THE SUPREME COURT
Appeal No. 207/97
Hamilton CJ.
Barrington J.
Keane J.
Lynch J.
Barron J.

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1976 AS AMENDED AND EXTENDED

BETWEEN
THE COUNTY COUNCIL OF THE COUNTY OF KILDARE
APPLICANT/RESPONDENT
AND

THOMAS PETER GOODE & THERESA GOODE & GOODE CONCRETE
RESPONDENTS/APPELLANTS

[Judgments by Keane J. and Barron J.; Hamilton C.J., Barrington J. and Lynch J. agree with Keane J. and Barron J.]

JUDGMENT delivered the 18th day of May 1998, by Keane, J.

The facts in this matter, so far as relevant, are fully set out in the judgment which will be delivered by Barron J.

The case presented on behalf of the Respondents/Appellants (hereafter “the developers”) both in the High Court and in this court was founded on a distinction between what were described as “works developments” and “use

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developments”. These phrases, at least in that form, are not to be found anywhere in the relevant planning legislation, but the significance of the distinction, as it emerged from the arguments on behalf of the developers, can, I think, be shortly summarised.

There was evidence before the learned trial judge (Morris J, as he then was) from which he considered himself entitled to infer that, if the development which the applicant/respondent (hereafter “the County Council”) sought to interdict was commenced before the coming into operation of the Local Government (Planning and Development) Act 1963, it had either been abandoned or, if not abandoned, intensified to a degree which constituted in law a new development.

There is ample authority, both here and in England, for the proposition that a development, which was initiated before the relevant planning code became operative and for that reason did not require permission, may subsequently be regarded as having been abandoned, resulting in the necessity for planning permission if it is resumed : see Hartley v. Minister of Housing and Local Government & Anor. [1970] 1 QB 413 and the decision of this court in Dublin County Council v. Tallaght Block Company Limited [1982] ILRM 534. There is similarly authority for the proposition that such a development, although not abandoned in that sense, may have been intensified to a degree which necessitates permission: see Patterson v. Murphy [1978] ILRM 85. The

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developers say, however, that the lines of authority in question do not apply to a “works development” begun before the relevant planning code came into force: once begun, they claim, such a development may be continued or brought to completion after the code has come into force, unlike a “use development” which may lose its immune status because it is either abandoned or intensified.

Section 24 of the Local Government (Planning and Development) Act 1963 (hereafter “the 1963 Act”) provides that permission is required:-

“in respect of any development of land, being neither exempted development nor development commenced before the appointed day...”

“the appointed day” for the purposes of the 1963 Act was October 1st 1964. It is not in dispute that sand and gravel had been extracted from the lands in question prior to that date. That, the developers say, constituted a “works development” to which the concepts of “abandonment” and “intensification” did not apply. In support of that submission, Mr. Paul Gallagher, SC. on behalf of the developers lays understandable emphasis on the precise form of the definitions which the draftsman of the 1963 Act employed.

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“Development” is defined by s.3(l) as

“save where the context otherwise requires, 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.”

Section 2 defines “works” as including

“any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.”

While “material change in the use of” land is not further defined save negatively by the exemption of certain changes of use from the requirement to obtain permission, s.2 provides that:

‘‘ use’, in relation to land, does not include the use of the land by the carrying out of any works thereon.

The reason for the latter provision can be made clear by an example. In ordinary parlance, putting up a building on farmland hitherto used for growing crops would be treated as changing the use of the land. Since, however, the

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construction of farm buildings is, to some extent, an exempted development, the draftsman found it necessary to provide that the carrying out of works on land, by itself and of itself, was not a use of land for the purposes of the 1963 Act.

The fallacy in the submission advanced on behalf of the developers is that it assumes that the necessary consequence of these statutory provisions is that a particular series of operations must in planning terms be either a “material change in use” development or “a carrying out of works” development. But that is not so. To confine oneself to the facts of the present case, when people began to extract sand or gravel from this land before 1964 the land in question was no longer being used for agriculture, but for a form of industrial or quasi-industrial use: see the definition of “agriculture” in s.2 of the 1963 Act. However, since that process involved the “excavation” of sand or gravel from the land, it also constituted the carrying out of “works” within the meaning of s.2. Thus, applying the terminology adopted by Mr. Gallagher, this was both a “use development” and a “works development”.

Mr. Gallagher relied on the decision in In re Viscount Securities Limited (112 ILTR 17). In that case, it was held by the High Court (Finlay P as he then was) that a developer who was carrying out an extensive residential development on agricultural land in County Dublin was not deprived of his right to compensation in respect of the refusal on the ground that the

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development constituted a material change in the use of the land. (Under the compensation provisions of the 1963 Act, compensation is payable in respect of such a refusal, save where it is based on specific grounds (such as interference with amenity) or where the development would constitute “a material change in the use” of the land.) In a passage relied on by Mr. Gallagher, Finlay P said:-

“Broadly speaking, it seems to me possible to elucidate in particular from the provisions of s. 3 of the Act, which defines development, and from the general provisions of the Act two broad categories of development. One consists of works in the sense as defined of building, demolition, extension, alteration, repair or renewal and the second category being a change of user excluding such change as emanates from the act of building, demolition, extension, alteration or repair.”

