Meath County Council -v- Sheils: High Court. Judgment delivered by Mr Justice Hedigan on November 13th, 2008
The intensification of quarrying at a quarry in Co Meath, including the use of blasting, constituted unauthorised development within the meaning of the Planning and Development Act 2000 and the applicant, Meath County Council, was entitled to orders restraining the respondent from continuing, prohibiting any intensification of the work, and directing the removal of machinery from the site.
The case concerned a stone quarry in Slane, Co Meath, where quarrying had first begun in the late 19th century and continued intermittently until it was bought by the present owner, the respondent, Patrick Sheils, in 2004. For the remainder of that year the operation of the quarry was small, and in December he applied to register it in accordance with Section 261 of the Planning and Development Act 2000. There was a factual dispute concerning the details submitted on the registration documentation.
In June 2005 an engineer with the county council visited the site and reported that it was a small-scale development, with no evidence of significant intensive quarrying operations.
From February 2006 there were numerous complaints made to the county council by local residents relating to the intensity of the quarrying, and including complaints about long hours, dust, noise and explosions.
An executive planner visited the site on behalf of the county council and noted a number of machines in operation, a portacabin and a number of vehicles entering and leaving. She concluded there had been an intensification of operations, and the county council sent a warning letter to the owner.
This planner also reported that in her opinion the quarrying activities now being carried out constituted an intensification that required planning permission. The council wrote to the respondent calling on him to cease.
He responded that he would continue in accordance with the details on the registration forms he had submitted. He refused to give copies of a log-book and blast records, and the council sought and was granted an order by the District Court requiring him to hand them over. These showed an average of 221 loads a week being excavated and transported between January 2006 and February 2007.
The dispute about the registration form was a central part of the hearing. Two versions of the second page were submitted to the court. The county council's version stated the site to be 3.46 hectares in area, and stated that the expected traffic would range from 0 to 100 loads a week, with no emissions, as the "operation is small and confined".
Mr Shiels's version stated that the site was 4.46 hectares in area, and, relating to emissions, "occasional blasting takes place, this dependent on the hardness of the rock". In relation to traffic it stated that this could be up to 200 loads a day or 1,400 a week.
Mr Sheils said that the council's version of the form was an earlier, draft version that was submitted in error by his sister in his absence, and that he later submitted the correct form.
The council alleged that Mr Sheils's version of the form was forged, and was changed to reflect the increased volume of output. Only the first page of its version was stamped, while the second page of Mr Sheils's was stamped.
It commissioned a forensic scientist to examine this stamp, and he concluded that there was "conclusive evidence" that this stamp was taken from the council's version and placed on Mr Sheils's version, most likely by "composite photocopy process".
The council contended that there had been a material change in the use of the land, amounting to unauthorised development. This included the use of an increased area for excavation, major changes in the production method, with the use of blasting, and an increase in the number of loads of up to 60 on some days.
Mr Sheils contended that the quarry had been in use for 100 years, and that the increase in the number of loads did not constitute a change of use.
Mr Justice Hedigan examined the relevant law, referring to the questions outlined in the judgment of Ms Justice Finlay Geoghegan in Roadstone Provinces Ltd -v- An Bord Pleanála .
In relation to whether there had been a change in use of the land, he referred to the first engineer's report, which stated that the operation was "small and confined".
He then turned to the evidence of the respondent concerning the registration form, which gave rise to "the gravest concern".
"It seems to me that there exist grounds to suspect that a serious, determined, carefully planned and carefully executed effort was made to subvert the planning process by altering or forging an official form subsequent to its original submission. I will refer the papers in this matter to the Director of Public Prosecutions with a view to his consideration of criminal proceedings," he said.
He rejected Mr Sheils's evidence on the form, and held that the council's version was the correct one. He concluded that the threefold increase in output, the significant change in production methods used and the increase in the area quarried, all amounted to a "classic case of intensification" and was a change in the use of land.
Turning to whether this change was "material" he said this must be considered in the context of the planning and development considerations for the area.
Up to 2004 there had been no complaints about the operation of the quarry. The intensification occurred over a two-year period, after at least 50 years of minimal activities. The change was "material" in that "development" within the meaning of the Planning and Development Act 2000 had taken place. It was also unauthorised, and the court had jurisdiction to grant the reliefs sought.
This discretion should not be exercised lightly, and the duty and benefit of the developer must be balanced against the environmental and ecological rights and amenities of the public, present and future.
He considered the conduct of the respondent in this context, and pointed out that it appeared he had fabricated evidence on at least one occasion in the course of the present proceedings, that is the second page of the registration form.
He may have fabricated a letter from the local residents' association, which he claimed was used to insult his political sensitivities. He had also refused to provide documents to the council, forcing it to go to court.
Mr Sheils had claimed his business would be unsustainable if he was restricted to the 20 loads a day stated on the council's registration form. However, Mr Justice Hedigan concluded that this would merely restore the quarry's operation to its pre-2004 level, and would not have a "devastating" or "destructive" effect on the business.
In the light of all this, and in particular in the light of the mala fides (bad faith) of the respondent, he was granting the council the reliefs it sought.
The full judgment is on www.courts.ie
Pat Butler SC and Tom Clarke BL, instructed by Regan McEntee, Trim, for the applicant; John Aylmer SC and Oisin Collins BL, instructed by G Traynor and Co, Dundalk, for the respondent