The High Court 

Dolan v Cooke

1999/83 MCA 

20 January 2000 

MORRIS J: 

This matter comes before the Court as an Application under Section 27 of the Local Government (Planning and Development) Act 1976 as inserted by Section 19(4)(g) of the Local Government (Planning and Development Act) 1992. 

The facts of the case which are not in issue between the Parties may be summarised as follows: 

The Applicants are farmers and reside with their family at Drumbawn Farm, Newtownmountkennedy, Co Wicklow. The Respondent is the owner of a farm of approximately 300 acres which adjoins the Applicant's farm on two sides. In 1991 the Respondent acquired approximately 45 acres from Coillte (hereinafter referred to as "The Coillte lands"). This lands adjoins the Applicant's lands on the southern side and it has a common boundary which comprises a hedge or bank with a pole and wire fence erected thereon. 

On the 7 September 1990 the Respondent obtained from the Wicklow County Council a planning permission for the construction of a house and new road and entrance on to his lands. This planning permission envisaged that the entrance road would cross the Coillte lands. However, one of the conditions attaching to the permission was that the proposed new road would be constructed at a distance of not less than 30 metres from the Applicant's lands. 

This planning permission lapsed due to non implementation but on the 4 September 1999 the Applicants became aware of the fact that the Respondent was engaged in work consistent with road making activities at a point adjacent to their boundary with the Coillte lands at a point at which, if the planning permission was still valid, the road making activities would not have been authorised. They accordingly, immediately applied to the court for an order restraining these activities. On the 7 September 1999 that application was compromised by an undertaking by the Respondents to discontinue this activity pending the hearing of the matter. That undertaking has been honoured in full. 

The Applicant's complaints include complaints that the road making activities engaged in by the Respondent have (a) disturbed the drainage on their lands, (b) destabilised and resulted in the demolition, at least in part, of part of the common bank between their respective properties, (c) deprived the fencing of the support which it had from the bank and has become as a result unstable, (d) disturbed the trees in the area. 

In response to these complaints the Respondent denies the allegations of damage to the fencing, banks and drainage and the other complaints made by the Applicants and he claims that he is entitled to carry on the work on the grounds that it is an exempted development within the meaning of the Planning Acts. He claims that the Coillte lands are very boggy and wet and that he has invested significantly in their improvement. He says that from time to time the lands become so wet that they are impassable and on these occasions he has to travel some miles around by the main road to reach the far side of his lands. The Respondent says that to overcome this problem on the occasion complained of he spread spoil, clay and earth which he had excavated some years ago so as to lay a rough road or path which would enable him to pass across his lands. The area at which this soil is laid has been shown marked X/Y on the map exhibited. The Respondent says that this work is an exempted development for which no planning permission is required. 

There are two statutory provisions to which reference must now be made. 

The first is Section 4(1)(a) of the 1963 Act. 

The second is Part 3 of the Local Government (Planning and Development) Regulations 1994. 

With regard to Section 4(1)(a) of the 1963 Act this provides: 

"4(1) The following shall be exempted developments for the purposes of this Act. 

(a) Development consisting of the use of any land for the purpose of agriculture or forestry (including a fore station) . . ." 

The use which the Respondents made of his lands on this occasion, according to his own Affidavit, was the dumping and spreading of clay and spoil which he had previously excavated with the overall purpose of creating a path or road. This would provide him with a more convenient way of accessing his lands and avoid his having to travel around by main road. The issue therefore is whether this is to be regarded as a use of lands "for the purpose of agriculture or fishery (including afforestation)." In my view it clearly is not. There is no doubt that it is a development within the meaning of the Section and may and probably will ultimately facilitate the working of the lands. However, if one refers to the definition of "agriculture" at Section 2(1) of the 1963 Act one finds a comprehensive description of the activities contemplated by the word. They include "horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock . . ." 

I am in no doubt that the laying of a path or road, all be it for the ultimate benefit of the lands, falls outside this definition. 

I am confirmed in this view by the view of Costello P when he considered Irish Wild Bird Conservancy and Commissioners of the Office of Public Works v Clonakilty Golf and Country Club Limited and others (unreported) in which the work contemplated was the repairing of the banks of a stream, cleaning of drains and repairing of the flap gate on the causeway. Costello P held that this was not a development consisting of the use of any land for the purpose of agriculture and was not an exempted development. 

In my view the mere fact that the work in question may eventually benefit and enhance the lands and make them more suitable and more convenient for use for agricultural purposes does not in itself render the works a "use of land for the purposes of agriculture or forestry" for the purposes of Section 4 of the Act. 

