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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mason & Anor v. KTK Sand and Gravel Ltd. [2004] IEHC 183 (7 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/183.html Cite as: [2004] IEHC 183 |
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[2004] IEHC 183
RECORD NO. 2003/52/MCA
IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000
AND
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000
BETWEEN
AND
APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH
DELIVERED ON FRIDAY 7TH MAY 2004
I hereby certify the
above judgment to be a
true and accurate transcript
of my stenograph notes in
the above-named judgment
Patricia Myler
In these proceedings the Applicants seek orders pursuant to Section 160 of the Planning and Development Act, 2000 for: an order prohibiting the Respondents, by themselves their servants or agents, from carrying out works on lands which are located at Kimmeens Sand and Gravel Facility at Ballymore Eustace in the County of Kildare; an order prohibiting the deposition of waste material on lands situate at Kimmeens Sand and Gravel Pit at Ballymore Eustace in the County of Kildare or from making any use of same for waste disposal unless and until permission pursuant to the Planning and Development Act, 2000 has first been obtained; an order prohibiting any further works in relation to the development of sand and gravel at Ballymore Eustace in the County of Kildare, and or from using the said lands for waste disposal or keeping any deposits of waste on same unless and until planning permission for the aforesaid works and or use has first been obtained; an order restoring the land to its original condition and the removal of all plant and equipment from the land. Interim and interlocutory relief is also sought.
The Applicants live in reasonably close proximity to lands of the Respondent at Ballymore Eustace in the County of Kildare. The lands of the Respondent comprise of approximately 43 acres, which for convenience can be referred to as being in approximately three equal divisions referred to in the maps and plans submitted to the Court as Areas 1, 2 and 3 respectively. Area 1 appears to have been a sand and gravel pit which was operated and used prior to the coming into effect of the Local Government (Planning and Development) Act, 1963 and accordingly has been generally and will be generally in this judgment referred to as having a pre-Act user. Planning permission was granted for the development of Area 2 consisting of an extension to an existing sand and gravel pit which location was given as Kimmeens, Ballymore Eustace in the County of Kildare and the permission was granted by Kildare County Council subject to a number of conditions - Planning Register Reference is 1332/1980 and is dated 9th November, 1982.
The case of the Applicants is that the planning permission had a three year limitation period and therefore would have expired in th November, 1985. A check at the planning office has indicated that no application was ever made to extend the appropriate period of the permission and therefore there is no planning permission extant authorising any works to be carried out on the said lands. Given that it is central to considerations advocated during the course of the case it is of importance to quote its conditions in full.
The application was made pursuant to Section 26 of the Local Government (Planning and Development) Act, 1963 and the regulations made thereunder for the development of lands at Kimmeens, Ballymore Eustace, in the County of Kildare, to "extend existing sandpit into adjoining field". A copy of this permission appears as Appendix 1 to this judgment.
The Applicants' case was that Condition 2 of the permission dictated that the use of the land for the purpose of sand and gavel was to cease from the expiration of three years from the date of the order, and that even if works were carried out on the lands within a five year period, the use of the land must cease or must have ceased on or before 18th November, 1985. Since the date of the institution of proceedings the site has been the subject of major works consisting of the creation and manufacture of large berms of deposits of soil, a deepening in expansion of the existing pit area in the construction of various works of.engineering to include, roadways, office structures, pit linings and other deposition of material on the site. The use and movement of machinery and otherwise in the submissions of the Plaintiff included a massive intensification of use and this appears to have been carried out under or by virtue of a licence issued to the Respondents under the Waste Management Act, 1996. The licence was granted on 27th July, 2002 and allows for the recovery of land at the site the subject matter of the proceedings. On foot of an application by the Respondent for a "licence for the operation of an inert landfill in a disused sand and gravel quarry. The types of waste to be accepted are C and D material and the annual waste intake is limited to a maximum of 242,000 tonnes. The facility will have a maximum waste intake of 1,885,000 tonnes." A permit referable to the site was issued by Kildare County Council on 20th June, 2000, a note was attached thereto which reads as follows:
"The granting of this permit, and any condition imposed by it, does not exempt the holder of the permit from complying with the statutory obligations of any relevant legislation, including water pollution, air pollution, waste, litter and planning legislation."
