High Court of Ireland Decisions

1. The Applicants in these proceedings are residents of the Carrowbrowne area of County Galway. The Respondent is Galway Corporation, a local authority and, of course, a planning authority within its own functional area. In these proceedings the Respondent is sued as a developer of lands which are situate in the functional area of its sister local authority, namely Galway County Council.

This application concerns a dump which is situate at Headford Road, Carrowbrowne, County Galway. It has had a chequered history. In November 1995 in this Court Keane J made an order closing down part of the dump. The reason for that order being made was the failure on the part of the Respondent to comply with certain obligations imposed upon it on foot of a planning permission obtained in respect of the dump.

Thereafter an application for a fresh planning permission was made in respect of the site in suit and permission was sought to use that site as a dump for a period of five years. In the first instance that application was dealt with by the planning authority, Galway County Council, and it resulted in a permission being granted which, in turn, was appealed to An Bord Pleanala.

An Bord Pleanala conducted an oral hearing in respect of that appeal. It was conducted by an inspector appointed by the Board. In addition the Board appointed an independent assessor who is a hydrogeology expert. In due course An Bord Pleanala granted planning permission and it is that permission which is the subject matter of these proceedings.

The planning permission was dated 9 April 1997. It contains a number of very stringent conditions which I will consider presently. It is manifestly a temporary permission.

The First Schedule to the permission recites:

"Having regard to:

(a) the planning history of the site,

(b) the location in an area with a sparse settlement pattern,

(c) the location in an area which is not designated for amenity purposes in the current Galway County Development Plan,

(d) the availability of good access and proximity to the principal source of waste, and

(e) the need to provide temporary landfilling facilities while proposals for acceptable alternative facilities are developed,

it is considered that, subject to compliance with the conditions set out in the Second Schedule, the proposed operation of the landfill for a limited period not exceeding two years would not be prejudicial to public health and would not be contrary to the proper planning and development of the area.

In any event, this planning permission comes to an end in April 1999.

In the Second Schedule to that permission there are set forth 14 different conditions. The reason for each condition is also set forth in detail.

The Applicants in these proceedings contend that there have been and continue to be many breaches of the conditions upon which this permission was granted. A large list of such breaches have been contended for by the Applicants. For the purposes of this application, however, I am going to confine myself to the major ones, many of which are now admitted.

Perhaps the most important of all the conditions was that contained at No 6. It reads:

"Rehabilitation measures including site perimeter drains, roadway, fencing, flood protection bund, leachate collection treatment and pumping system, pumping main and gravity sewer to Galway Main Drainage System, entrance control and civic amenity site, maintenance building and weighbridge shall be installed and operational within a period of one year from the date of this order."

That meant that that condition had to be complied with not later than the 9 of April of this year. The condition went on:

"No landfilling shall take place on the site after one year from the date of this order unless and until all of the rehabilitation measures listed are installed and operational to the satisfaction of the planning authority."

The reason given for this condition was "in the interest of protecting the amenities of the area, and the proper planning and development of the area."

It is now accepted that many of these requirements, which were to have been complied with by April of this year, were not so complied with and, indeed, have not been met even by today.

The condition is crystal clear. In my view it was known to Galway Corporation; they fully appreciated the import of it and they ought to have ceased landfill no later than the 9 of April of this year. They did not. They now accept that they have been in breach of this condition and accept that, in so far as they have not complied with it, they have been involved in the commission of a criminal offence.

Condition No 8 recites as follows:

"(a) Within 3 months of the date of this order the developer shall agree with the planning authority a phased programme for the landfilling and landscaping of the site over the two year period."

The condition goes on to set forth what the details of the programme ought to be. It is not necessary for the purposes of this application to recite in detail the other provisions in No 8, but the reason for these are recited to be in the interests of good management of the site, to protect the amenities of the area and in the interests of visual amenity.

It is accepted by Galway Corporation that it has not, even to this day, obtained the agreement of the planning authority for the programme for landfilling and landscaping that was to have been done within three months of April 1997.

To put it in the words of the affidavit of Mr O Lochlainn, having sent details to Galway County Council on 18 June 1997, they are "still awaiting a response" in December 1998. I regret to say that that sort of approach on the part of the Respondent to these proceedings is rather indicative of their whole attitude as demonstrated from the affidavit evidence before me. I am afraid that the response of Galway Corporation leaves a very great deal to be desired. Some of it is quite alarming, particularly as it emanates from a body which is itself a planning authority in its own functional area and is responsible for the enforcement of planning control.

On the evidence before me I am satisfied that the Respondent Corporation is in serious breach of the planning laws. It is the recipient of a planning permission and it quite flagrantly has not complied with the terms of that permission.

In defence of these proceedings, as is clear from the affidavits, it criticised the Applicants, a criticism which in my view was wholly unjustified, and went on to criticise An Bord Pleanala.

