An Taisce -v- Ireland Ors Neutral citation (2010) IEHC 415. High Court Judgment was delivered on November 25th, 2011, by Mr Justice Peter Charleton.
Judgment
Planning permission issued by An Bord Pleanála was quashed on the grounds that no reasons were given for the granting of the permission for the continued use of a quarry at Lengare, Clontibret, Co Monaghan.
Background
On July 20th, 2009, An Bord Pleanála granted planning permission to John McQuade Quarries Ltd to continue to use a quarry at Lengare, subject to conditions. It did so on the basis that the quarry had begun to operate before the implementation of the 1963 Local Government Planning and Development Act in 1964 and the use had not been changed since through intensification.
A judicial review of this decision was sought on the grounds that An Bord Pleanála had failed to consider its usage before the implementation of the planning code in 1964; had failed to consider its use before 1964 and engaged in an irrational approach to its use before 1964; failed to give any reason for any decision it may have made about its pre-1964 use; and failed to give an consideration as to whether there were exceptional circumstances for its retention.
Mr Justice Charleton said ordinarily, the use of land before October 1st, 1964, was outside the scope of planning control once a building exists or a use is established before then and continues. Quarries were made an exception to that exemption in the 2000 Act, which required all quarries to be registered, subject to planning scrutiny and, where appropriate, subjected to conditions. Quarries with an extraction area of five hectares or more must submit an environmental impact assessment when applying for planning permission.
Whether the use involved is impermissible intensification of use, as opposed to a proportionate and lawful continuance of pre-planning control use, is a question for analysis by the planning authority based on case law, he said.
Mr Justice Charleton quoted section 261 of the 2000 Planning and Development Act and pointed out that under section 261(7), a planning authority, or An Bord Pleanála on appeal, was obliged to have regard to the existing use of land in respect of a quarry greater than five hectares.
“What is crucial, however, to the proper operation of the subsection, is that an unlawful use of land must be disregarded,” he said. “Regrettably, it is apparent on the face of the order that a number of significant errors were made in the decision of the board.”
Decision
The first of these was the reference in the board’s decision to “mining on this site [from] the 19th century”. Mr Justice Charleton said that mining could not be equated with quarrying, which could have significant adverse effects on the landscape, on noise and on the emission of pollutants.
The board also pointed to the registration of the quarry. However, this did not establish its pre-1964 use. If the use of a quarry was unlawful before registration, that status remained afterwards.
In addition, he said the imposition of conditions did not alter the status of a quarry. There was no need for a decision on the issue of whether there had been an irrational approach by the board to the issue of pre-1964 use.
However, he added that some observations were necessary. He referred to a report in May 2008 by an inspector from An Bord Pleanála which pointed out that An Taisce made the case that a large portion of the site was unauthorised. The inspector had said that the case had been made “quite convincingly” that the pre-1964 quarry related to only a portion of the subject’s site, so its expansion was unauthorised.
The pre-1964 use involved some blasting and the removal of stones by horse and cart. The current level of operation involved more than 40 lorry loads and 10 tractor and trailer loads of minerals being removed each working day. There had been no analysis by the board, apart from the inspector’s report, of An Taisce’s evidence of change of use through intensification.
Section 34 of the 2000 Act stated that a planning authority, or An Bord Pleanála on appeal, must give reasons for its decisions. In particular, where the report of an inspector is not accepted, the reasons for this must be stated. In this decision, the reasons were manifestly absent and there was no consideration of pre-1964 use.
The court quashed the planning permission for retention.
Full judgment is on courts.ie
For An Taisce: Casey Co
Irishh Times
www.buckplanning.ie
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