There is no dispute concerning the fact that no planning permission was sought for the enterprise the subject of the licence. No planning application has been lodged for the use of the land as a landfill site and the Plaintiffs submit that no permission would be granted by virtue of the zoning of the land in an area which is and remains a high amenity area adjacent to Ballymore Eustace which has a status as 'special' village.
The submissions of the Applicant are that if the works have been carried out pursuant to the 1980 planning permission they ought not to be carried out because the said permission has expired. Secondly they submit that if the works are being carried out pursuant to the waste disposal licence the activities are unauthorised as no planning permission has been granted for the activity and even if there is an existing sand and gravel facility on site which they disputed the use part of which has not been abandoned, they submit, and that there was no authorised use and that there was an intensification of use such as was a material change of use as a sand and gravel pit after both the three year period and even after any five year period that may be applicable and that the same constitutes a material change of use from that of a sand and gravel enterprise which was authorised. I find this as a fact on the evidence. Further the current waste disposal installation and facility is asserted to be unauthorised development, and I find as a fact this to be so.
In the year 2000 the Planning Department of Kildare County Council note from their records that no planning permission appeared to exist in respect of the development that was referable to the licence issued under the Waste Management Act and requested the proposals of the Respondent to rectify the situation. This elicited the following reply from the Respondent:
"Further to your letter dated 11th December 2000, your reference UD 2399. I am writing to confirm that under permit 9/2000 KTK will be reinstating the section of the pit at Ballymore Eustace in accordance with drawing no. 001 attached. This complies "partly" with Condition 15 of the original planning permission no. 80/1332. There will be other development on the site in time to come and any other development apart from the permit planning permission will be applied for as normal. I hope this clears up the uncertainty about the site. A speedy reply would be very much appreciated."
The response of the Planning Department of Kildare County Council was to acknowledge receipt of that letter and note that same was in compliance with Condition 15 of the planning permission reference 80/1332. This matter was further dealt with, in May, 2001 Kildare County Council Planning Department expressed themselves as having "no objection in principle to the restoration of the lands in accordance with Condition 15 of planning register Ref: 80/1332. However, the condition also requires that lands be reinstated as closely as possible to the original ground contours, to this end, final contours and levels should be agreed with the Planning Authority. In addition dates and phasing should also be agreed. It is noted that works have commenced. Please submit details of finished land form (sections/contours) to the Planning Authority for its consent (Condition No. 15) together with details of proposed usage of the lands (Condition No. 23)."
The response of the Respondent was to send a considerable quantity of documentation under cover of a letter dated 23rd July, 2001 to the Planning Authority, with that correspondence was a letter to the County Secretary of Kildare County Council dealing with the waste permit no. - 09/2000 referred to as "restoration of sandpit at Coughlanstown East, Ballymore Eustace, County Kildare." It indicated a proposal to install certain facilities such as portocabin offices, weigh bridges, paving of roads, car parking and matters of that nature. Having concluded by saying that on completion of the restoration of the pit, the wheel wash, weigh bridge and offices would be removed. Those proposals were acceptable to the Planning Authority as expressed in a letter of 2nd August, 2001 to the Respondent. The Planning Department of Kildare County Council in a letter of 27th February, 2002 indicated that having considered the matter fully the Planning Authority had no objection to the restoration taking place subject to a number of conditions. The final condition was that "any other development on the site will require separate planning permission unless exempted by law."
A considerable quantity of work was carried out on the site including Areas 1 and 2. Expense incurred is stated to be in excess of E:l million. The infrastructural works were stated to have been carried out between October 2002 and were completed under the waste licence in or about July 2003. The proceedings issued at the end of the month of July of 2003.
The case for the Defendants is that the terms and conditions of the planning permission 80/1332 conferred exempted status on all works carried out to date by the Respondent and furthermore by virtue of the provisions of Section 2(2)(b) of the Local Government (Planning and Development) Act, 1982 the obligation to comply with the provisions of the planning permission were not delimited by time as contended for by the Applicants because that provision expressly provides that the limitation of duration of a planning permission provision in Section 2(1) of the Act of 1982 shall not affect:
"The continuance of any use, in accordance with the permission, of land,
(ii) where a development has been completed (whether to an extent described in paragraph (a) of this subsection other otherwise) the obligation of any person to comply with any condition attached to the relevant permission whereby something is required either to be done or not to be done."
