Waterford County Council (applicant) v John A. Wood Ltd (respondent).
Local Government - Planning and development - Whether works required planning permission - Whether a continuation of works already in being on the date appointed under the Act - Local Government (Planning and Development) Act, section 24.
Practice and Procedure - Case involving novel questions of law and complex issues of fact - Whether suitable for determination in summary proceedings - Local Government (Planning and Development) Act, section 27.
The Supreme Court (The Chief Justice Mr Justice Hamilton, Mr Justice O'Flaherty and Mr Justice Murphy); judgment delivered 29 October 1998.
Section 24 of the Local Government (Planning and Development) Act 1963 must be interpreted to permit the continuation to completion of works which commenced prior to the date appointed in the Act, i.e. 1 October 1964. This required an examination of all of the circumstances in order to ascertain what was or might reasonably have been anticipated at the appointed date as having been involved in the works then taking place. The Supreme Court so held in declaring that the works carried out by the respondent required planning permission. The crucial factor was that the respondent controlled only eight acres in 1964. The quarrying was now being carried out on a much larger area of land, purchased in 1986. No-one had envisaged in 1964 that the deposit of limestone extended into these lands or that these lands would be acquired by the respondent. Therefore the present operations could not be said to have been anticipated on the appointed date as arising out of the works then taking place.
John Gallagher SC and Martin Nolan BL for the applicant; James Macken SC and David R. Kennedy BL for the respondent.
Mr Justice Murphy said that by a written agreement in 1952, one Mr Richard Looby granted a licence over approximately eight acres of land ("the original Looby lands") in Kilgrainey, County Waterford, to Agricultural Limestone Ltd to "dig, process, remove and carry away limestone." Agricultural Limestone Ltd was taken over by the respondent in 1969. In 1972, Mr Looby demised a further 36 acres of land to the respondent ("the additional Looby lands"). In 1986, the respondent purchased a further plot of 96 acres in the same townland from a Mr Doyle ("the Doyle lands"). Only 40 acres of this was suitable for limestone quarrying.
It was common case that on 1 October 1964, the respondent was quarrying the original Looby lands and that after the acquisition of the additional lands in 1972, the respondent extracted limestone without any apparent objection from the planning authority. It was only when the respondent commenced work in 1995 on the Doyle lands that the applicant brought proceedings under section 27 of the Local Government (Planning and Development) Act 1976. The Circuit Court refused to grant an injunction under section 27. That decision was appealed to the High Court and the High Court stated a question to the Supreme Court as to the extent to which development and more particularly "works" commenced prior to 1 October 1964 is excluded from the scope of the Local Government (Planning and Development) Act 1963 by virtue of section 24 thereof. In other words, the issue for determination was whether the operations being carried out by the respondent in the Doyle lands was a development which required planning permission.
Mr Justice Murphy said that the physical features and the boundaries of the lands were material partly because disputes in relation thereto might have brought the matter to the attention of the planning authority and partly because those boundaries might be of relevance in answering the question posed by the High Court.
The lands capable of being quarried were bounded to the north by the White Church Road and to the south by the Canty Road. The Doyle lands were separated from the others by a boithrin. This had been the subject of a dispute with locals as to the existence of a public right of way; this dispute had been settled. It was also relevant that the seam of limestone in the Looby lands extended for a distance of some six miles. Mr Justice Murphy said that the issue for determination was the proper interpretation of section 24 of the 1963 Act which provides that planning permission is required "in respect of any development of land, being neither exempted development nor development commenced before the appointed day [1 October 1964]".
"Development" is defined in section 3 as "the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land." "Works" is defined in section 2 as "any act, or operation of construction, excavation, demolition, extension, alteration, repair or renewal."
The respondent argued firstly that quarrying of the seam of limestone having commenced before and continuing at the appointed day there was no obligation to obtain planning permission for the continuation of those works even if they were to continue for many years and over a very substantial area. Secondly, the respondent argued that it was entitled to continue works which were a natural and logical extension of the development which existed before the appointed day. In support of this argument, the respondent referred to the views expressed by the late Mr Justice Edward Walsh in his book on planning law but authored while he was a senior counsel. In his view, the apparent change of use of the land surface as the extraction works progressed should be disregarded. However, the author had stated that some limitation must be imposed on the extent to which works that had started might be continued. He suggested that the deposit being worked must be the same deposit; that there could be no leapfrogging over major roads, rivers or other developments so as to reach what was a new seam. There could be no substantial intensification of user without permission being obtained.
The applicant submitted that quarrying operations in existence on the appointed day could not be continued at all without obtaining planning permission. Every quarrying operation and certainly every lateral extension of a quarry, would appear to involve a material change of use of the surface area. In this case, the change was from farming to excavation works.
Mr Justice Murphy rejected the arguments of both parties, saying that neither represented a proper interpretation of section 24 of the Act of 1963 when construed within the general framework of that Act. If section 24 had not excluded existing uses and works from the new planning code, serious and perhaps unconstitutional injustice might have been imposed on those who had invested time, money and resources in such developments. Section 24 expressly excludes certain works from the necessity of obtaining permission, and "works" includes "any act or operation of . . . excavation". That necessarily permits the continuation of such works even where they involve a material change in the user of adjoining grounds. On the other hand, Mr Justice Murphy said that it was equally clear that the right to continue works commenced before the appointed day did not give to the developer the unrestricted right to engage in activities of the nature commenced before the appointed date. The section merely permitted the continuation to completion of the particular works commenced before the appointed day at an identified location. The question posed by the High Court required the examination of all of the established facts to ascertain what was or might reasonably have been anticipated at the appointed date as having been involved in the works then taking place.
Mr Justice Murphy said that the factors which were of importance would vary from case to case. In the present case, some importance should be attached to the roadways which bounded on the properties. Some importance should also be attached to the boithrin. The fact that the limestone deposit extended into the Doyle lands was of very great significance. However, nobody viewing the works in progress in October 1964 would have anticipated that they might eventually extend to quarrying operations at a distance of five or six miles from the operations then being carried on.
The most significant fact in this case was the extent of the property under the control of the respondent on the appointed date. It had rights only over eight acres. No evidence was produced to show that the respondent was aware of the extent of the deposits of which its quarry formed a part. While it was reasonable to assume that as the quarry became exhausted, the respondent would examine the possibility of discovering and acquiring rights in deposits in adjoining lands, it was not proper to assume that limestone of the appropriate quality would be discovered in lands which could be acquired on acceptable terms by the respondent. In fact, the respondent was compelled to purchased 50 additional acres of land which it did not want. The quarrying works on the Doyle lands were therefore a distinct operation or at the very least a different phase from the works being carried on the appointed day. They were not a continuation of the original operations and did not fall within the excluding or exempting provisions contained in section 24 and accordingly they required planning permission.
The works on the additional Looby lands had been completed and no question of an injunction arose, but had the question arisen, those operations would also have been declared to have required planning permission.
It was also clear with the benefit of hindsight that the proceedings should not have been instituted under section 27 of the 1976 Act since that section was intended as a "fire brigade" section to deal with urgent situations: Dublin County Council v Kirby [1985] ILRM 325, Dublin Corporation v McGowan [1993] 1 IR 405, Mahon v Butler [1998] 1 ILRM 284. It was now clear that the matters in issue involved novel questions of law and complex questions of fact which could not be dealt with readily in summary proceedings. The High Court had recognised that special difficulties had arisen in this case: those difficulties should be borne in mind where similar applications were being contemplated.
Solicitors: Lanigan & Curran (Dungarvan) for the applicant; Babbington Clarke & Mooney (Cork) for the respondent.