Accordingly since the onus is on the Respondent to establish to the satisfaction of the court that he is entitled to the benefit of the statutory, exemption claimed, I am of the view that he has failed to do so. 

Secondly with regard to Part 3 of the Local Government (Planning and Development) Regulations 1994:- 

Article 9 provides 

9(1)(a) 

Subject to paragraph (b) and article 10 development of a class specified in column 1 of Part 1 of the Second Schedule shall be exempted development for the purposes of the Acts, provided that such development complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 1. 

Subsection (3) provides: 

(3) Subject to article 10, in areas other than county boroughs, boroughs, urban districts, towns specified in the First Schedule to the Act of 1963 and the excluded areas as defined in section 9 of the Local Government (Reorganisation) Act, 1985 development of a class specified in column 1 of Part III of the Second Schedule shall be exempted development for the purposes of the Acts, provided that such development complies with the conditions and limitations specified in column 2 of the said Part III opposite the mention of that class in the said column 1." 

Article 10 is not of relevance in the circumstances of this case. 

The development to which Article 9(1)(a) refers is headed "land reclamation Class 9." It is described as "development consisting of the carrying out on land which is used only for the purpose of agriculture or forestry of any of the following works. 

(a) Field Drainage 

(b) Land Reclamation 

(c) The removal of fences 

(d) Improvement of existing fences 

(e) Improvement of hill grazing 

(f) The reclamation of exturine marsh land or callows . . ." 

I have considered the activities described by the Respondent in his Affidavit with a view to ascertaining whether they fall within the description of the works of land reclamation set out at Class 9. I am satisfied beyond any doubt that they do not. Nowhere among these activities is any reference made to the construction of a pathway or road, or to the spreading of soil. I am satisfied that insofar as field drainage is referred to this contemplates work by a landowner upon his own holding for the purpose of improving his own drainage and not interfering with the drainage of an adjoining landowner. Insofar as the removal of fences is concerned, I am satisfied that this activity cannot properly be construed as a reference to the removal of boundary fences to the detriment of adjoining landowners. 

Accordingly the Respondent has failed to satisfy me that he is entitled to an indemnity based upon the Local Government (Planning and Development) Regulations 1994. 

A secondary and subsidiary issue developed during the course of the hearing and that is the use by the Respondent of his lands for the purpose of quad sports. This recreational activity involves the hiring of vehicles, described as mini tractors, which will traverse rough terrain. In that way visitors can be brought on a tour of the Respondent's lands. These vehicles will travel at a speed of up to 20 miles an hour. They are driven by a 2 stroke engine. They are relatively noisy. 

It was part of the Applicant's case that this newly constructed road was being used and indeed may well have been constructed for the purpose of providing a path for the quad sport vehicles. At paragraph 15 of his Supplemental Affidavit the first named Applicant sought an Order "restraining the use of the Respondent's lands for or in connection with the operation of a quad biking business." 

During the course of the hearing the Respondent has given an undertaking to the court not to use any part of the Coillte lands for the purpose of his quad sports activity. For their part the Applicants are content to accept this undertaking and on the basis thereof are not proceeding with their claim for the injunction restraining the Respondent from so using his lands. I accordingly do not propose to deal with that relief. I wish to make it clear however that my decision in this regard is not to be taken at any future date as a determination of any issue between these Parties relating to the use of the Respondent's lands for quad sport activities. For the moment and for the purposes of this application only the Court is not required to deal with this issue. 

Accordingly I now pass to consider the reliefs to which the Applicants are entitled. 

I propose to make an Order in accordance with paragraph 1 of the Notice of Motion that is to say restraining the Respondent or his Servants or Agents from spreading any further soil in the area referred to in these proceedings (which I propose to define more exactly in a moment) or from removing ditches or trees in this area. I propose to make an Order requiring that the Respondent reinstate the area by the removal of the soil from this area so that it may be reinstated and restored to its original condition in as close a manner as is possible in all the circumstances. I will make an Order directing that the Respondent reinstate the banks where they have been damaged by the carrying out of this works so that they will again provide a support for fencing between the two lands and I will direct that the Respondent reinstate the fencing to the condition that it was prior to the unauthorised acts. 

I do not propose to make any Order in relation to the drainage work of which complaint has been made as I believe that that was an exempted development nor do I propose to make any Order in relation to the Applicant's complaint of damage to trees. 

I will hear Counsel as to the precise location of the area upon which the path or roadway has been constructed for the purpose of clearly identifying it on a map to be lodged with this Order.