Before considering the legal submissions made by the respective counsel in this case it is instructive to consider, briefly, the conditions attached to the planning permission the subject of so much debate. It was clear that the intended use of the premises was for the extraction of sand and gravel in a field adjoining an existing sandpit. I am satisfied that the existing sandpit was in Area 1 and that the adjoining field was referable to Area 2. I am. quite clear that there is a limitation period from Condition 2. It is, in itself, in the nature of a temporary permission. The time stated in Condition 2 is of importance because it was clearly envisaged that at the conclusion of a three year period the matter will be reviewed, therefore the only entitlement to use the premises was for a period of three years subject to the review that might take place, unless before the date of the expiry of the permission by influxion of time, a retention was granted by the Planning Authority or An Bord Pleandla. The hours of use of machinery in the pit was to preserve the amenities of the area.
Condition 8 provides that not more than 2.5 acres shall be stripped of topsoil at any time in advance of working. The reason for this was to preserve the amenity of the area. The control of this condition was clearly designed to avoid a situation that so often arises in cases of this nature where large tracks of land are stripped and explored or exploited and there is very much a blot left on the landscape. Condition 15 provides as follows:
"The whole of the surface area, including slopes and sections containing deposits accruing from the working of the pit shall be reinstated as closely as possible to the contours of the original ground. The date of commencement of restoration works, the phasing of such works, the sections to be reinstated and the final contours and levels to which the restoration shall be carried out shall be agreed with the Planning Authority."
This was not done prior to the carrying out of any work pursuant to the permission or during its stated three year life time or indeed within five years if it had a five year life.
Condition 18 provides that:
"No excavations shall take place within the area coloured red on the attached map no. TP586 .
No such map is available to me but I am satisfied, from consideration of the documents as a whole, that this as a matter of probability refers to Area 3 which was not pressed upon me as having the entitlements that might otherwise be said to attach to Areas 1 and 2.
Condition 22 provides:
"All existing topsoil removed in the course of working shall be separately retained from waste materials so that it can be readily reused and such topsoil shall be retained on site and spread evenly over exhausted dry areas and backfilled waste materials to the satisfaction of Kildare County Council and in accordance with an agreed rehabilitation programme."
The imposition of this condition is clearly to ensure proper development and in my judgment does not envisage the importation of waste materials but rather that the overburden that may be of no commercial utility as sand and gravel but which was not topsoil would, in conjunction with the topsoil on site, be used for backfilling and the topsoil spread over same. It seems to me that if it was intended that waste materials were to be or could be brought on or deposited on the site or otherwise imported into the site, the condition would have expressly said so and it does not.
Condition 23 provides as follows:
"Prior to the commencement of the development, the Applicant should have submitted a comprehensive rehabilitation programme for both the existing sandpit and the proposed extension to same. This should be accompanied by reports from ACOT and An Foras, Taluntais re viability of future uses."
The reason given for the imposition of this condition is "to ensure proper development and preserve the amenity of the area."
It is common case that this condition also was not complied with for development commenced before any programme of rehabilitation was prepared. Equally so it appears that notwithstanding that the application was extending the existing sandpit into an adjoining field that the Planning Authority may have taken the opportunity of imposing this condition so as to embrace Area 1, which appears to have had a pre-Act user, and other than the opportunity afforded by this application might have been unable to impose any condition by way of rehabilitation on Area 1.
Condition 25 provided that:
"A comprehensive landscaping scheme, including screen planting on site boundaries shall be carried out during the first planting season in accordance with the plans submitted on 20th July, 1982 and as otherwise agreed with Kildare County Council."
Again the reason for the imposition of this condition was "to preserve the amenity of the area." There is no certificate of compliance with this condition which was not addressed during the course of the hearing but a condition which, taken in conjunction with other conditions, in particular Condition 20, 15, 22 and 23 highlights the importance that was attached by the Planning Authority to restorative works or such works as would preserve the amenity of the area.
I find as a fact on the evidence before me that the enterprise which was of reasonably modest proportions and intended to be used and conducted in a sympathetic fashion and having regard to the amenities of the area has, under the guise of compliance with Condition 15 in particular, been used as an opportunity to open a landfill site.
Considerable importance is to be attached to the conditions attaching to a planning permission for to note the dictum of Hodson L.J. in Pyx Granite Co. Ltd. -v- Ministry of Housing and Local Government &. Anor [1958] I QB 554 C.A. at p. 579:
"The permission given has been given subject to those conditions, and non constat but that no permission would have been given at all if the condition had not been attached."