In the course of the replying affidavits, one was sworn by Mr Monahan. He says - and he does not appear to be alone in this -that Galway Corporation had understood that it would take 18 months to two years, and more likely two years, to complete the works which are contemplated in condition No 6. They say that they are carrying out the works within the contemplated time frame, that is to say, Galway Corporation's time frame, and that it proved impossible for them to comply with the one-year period as arbitrarily decided by Mr Clohessy. Mr Clohessy is a member of An Bord Pleanala.

A number of features are notable in relation to this averment. First, there is a suggestion that An Bord Pleanala behaved in some arbitrary fashion in fixing the time which it fixed. If Galway Corporation were dissatisfied with the order made by An Bord Pleanala they had rights and remedies available to them, particularly if, as they allege, the decision of An Bord Pleanala was arbitrary. They chose not to exercise any of those rights but rather to operate on foot of their permission. Secondly, it shows a lack of understanding of the way in which An Bord Pleanala conducts its business.

An Bord Pleanala makes its orders as a Board. They are not made by an individual member of the Board. This is an astonishing proposition to appear in an affidavit sworn on behalf of a local authority which is itself, as I have already pointed out, a planning authority. When I put these matters to Counsel for the Respondent it is true that he disavowed, and in my view rightly disavowed, them.

The behaviour of Galway Corporation was perhaps influenced to some extent by the fact that the planning authority for the area, Galway County Council, appears to have taken no steps whatsoever to ensure compliance with the planning permission granted by An Bord Pleanala. Indeed, the silence from Galway County Council, which was its response to the documents that were sent to it in June 1997, is a silence which appears to permeate its relationship with Galway Corporation.

During the course of the hearing much time was expended in telling me of the problems which have been encountered by Galway Corporation. It seems to me that many of these problems would not have arisen if the Corporation had demonstrated greater application and planning. However, when it became clear to them that they were not going to be able to comply with condition No 6 of the planning permission, they had no lawful entitlement to continue to allow the site to be used for landfilling. To do so was to breach the terms of the permission and to involve themselves in the commission of criminal offences under the Planning Acts. It was, of course, open to them to apply for a fresh permission to Galway County Council. at that time or well in advance of April 1998 but they did not do so. Rather, they decided to continue with the breach of the condition.

When confronted with an application of this sort, the position of this Court has been authoritatively stated by the Supreme Court in Morris v Garvey [1982] ILRM, 177. I need do no more than cite a passage from the judgment of Henchy J where he says in relation to the jurisdiction which I am now exercising, which was the old section 27 jurisdiction under the 1976 Act and now section 19 of the 1992 Act:

"S 27(2) is one of the most important and least understood or used provisions of the planning code. The section expressly recognised for the first time that a member of the public (as well as the planning authority), regardless of his not satisfying any of the qualifications based on property or propinquity or the like (which are usually required to justify bringing proceedings), once he discovers that a permitted developer is not complying with, or has not complied with, the conditions of the relevant development permission, may apply in the High Court for an order compelling the developer 'to do or not to do, or to cease to do, as the case may be, anything which the court considers necessary to ensure that the development is carried out in conformity and specifies (sic) in the order'."

He goes on to say:

"The jurisdiction thus vested in the High Court is extremely wide. It recognises the fact, which has been stressed in other decisions of this Court, that in all planning matters there are three parties: the developer, the planning authority (or the Planning Board, in the case of an appeal) and the members of the public. Compliance with the statutory conditions for development is expressly recognised in s 27(2) to be the legitimate concern of any member of the public. We are all, as users or enjoyers of the environment in which we live, given a standing to go to court and to seek an order compelling those who have been given a development permission to carry out the development in accordance with the terms of that permission. And the court is given a discretion sufficiently wide to make whatever order is necessary to achieve that object."

"If s 27(2) were to be treated as merely giving the court power to interdict a continuance of the development in an unauthorised manner, the new jurisdiction given by the sub-section would be self-defeating and would run contrary to the expressed purpose of the subsection, which is 'to ensure that the development is carried out in accordance with the permission

Later in the judgment he goes on to say:

"When s 27(2) is invoked, the court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations, and in carrying out that function it 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 suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is necessary to ensure that the development is carried out in conformity with the permission

In so far as this planning permission is concerned, I have come to the conclusion that the Respondent has been guilty of a deliberate and conscious violation of its terms.

It has been said to me that the Court ought to withhold its order in this case for a number of reasons, the first of which relates to the difficulties encountered in the Corporation's endeavours to comply with the terms of the permission. In my view many of these endeavours came about late in the day. The difficulties would not have arisen had the Corporation involved itself in the exercise of planning in good time for waste disposal. In any event, when it became manifest to the Corporation that the difficulties were likely to involve it in an inability to comply with condition No 6, the course for the Corporation was clear: it should have applied for a fresh planning permission and should not have continued to operate in breach of condition No 6.

