High Court 

In Re the Local Government (Planning and Development) Act 1976 and in Re the Application of the County Council of the County of Donegal; 

The County Council of the County of Donegal v Ballantine and Another

1995/87 MCA 

20 March 1998 

MCCRACKEN J: 

These proceedings were commenced by the Applicant by a Notice of Motion dated the 20 March, 1985, the relief sought being:- 

"An Order pursuant to Section 27 of the above mentioned Act prohibiting the continuance of a development on land or the unauthorised use of lands the property of the Respondents situate at Kiltole, Convoy in the County of Donegal, which development consists of the quarrying and blasting of stone and the unauthorised use consists of the maintenance of machinery on land for the purpose of breaking and crushing stone and the use of portion of the land as an entry from the public road, by the above named Respondents Albert S Ballantine and Stanley Ballantine or any person or persons employed by them or acting on their behalf of any other person" 

By Order dated the 27 June, 1986, following oral evidence given on behalf of the parties, it was ordered:- 

"The Court doth declare that the entrance as presently located to the Respondents' lands at Kiltole Convoy in the County of Donegal is where permitted by the Applicant 

The Court doth declare that the Respondents are entitled to have and use the machinery where it is presently located 

The Court doth declare that the Respondents are entitled to use the entire of the old site to approach the unauthorised area 

And IT IS ORDERED that the Respondents and each of them their servants or agents be restrained from carrying out any quarrying at land at Kiltole in the County of Donegal other than on the site hatched and edged red on the map lodged by the Respondents with their planning application dated the 5 April 1984 in respect of which planning permission was granted on the 5 October 1984" 

It was then further ordered that the Motion be adjourned to 25 July, 1986 with liberty to apply in the interim. The matter was again heard before Mr Justice Barron on 30 July, 1986, and some further oral evidence was given. An Order was made on that day in the following terms:- 

"IT IS ORDERED that the Respondents and each of them their servants or agents be restrained for a period of three months from this date from carrying out blasting operations at lands at Kiltole Convoy in the County of Donegal other than on the area to which the planning permission dated the 5 October 1984 applies 

And the Court doth refuse to grant an injunction restraining the use of the authorised area to which the aforesaid permission applies or the remaining non-unauthorised area of the said lands for purposes ancillary to quarrying on the lands to which the said permission applies 

And the Court doth reserve the question of costs 

Liberty to apply" 

The Applicant now seeks to re-enter the 1985 Motion, and alleges that the Respondents are again engaging in unauthorised use of their lands, and indeed of further lands acquired by them since 1985, by carrying out quarrying operations. It appears that the Respondents did in fact cease blasting, but they appear to have continued their quarrying operations more or less continuously since 1985. At that time they had a planning permission in respect of part of their lands which allowed quarrying for a period of two years, but once that two year period expired they quite clearly had no planning permission and any quarrying carried out by them was an unauthorised development and/or an unauthorised use of the land. The Respondents say that the Orders made in 1985 were final Orders, and that in effect the Motion is spent, and accordingly that I have no jurisdiction to make any further Order on foot of that Motion. 

It seems to me that this objection is correct. The Motion was brought pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 as it was then in force. In fact that entire section has since been repealed and replaced by a different Section under section 19 of the Local Government (Planning and Development) Act, 1992, and if complaint is being made in relation to a development at present being carried out, it must be made under the amended section. Quite apart from that, the wording of Section 27 in the 1976 Act appears to me to make it quite clear that any application made under that section must relate to something which is being carried out on the lands at the time the application is made. Section 27(1) as it was in force in 1985 reads:- 

"Where 

(a) development of land, being development for which a permission is required under Part IV of the principal Act, is being carried out without such a permission, or 

(b) an unauthorised use is being made of the land, 

the High Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by Order prohibit the continuance of the development or unauthorised use." 

I think the only rational construction of that section is that the development or unauthorised use referred to must be one which, in the words of both sub-paragraphs (a) and (b), "is" being carried out or made. The section makes no provision for the Court to prohibit any development or unauthorised use which arises in the future. I think it is quite clear that a new Motion would be required in relation to such new development or unauthorised use. 

Furthermore, the form of the Orders made by Mr Justice Barron in 1986 appear to me to be final Orders. The first Order effectively refuses relief in relation to the entrance and the use of the machinery, but grants an injunction restraining the carrying out of quarrying on any lands to which the planning permission did not apply. That injunction is not limited in time, and is in fact still in being, and it may well be that the Respondents are in breach of it. However, that is not the basis upon which this application is being brought. The second Order then granted an injunction restraining blasting operations for a period of three months, but this is a matter in respect of which no complaint is being made now. The Court refused to restrain certain other use of the lands. The second Order did not adjourn the proceedings either generally or to any specific date, but merely gave liberty to apply. I am not at all clear why the question of costs was reserved, although it may be that it was intended that there would be liberty to apply for an Order for costs. It seems to me to be particularly relevant that the Motion was not adjourned generally with liberty to re-enter. 

My attention has been drawn to the passage in Halsbury Laws of England 4th Edition Volume 26 at paragraph 554, and I accept the principles set out therein. The paragraph reads:- 

"Liberty to apply. The circumstances or the nature of a judgment or order often render necessary subsequent applications to the Court for assistance in working out the rights declared. All orders of the Court carry with them inherent liberty to apply to the Court, and there is no need to reserve expressly such liberty in the case of orders which are not final. Where in the case of a final judgment the necessity for subsequent application is foreseen, it is usual to insert in the judgment words expressly reserving liberty to any party to apply to the Court as he may be advised. The judgment is not thereby rendered any the less final; the only effect of the declaration is to permit persons having an interest under the judgment to apply to the Court touching their interest in a summary way without again setting the case down. It does not enable the Court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances . . ." 

Probably the most frequent use of the phrase "liberty to apply" is in the case where either declarations are made or injunctions are granted. In such circumstances it is always possible that events may occur which would raise the question of whether there has or has not been a breach of the Order, or whether some event does or does not come within the declaration granted. Liberty to apply allows the parties to come back into Court and clarify the extent or application of the Order. However, in the case of an injunction, if there is a breach of that injunction, the proper procedure is not to reapply to the Court for a further injunction, but to bring proceedings for contempt or attachment. 

Finally, I should say that the Applicant has also purported to issue another Notice of Motion on 21 October, 1997, but issued in the 1985 proceedings. That Notice of Motion seeks an Order "pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 as amended by Section 19 of the Local Government (Planning and Development) Act, 1982". That of course is incorrect, as the amending Act is in 1992 and not in 1982. What in fact the Applicant is seeking is an Order under a statutory provision which did not exist at the time the proceedings were issued, which again seems to me to show the fallacy of the Applicant's argument. 

Accordingly, I will refuse to make any Order in favour of the Applicant, but of course I would make it quite clear that this is not in any way a bar to new proceedings being issued against the Respondents should the Applicant seek to do so. I should also say that in any event, as I think was acknowledged by the Applicant, there could be no Order in respect of the portion of lands which it did not occupy in 1985.