The application for planning permission must state the nature and extent of the intended development. The purpose of this requirement is to ensure that both the Planning Authority and any other person can evaluate or come to an appreciation of what is intended, the true nature of the contemplated development can be understood and appraised (Readymix (Eire) Ltd. -v- Dublin County Council and the Minister for Local Government unreported: Supreme Court, 30th July 1974). A development be it a structure and/or use is not in its effect confined to the planning unit. It can and in most cases has off site effects (Carrick Hall Holdings Ltd -v- Dublin Corporation) (1983] 1LRM 268 hence the obligation on planning authorities to have regard to the proper planning and development of the area (not merely the site or planning unit).
What therefore was the nature and extent of the development in respect of which permission was sought in 1980? The only document available to assist in this task of construction is the grant of permission itself. The principal purpose of the permission is to extract sand and gravel, the ancillary restorative works were to be the subject of agreement, and a comprehensive rehabilitation programme for both the existing sandpit and the proposed extension was to have been submitted to the Planning Authority prior to the commencement of the development. In my judgment any such programme would have had to incorporate those conditions in the planning permission expressly or impliedly referable to rehabilitation or restoration. The waste materials that would go into backfilling the excavated areas are those referred to in Condition 2 of the permission. The expression "waste materials" occurs twice in that condition and in my judgment bears the same meaning in each instance, unless otherwise appearing in the text or otherwise so declared (and it is not). The waste materials like the topsoil were not the sand and gravel which had been extracted to be taken away from the site but those elements of the stripped back overburden or as were found in the sand and gravel (e.g. boulders, shale or the detritus of ages past) which were not the product for the extraction of which permission had been granted. The planning permission is to be read as a whole. All parties agreed that the principles to be applied in the construction of planning permission are those stated by McCarthy J. in XJS Investments Ltd. -v- Dun Laoghaire Corporation [1987] ILRM 659 as follows:
"Certain principles may be stated in relation to the true construction of planning documents:
(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the canons of construction applicable to such material
(b) They are to be construed in their ordinary meaning as it would be understood by the members of the
public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicates some other meaning..."
(These principles have been approved and applied subsequently in a number of cases including Kenny -v An Bord Pleanála (2001] I IR 545 and Westport -v Golden [2002] I ILRM 439) .
Applying those principles to Condition 15 of the planning permission it is clear that the intention and effect of such, taken in conjunction with the other conditions, was to require the reinstatement of the sand and gravel pit on an incremental basis (because of Condition 8) or at worst from an amenity environmental point of view, at the end of the three year life of the permission, or even a further remove at the end of the five year period - for no extension for the life of the permission was sought or granted - as closely as possible to the contours of the original ground. The nature and extent of the reinstatement is clearly specified, what was left to be agreed between the developer and the Planning Authority were (i) the date of commencement of the restoration works, (ii) the phasing of such works, (iii) the sections to be reinstated, (iv) the final contours and levels to which the restoration shall be carried out. The expression "as closely as possible" provides for a situation where the permission is implemented. It is not true to aver that the restoration of the land was to be to its original contours, it was to be as closely as possible.
I accept the submission of Mr. Galligan, SC, that Condition 15 is such as is envisaged by Section 2(2)(b)(ii) of the Local Government (Planning and Development) Act, 1982 but I reject the submission that the only interpretation of Condition 15 reasonably open is that it requires the restoration of the lands using waste materials imported onto the lands. Furthermore I do not accept that because the permission covered both the original sandpit "Area 1", and "Area 2" that there was such necessity to import waste material at all or at the rate of 244,000 tonnes maximum per year of builders' rubble into what is now and is intended to continue to be a landfill site.
In my judgment the submission on behalf of the Applicants advocated by Mr. James Connolly, SC, is correct when he says that the appropriate starting point in a consideration of what was the primary object of the works originally permitted under 1982 permission. His submission was that:
'It is clear that what was intended was an extension of sandpit operation; certainly neither the Planning Authority nor the public at large considered a "primary object" or for that matter any ancillary object involving recovery of waste or operating as a landfill site. This approach was taken in Lennon –v- Kingdom Plant Hire (unreported High Court Judgment on 13th December 1991) where Morris J. (as he then was) held that the primary object was of extensive excavation of rock was not to improve the land but to gather boulders to enable the Respondents to fulfil their contract to provide boulders for the County Council's coastal protection systems. On that basis he held that the works did not constitute land reclamation so as to gain the benefit of the exemption otherwise available under the Planning Regulations. He described the factors to be taken into account in determining what is at issue in the land reclamation, as such:
"Every case must be considered on its own merits. Matters which should be taken into account would include the primary object in carrying out the work, the depth and the area of any excavation which was bona fide land reclamation requires, the area in which it is proposed to carry out the work and the type of terrain on which the work is to be done."