Secondly, it is said to me that an order made today will give rise to very considerable difficulties for the Corporation in complying with its statutory obligations under, for example, the waste management legislation. In my view the Corporation has nobody but itself to blame if such difficulties are created. I cannot conceive of a situation where the Court can, in order to enable Galway Corporation to comply with its statutory obligations under one piece of legislation, permit it to breach obligations imposed upon it by another piece of legislation. In particular the Court cannot permit the fulfilment of a statutory obligation, for example, under the Waste Management Act by the commission of criminal offences under the planning legislation.

Finally, it is said to me that the granting of an order by this Court will give rise to very considerable inconvenience to the citizens of Galway in disposing of their waste.

The circumstances in which the Court can withhold an order have been the subject matter of a number of judicial decisions and are set out in the various cases which have involved orders under section 27 of the Act. They include genuine mistake cases. This case is far from that. There are cases where there has been acquiescence for a long period of time on the part of applicants. That clearly cannot be the case here. An order can be withheld if the Court is satisfied that the infraction concerned is a mere triviality or technicality. Whilst that may be said of some of the complaints that are made here concerning, for example, the type of records kept at the site, it certainly cannot be said of the major infraction involved in the breach of condition No 6. It is also said that the Court can withhold its order if gross or disproportionate hardship occurs. Hardship, of course, carries little weight if it is brought about by the conscious behaviour of a respondent to such proceedings. Whilst Galway Corporation has demonstrated activity to deal with its problems in the relatively recent past, in my view it has been wholly insufficient to meet the situation with which it was con-fronted.

In this case I have come to the conclusion that there must be an order from this Court which will enforce the terms of the planning permission obtained by Galway Corporation. To refuse to grant such an order would be to dishonour the obligation imposed on the Court to enforce the planning laws. The Court has an obligation to ensure that the planning code is enforced and it must do so. The planning laws apply to everybody, including planning authorities where they act as the developer of land under the Planning Acts. In my view it would be entirely wrong for the Court to withhold an order in this case, particularly when one considers that the Respondent, which is a planning authority itself, is in gross breach of its obligations.

I have therefore come to the conclusion that this is an appropriate case in which to make an order in favour of the Applicants. Through its unlawful activity the Respondent has already succeeded in continuing to use the dump in question from April until today, a period of eight months of unlawful user and, as I have already indicated, deliberate and conscious illegality. I am therefore going to make an order forthwith restraining the use of the lands for dumping save in respect of material from Corporation refuse trucks operated by Galway Corporation. That is the only form of dumping permitted as of now and it must cease one month from today.

It follows that all landfilling operations on this site must be at an end by the 11 of January 1999. As of today, all landfilling except that from Corporation refuse dumps must cease. The reason why I grant that concession - and I do so reluctantly - is out of concern not for the Respondent, whose behaviour I have found to be unacceptable, but out of concern for the citizens of Galway who may find themselves confronted with great difficulties over the Christmas period if their refuse cannot be disposed of. It is for that reason only that I permit the continued use of this site for a period of one month from today solely and exclusively for the purpose of receiving refuse from Corporation dump trucks.. The order takes effect as of now.

An order is sought restraining the Respondent from acting in breach of the conditions of its planning permission. It seems to me that the Respondent must continue to service the dump by carrying out the obligations imposed on it under the planning permission so as to ensure that the cure is not worse than the disease.

The Applicants seek an order restraining the Respondent from using the lands until the conditions of the planning permission have first been complied with. It does not seem to me that there is any necessity for that at the moment but there will be liberty given to both sides to apply.

It seems to me that an order should be made restraining the Respondent from acting in breach of the conditions attached to Planning Permission Register Reference No 96/1487. That means that the Respondent will be obliged to provide servicing and that it will have to obtain the agreement of the planning authority for the area in very short order in respect of condition No 5 and condition No 8. In so far as it is required anywhere in the planning permission - and I have in mind in particular condition No 5 and condition No 8 - the agreement of Galway County Council will have to be procured within a month of today's date. The Respondent will continue to provide whatever servicing is required to the dump so as to minimise environmental and ecological damage.

The Applicants are entitled to their costs, including reserved costs, as against the Respondent, such costs to be taxed in default of agreement.

As to the question of a stay, I am satisfied that this is not a case in which a stay should be granted. To do so would effectively cut the ground from under the order and would permit the Respondent to continue with the activity which I have already characterised as being deliberate and conscious and unlawful. It does not seem to me that a stay would in any way meet the legitimate entitlements of the Applicants. I therefore refuse the application for a stay for the purpose of an appeal to the Supreme Court.