this case could be considered to be either the yard or the quarry. The previous hard-standing area was in itself an alteration to the quarry, so any alteration to that area might be said to be an alteration to the quarry. Counsel contended that there was no limitation of a permissible development in terms of size, provided that it remained within the quarry structure. It would be permissible to concrete over the entire floor of the quarry.
35. On this aspect, counsel for the Board refers to s. 261 and the definition of “quarry” therein, which specifically excludes a place at which manufacturing is carried out.
36. It is accepted by Cronin that the interpretation now urged might be said to weaken the framework created by the Act for environmental protection in the planning process. However, it is submitted that the existing controls relating to intensification and material change of use still apply. In any event, if the provision has an adverse effect it is a matter for the Oireachtas and not for intervention by the Court.
A penal statute?
37. Section 5 of the Interpretation Act 2005 provides as follows:
“5.-(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of-
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or Parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
38. Section 151 of the Planning and Development Act provides that any person who has carried out or who is carrying out “unauthorised” development shall be guilty of an offence. The offence is triable either summarily or on indictment. Section 156 provides that in such proceedings
“it shall not be necessary for the prosecution to show, and it shall be assumed until the contrary is shown by the defendant, that the subject matter of the prosecution was development and was not exempted development."
39. Section 156 thus creates a reverse burden or onus of proof. It would be inappropriate to determine in these proceedings what the precise parameters of that burden might be. If necessary it would fall to be considered in the light of authority holding that such a burden, in general, requires an accused person only to demonstrate the existence of a reasonable doubt. (For a recent discussion of this topic, see Director of Public Prosecutions v. Heffernan [2017] IESC 5.)
40. I am satisfied that the Act is not a penal statute in the sense of having as its objective the creation of a criminal offence, with the provision of a range of defences. The purpose and scheme of the Act is to create a regulatory regime within an administrative framework which, in the interests of the common good, places limits on the right of landowners to develop their land as they might wish. The principal objectives of the regime are proper planning and sustainable development, and the chief method of ensuring the attainment of those objectives is the planning permission process. It is based on the principle that developments that might have some significant impact, having regard to the range of factors encompassed within the concepts of proper planning and sustainable development, should go through the assessment process necessary for the grant of planning permission. The primary roles in that process are given to the planning authorities and the Board. The main powers of enforcement provided for in the Act are conferred on them.
41. A crucial point, for the purposes of this case, is that those bodies are responsible for deciding what is or is not exempted development. They do so by exercising civil powers conferred by the Act, not in the context of a criminal prosecution. It is necessary to point out again that the issue in this case arises from a ruling made in the procedure provided under s.5 of the Act. That provision sets out a scheme whereby, in the first instance, any person may apply to the relevant planning authority for a declaration as to whether what has occurred in a particular development is or is not development; or whether it is exempt development. A planning authority may, on its own initiative, make a similar application to the Board. The procedure is an expedient method of determining the status, within the regulatory regime, of a particular development about which some doubt may exist.
42. In Grianán an Aileach Interpretative Centre v. Donegal County Council (No.2) [2004] 2 IR 625 the Supreme Court held that, having regard to the availability of the s. 5 procedure, the High Court had no jurisdiction to grant a declaration that certain proposed activities at a venue were covered by the terms of its planning permission. While such a question might legitimately come before the courts in, for example, enforcement proceedings, the jurisdiction to determine the issue in the first place had been conferred on the planning authority and on the Board. In Wicklow County Council v. Fortune [2013] IEHC 397 Hogan J. held that this reasoning must be taken as impliedly precluding the High Court from finding that a development was exempted where there was an unchallenged decision by the Board that it was not. I agreed with his conclusion in my judgment in Wicklow County Council v. O’Reilly [2015] IEHC 667.
43. It follows that the primary role in determining whether a development is exempted or not is given to (depending on the circumstances) either the planning authority or the Board. A decision by one of those bodies is an authoritative ruling on the issue, subject to the potential for judicial review. However, it plainly does not, and could not, result in a determination of guilt or innocence of a criminal offence. There was no suggestion to the contrary at any stage of these proceedings. In my view, therefore, it is entirely inappropriate to read the provisions of s.4 as if they related to “the imposition of a penal or other sanction”. What they are concerned with is the exemption of categories of development from the general requirement to obtain permission.
44. In any event, I consider that s. 5 of the Interpretation Act has no application to the matter before the Court. Section 4(1)(h) is not obscure or ambiguous and does not lead to an absurd result.
Conclusion
45. The issue, then, is whether the plain intention of the Oireachtas can be ascertained. In my view it can. I agree with the argument of counsel for the Board, as summarised in paragraphs 28 to 30 above, that the effect of the High Court judgment would be to render exempt a range of developments far in excess of the intention of the Oireachtas. One must bear in mind the overall framework and scheme of the Act, with the many considerations that come into play in the planning process, and look at the context of the provision in question within that framework. I think it is manifestly unlikely that the intention was to render exempt all works carried out on any existing structure, including unlimited extensions in size, subject only to considerations of visual appearance (and subsequent considerations arising from any intensification of use). Nor do I consider that the words used in the section compel the Court to the conclusion that this is the meaning of the section.
46. In the first place, it seems necessary to stress that there is no single definition of the word “alteration” for the purposes of the Act. Thus, for at least some purposes of the Act an “alteration” may involve something that changes the external appearance in a way that is inconsistent with the character of the structure in question, or with the character of neighbouring structures. However, for the purposes of the exemption an “alteration” must not have that effect.
47. Given the different ways in which the word is used, it is best taken as simply bearing its ordinary meaning of “change”. Obviously, an extension is an alteration but that does not really advance the argument in any direction.
48. It is true that, in principle, an extension could be considered to be an improvement. However, that is a concept that requires further examination. Almost by definition, any proposed development will be an improvement from the point of view of the developer. In my view the trial judge fell into error in ascribing such significance to the word “for” in the phrase “works for the maintenance etc” as to make the purpose for which the works were carried out of paramount importance. In the context of the overall framework, policies and purposes of the Act, that is to ascribe a weight which I do not believe the word can bear. I do not consider that it was the intention of the legislature to make the necessity to apply for planning permission dependent on the motive and purpose of the developer. It seems to me that an “improvement”, for the purposes of an exemption, must be something that relates to the internal use and function of the structure, resulting in either no externally noticeable difference or an insignificant difference.
49. In my view the interpretation placed on s.4(1)(h) of the Act by the High Court was incorrect. I accept the arguments of the Board as to its true meaning, and consider that an extension is a development that does not come within the exemption. In the circumstances I would allow the appeal.