This matter was further dealt with in a slightly different fashion in Butler -v- Dublin Corporation [1999] I IR 565, by Keane J. (as he then was) as expressed at page 593:
"Although the expression "intensification of use" is not to be found in our Planning Code or its English equivalent, the legislatures in both jurisdictions must have envisaged that a particular use could be so altered in character by the volume of activities or operations being carried on that the original use must be regarded as having been materially changed. One man digging up stones in a field and carrying them away in a wheelbarrow for a few hours each week may be succeeded by a fleet of bulldozers, JCBs and lorries extracting and carrying away huge volumes of rock from the same site. The use of in both instances may properly be described as "quarrying" but that its intensification to a particular degree may constitute a material change in the original use is, I think, not merely borne out by the authorities to which I have referred, but is consistent with the underlying policy of the Act of 1963 and the amending legislation of ensuring that significant changes in the physical characteristics of the environment are subjected to Planning control."
Previously, judicial authorities appear to have distinguished between intensification of use as opposed to works but this distinction appears to have been abandoned in the Supreme Court of Kildare County Council -v- Goode [1999] 2 IR 495. (In particular the elements of the judgment of Barron J. at 505 and 506). From this it appears that where the intensification can be objectively categorised as an intention to carry on a different development, that such different development will require a fresh application for Planning Permission.
The test to be applied is, as to whether or not, what is being carried on (in the instant case the operation of a landfill site) is a different development from that which was originally intended in the way of restoration work under Condition 15 of a planning permission (which was originally to have a development life of three years and related to an extension of an existing sandpit operation). Costello J. (as he then was) in Patterson -v- Murphy (1978) ILRM 85, page 105, found that the object of the operations in, that case was to produce a different product to that which had been produced prior to the coming into force of the plan acts. In that case four inch stone was being produced which was different to shale and it was used for a different purpose in the building industry and also fetched a different price. The Court also took account of the fact that the raw material in that case was being extracted by blasting on a regular basis and large crushing and screening was being used to produce stones of the correct dimensions which involved the use of ancillary equipment and a larger labour force. Likewise in Westmeath County Council -v- Quirke & Sons (unreported judgment of Budd J. 23rd May 1996) particularly those passages at pages 37 and 160, the Court took account of the fact that there was a change of production from quarry run rock to crushed stone. In that case the Court took particular notice of the fact that there was an increase in the volume and size of trucks and machinery and traffic between the introduction of the Planning Acts and the date on which the matter came before the Court. The Court observed that dust and noise levels had greatly increased and there were massive stockpiles and machinery in the vicinity of the quarry. Again in Dublin County Council -v Sellwood Quarries Limited, a judgment of Gannon J. [1981] ILRM 23, the Court took account of the fact that there was a change from the extraction of sand and gravel to rock extraction. In Molumby -v- Kearns (unreported judgment of O'Sullivan J. 19th January 1999) it was held that an increase in the volume of heavy commercial traffic at an industrial estate per se amounted to an intensification of use. Other cases in this line of authority are Dublin County Council -v- Tallaght Block Company Limited (unreported judgment of the Supreme Court 17th May 1983, the original decision of Costello J. being in the [1982] ILRM 534 and Wexford County Council –v- John A. Wood Limited (1999) I IR 556.
In Galway County Council -v- Lackragh Rock (1985)IR 120 the Local Planning Authority in injunction proceedings pointed to the fact that the scale of the Respondents operations had increased considerably and that the plant and machinery had also changed and that they were manufacturing a different type of product, namely ground limestone. Barron J. held that to prove intensification activity had amounted to a change of use which was material, the council had to establish that it had given rise to fresh planning implications:
"The importance of this principle 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. In the present case, there is little doubt but that the site is being used quite differently from the manner in which it was used at the appointed day."
He went on to lay down the following test to be applied:
"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."
A refinement by contrast to this test is to be found in the subsequent decision of Monaghan County Council –v- Brogan (1987) I IR 333 Keane J. (as he then was) did not totally agree with the test of Barron J. on the grounds that it relegated the role of the judge and elevated the Planning Authority so that it appeared to make it (the Planning Authority) the arbiter of what constituted development. In the Monaghan County Council case the scale of slaughtering activity had been substantially increased by the Respondent from that previously operated under the Planning Acts and Keane J. stated on this aspect of the case:
"It is true that neither of the planning officers in the present case referred to in their evidence to any different matters that they would have 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 the land when an application is made under Section 27. No doubt, as Lord Parker CJ pointed out in East Barnet UDC –v- British Transport Commission "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 section 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."
Both of these cases are involved contrasting pre Planning Acts development with later extra or more intensive activities, whereas in the instant case the Court is being asked to contrast what was originally envisaged at the time of the planning permission granted in 1982 with what is now being carried on in the way of a different type of development on the site. At any event, it was submitted that the different and, for that matter, more intense activity now being carried on at the site is materially different from a planning perspective; and that has been clearly established in the affidavit, to my satisfaction, of Mr. Bernard McHugh filed on behalf of the Applicants in the present case.
In my judgment while there is an argument to be made that intensification of use 'per se cannot amount to a material change of use, the extra works and volume of traffic in the operation of an essentially different type of business are conclusive in the instant case in showing that different types of works in any event are being carried out to that which originally would have been envisaged at the time of the granting of the planning permission in 1982.'
The submissions of the Respondent were that 'although there is no Irish authority on the point, there are a number of English authorities which support the proposition that no planning permission is required to carry out development required by a restoration condition attached to a planning permission for quarrying operations.'
The first authority cited was that of R –v- Derbyshire County Council, ex parte North East Derbyshire District Council (1977) 77 LGR 389,(1980) JPL 398, the County Council had granted planning permission in 1969 to win and work fire clays and other minerals by open cast means on a site of 130 acres. Condition 4 of the planning permission (1980) required the site to be backfilled, after completion of working, with stored soil and "such quantity of fill as may be necessary to make good former levels". By condition 8, the working of the site was to be carried out in successive phases of six acres each, the restoration of each phase being completed and the land concerned being restored to agricultural use when the next phase began. Condition 8 was not complied with and, although some backfilling did take place, when the excavation ceased, 21 acres remained unfilled. In 1978, another company purchased the land and was granted a disposal licence to deposit various waste products including sewage sludge on the 21 acres. The District Council applied to quash the disposal licence, claiming that it should no have been issued since no planning permission existed in relation to the intended use of the land.
It was held by the Court of Appeal that Condition 4 of the planning permission contemplated and required that the site should be backfilled after the completion of the mineral excavations and that, although Condition 8 had been irremediably breached, Condition 4 was still enforceable by law and, therefore, there was no reason why the present occupier should not be entitled to comply with Condition 4 voluntarily. Bridge L.J. said:-
"If the refilling of the land is something which by law they could be required to do, I ask rhetorically: how can it be said that it is not something which they are permitted to do?"
The decision in Derbyshire was followed by McNeill J. in R -v- Surrey County Council and A & J Bull (Southern) Limited, ex parte Monk (1986) 53 P & CR 410. Planning permission was granted in 1952 for the continuation of quarrying operations subject to conditions providing for restoration of the site following completion of the quarrying. Restoration was to be carried out by filling with materials agreed by the Planning Authority to be suitable for plant growth. An application was made in 1981 for the restoration of the quarry by the tipping of commercial and industrial waste to be compacted and, in due course, covered with material capable of promoting plant growth. Referring to the judgment of Bridge L.J. in Derbyshire, O'Neill J said:-
"If a planning consent such as that which Bridge L.J. was dealing with made provision for infilling it was an inevitable consequence and undoubtedly ancillary to the main purpose of the condition that that which was to be used for fill was something which was waste material of some sort. It would be a thoroughly nonsensical conclusion if, for example, in a quarry like the present to be filled to a depth of 20 or 30 metres, expenditure had to be incurred in finding something which was not waste, that was to say had a commercial value related to the article itself and not its waste value."
Similarly, in Irlam Brick Company -v- Warrington Borough Council (1982) JPL 709, planning permission was granted to extract clay and brick, earth and materials, on condition that once extraction had ceased the site should be made available as a tip and should be filled within a reasonable time. It was held that there was an implied planning permission granted for tipping in accordance with the condition.
Accordingly it was submitted that the use of machinery and other temporary structures for the purposes of carrying out the necessary restoration works in compliance with Condition No. 15 is authorised by Condition No. 15.
Attractive though the arguments advanced for the Respondents based on those English decisions may be at first glance and may seem persuasive so the point of being conclusive, I am satisfied they are not of assistance in the instant case. They are distinguishable in two important respects from the instant case in (a) my finding in fact and in law that the proposed and existing use of the land (as a landfill site) was not the subject of the permission of 80/1332 and is not reasonably incidental either to the primary purpose of such use, for which permission was obtained, or incidental to the conditions attached thereto (b) the cases cited were of a character where enforcement proceedings could have been taken. In the instant case neither enforcement proceedings or injunctive proceedings under the Planning Acts (section 27 of the Act of 1976) were readily available as remedies due to the effluxion of time. The fact that one or more conditions in a planning permission left outstanding obligations did not per se permit of the carrying out of development of a radically different character both as to its nature and extent to purportedly discharge such obligations. This is quite clear even from the case most relied upon by the Respondent viz R -v- Surrey County Council and Anor ex parte Monk 53 P & CR 410, which determined that although a condition in a planning permission requiring works to be carried out may impliedly include permission for those works, the scope of the permission was a matter of construction, subject to the principle that the permission could not go beyond the scope of the application or matters reasonably incidental thereto. Indeed McNeill J. in his judgment at page 415 of the report records the submission of Mr. Carnwath (then of counsel, now Carnwath L.J.) that the implied permission (by Condition 3 of the 1952 permission) is a permission for the operation of restoration only and does not (and could not) include permission for the activity of waste disposal. Such to was Mr. Connolly's submission in the instant case which given the fundamental differences between the English authorities and the instant case I consider to be correct.
Considerable emphasis was put in the submissions of the Respondent of the view taken by the Planning Authority of Condition 15 and the intended development of what is a landfill site. The courts may, in many judicial review applications, quash the validity of planning permissions and have repeatedly emphasised the purpose of the Planning Acts in requiring clear notices to be made concerning intended development so as to put the public on proper notice of what was intended to be carried out in the way of development so as to allow the public an appropriate input into the planning process. (See Monaghan UDC -v- Alf-A-Bet Promotions Limited (1980) ILRM 64 and Crodaun Homes Limited -v- Kildare County Council (1983) ILRM 1. The point very fairly made in my opinion in the instant case is that no member of the public could have envisaged the present development as being countenanced under Condition 15 of the original 1982 planning permission, particularly having regard to the likely throughput of trucks as described in the affidavit of Mr. McHugh. An application for planning permission at this stage may be difficult to obtain, but that does not necessarily mean that it is not required. The development being carried on at present, if approved, could be regarded as being in breach of the Development Plan, as stated to me. The Respondent and in turn and the local authority seem to have sought to interpret the original planning permission in this particular case in a particular way which would when combined with the waste permit, effectively allow the Respondent to carry on the current activities to operate a landfill site. However, in my judgment, the fact remains that the development requires planning permission and the Applicants therefore contend that on this basis they are entitled to injunctive relief.
The present development requires planning permission and is not in conformity with the planning permission originally granted for the subject development. This type of situation was considered in a slightly different way in Morris -v- Garvey (1983) IR 319where Henchy J. stated at page 324:
"When Section 27 (2) is invoked, the High Court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations. In carrying out that function, the Court must balance the duty and benefit of the developer under the permission, as granted, against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or such like extenuating or excusing factors) before the Court should refrain from making whatever order (including an order for attachment for contempt in default of compliance) as is "necessary to ensure the development is carried out in conformity with the permission."
The construction of the terms of a planning permission is ultimately a matter for the courts. In the instant case the operations works, use and effects of the intended landfill site are a radically and different development both in nature and extent than that which could be reasonably foreseen or envisaged from that to "extend existing sandpit into adjoining field" in 1980/1332.
I accept the Respondent's submission that a planning permission enures for the benefit of the land - such proposition was not disputed by the Applicants, but this means no more or no less than that the planning permission, with all its terms and conditions advantages and disadvantages and limitations, is available to the land and is not a personal grant, and unlike a pre 1963 Act user cannot be abandoned. It, in a colloquial sense, becomes 'part of the title' hence the necessity of its objective construction. Despite the several arguments adduced on behalf of the Respondents referable to exempt development status of the operations, use and works already carried out and continuing to be carried out I am wholly unconvinced thereby, the spirit as well as the letter of the law is to be observed. Notwithstanding whatever advice was sought or acted upon by the Respondent and the attitude of the Planning Authority, I am satisfied that the development undertaken to date and to be continued as averred to by the Respondents, under the guise of compliance with Condition 15 of the planning permission 80/1332 is not exempted development. In my judgment the averments in this regard made by Mr. Bernard McHugh on behalf of the Applicant are substantially in accordance with the true legal position. In the case of exempted development - the burden of proof of entitlement rests on the Respondent.
Even if the works consisting of or incidental to the carrying out of the development referred to in section 54(4)(a) of the Waste Management Act 1986 for the purpose of giving effect to a condition attached to a licence granted by the Environmental Protection Agency is exempted development: Within the concept of development is both that of use and works, the latter as defined in relation to land, does not include the use of the land by the carrying out of any works thereon. The distinction between use and works (considered by Finlay P. In claim of Viscount Securities Limited -v- Dublin County Council (1978) 112 ILTR 17) is of importance in that while certain limited works as envisaged specifically may be exempt in certain circumstances - such does not include use. It is the use now being clearly made and intended to be continued by the Respondents that has caused the Applicants to move.
I was informed by Mr. Galligan in the course of the hearing that a planning application was made for the extension of a sand and gravel pit but this operation did not take place as the application was withdrawn in March 2002. In June 2000 the local authority issued a permit which was not acted upon, it had a three year life and was not referable to the type of material now being brought on site.
On 27th July 2002 a waste licence was granted to the Respondents and it is such that is in fact being used in this instance to cover the new status as arising from Condition 15 and also given grounds for exempted development. Infrastructural works began in October 2002 and the pre litigation letter handed into court is dated 8th April 2002. Notwithstanding this letter and the institution of proceedings on 31 March, 2003, giving the Respondent a reasonable time within which to apply for planning permission or retention permission (if that was considered appropriate) it did not do so but proceeded to accept deposition on the lands on 23rd September, 2003. The Respondent has, on the affidavit evidence, spent approximately €1.2 million on both works, operations and machinery on site and complains that the Applicants should be denied relief on the basis of having delayed taking proceedings. I am satisfied from paragraph (11) of the affidavit of Maurice Mason sworn on 24th November, 2003 that while there may have been some possible element of delay, the evidence when viewed as a whole is not such as to disentitle the Applicants to relief. They did not wait until expenditure was incurred by the Respondents to make their concerns known and in fact, indeed before the use complained of was undertaken, their solicitors wrote to the Respondents. In this regard the very detailed review of the many decided cases under Section 27 of the Local Government (Planning and Development) Act 1976 in Leen -v- Aer Rianta cpt unreported, McKechnie J. 31st July 2003) is of assistance. In the course of his judgment, having referred to the conduct impugned in Maurice –v- Garvey he stated:-
"22. Although the contextual circumstances in which Mr. Justice Henchy made the above mentioned remarks must be noted, nonetheless there is no doubt that this quoted part of his judgment has been repeatedly followed in later cases both in this court and in the Supreme Court and in many respects has been treated as constituting principles of general application. Even within such principles, however, it is quite clear that the Supreme Court was endorsing the existence of a discretion under section 27, or as of now section 160, as it illustrated certain examples which if existing would justify the Court in refusing relief even though it was satisfied that an authorised development or use was in being. The Learned Supreme Court Judge included in these examples a situation where an order would cause gross and disproportionate hardship. In addition, where, "such like extenuating or excusing factors" existed, similar considerations would apply. It seems, therefore, quite clear that the learned judge did not intend these illustrations to be exhaustive, as every court must decide each case on the individual facts and circumstances surrounding it."
I happily adopt the foregoing passage and accordingly, in my judgment, the Plaintiffs are entitled to orders in the present case in the terms of paragraphs (a), (b) and (c) of the Notice of Motion so however that there shall be a stay on the orders for 2 months from today's day and that the hours of opening of the landfill site and the use and operation of machinery therein be confined to 8:00 a.m. to 6:00 p.m. Monday to Friday inclusive (excluding Bank Holiday and National holidays) and between the hours of 8:00 a.m. and 2:00 p.m. on Saturday and that the like hours apply to the bringing on to the site of any materials such as were referred to during the course of this hearing.
CONCLUSION OF JUDGMENT