However, the learned President went on to point out that these two categories were “not necessarily always exclusive and sometimes inevitably overlapping...” It should also be remembered that the case was concerned with an entirely different subject, i.e. the right of a developer refused permission on admittedly compensatable grounds to be paid such compensation and the need

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to adopt a strict and, from one point of view, somewhat artificial construction of the relevant provisions so as to avoid a conflict with the private property provisions of the Constitution: see Central Dublin Development Association Limited & Ors. v. The Attorney General 109 ILTR 69 and East Donegal Co-operative v. Attorney General [1970] IR 317.

The decision, accordingly, does not, in my view, lend any support to the argument advanced on behalf of the developers in the present case. The activities on the land before October 1st, 1964 constituted both the carrying out of works and a material change in the use of the land. Since there was clear evidence on which the learned trial judge was entitled to find that the use in question had long been abandoned before the present operations began and that, in any event, the present operations constituted a significant intensification of that use, it follows that permission was required.

As to the argument based on the lapse of five years before the present application was brought, for the reasons elaborated by Barron J in his judgment, that argument also cannot succeed.

I would dismiss the appeal.

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Hamilton C.J.
Barrington J.
Keane J.
Lynch J.
Barron J.
207/97
THE SUPREME COURT

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1976 AS AMENDED AND EXTENDED

BETWEEN
THE COUNTY COUNCIL OF THE COUNTY OF KILDARE
Applicant/Respondent
and

THOMAS P. GOODE AND TERESA GOODE AND GOODE CONCRETE
Respondents/Appellants

JUDGMENT delivered on the 18th day of May 1999 by BARRON J.

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The appellants are the owners of substantial deposits of sand and gravel at Broadleas, Ballymore Eustace, Co. Kildare. These deposits are contained in a fifty acre field (“the lands”) which the appellants acquired in 1991. Following upon this acquisition, the appellants commenced to open up workings which had previously existed on the lands and to extract the sand and gravel which lay under the topsoil.

The County Council objected to this activity and on the 30th April 1991 served a warning notice on the appellants under the provisions of s. 26 of the Local Government (Planning and Development) Amendment Act, 1976 on the appellants. The appellants replied by letter dated the 1st May 1991 which contained inter alia the following comments relating to their activity.

“(1) I am confirming the established use of a gravel pit at Broadleas, Ballymore Eustace, Co. Kildare. The essence of a gravel pit has been there and indeed used on and off since the 1930s.

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(2) I am in the process of tidying up the gravel pit at the moment so that it can become usable and manageable.

(3) If and when I extend the pit or erect offices I will of course apply for planning permission as it is necessary.

In the meantime I am preparing an application for an extension of some seven to seven and a half acres. This ought to be lodged with the Council within the next fortnight.”

On the 7th February 1992 the appellants applied for the planning permission which they had indicated. This was refused by the County Council. This refusal was accepted and all activity on the lands ceased. It started up again in April 1995. A second warning notice was served on the 6th June 1995. When this was not complied with, the County Council commenced present proceedings by way of notice of motion pursuant to the provisions of s. 27 of the 1976 Act as inserted by the 1992 Act. This notice of motion sought to restrain the use of the lands for the purposes of a sand and gravel pit and other purposes ancillary thereto.

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The application came before Morris J., as he then was, who granted the relief sought. The respondents have appealed to this Court against the grant of such relief. 

Although a number of matters were raised in the High Court and in the notice of appeal to this Court, the main submission at the hearing of this appeal related to one basic contention. It was submitted that the extraction of sand and gravel is a “works development” rather than a “use development”; that such works development had commenced before the appointed day and that it could be completed at any time without any further permission granted pursuant to the provisions of the Planning Acts.

To understand this submission, it is necessary to follow through the essential provisions of the Local Government (Planning and Development) Act, 1963. It applies to both land and buildings. This is made clear

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from the definitions of land and of structure in s. 2 of the Act. “Land” is defined as including “any structure and any land covered with water ... and, in relation to the acquisition of land, includes any interest or right in or over land...” The word “structure” is defined as meaning “any building, erection, structure, excavation, or other thing constructed, erected, or made on, in, or under any land, or any part of the structure so defined, and, where the context so admits, includes the land on, in, or under which the structure is situate.”

Permission is required for the development of land as so defined. Development is defined by s. 3 of the Act as meaning save where the context otherwise requires “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.” It is these two separate and distinct types of development

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which are referred to by counsel for the appellants as a works development or a use development respectively.

A works development must necessarily involve a use of the land, which during the time it is being carried on would almost certainly be materially different from the usual use of the land both before the works commenced and after their completion. As there would have been cases where such development would not have required permission, any such exemption would have been negatived if at the same time permission would have been required to carry out such works because they would at the same time have constituted a material change of use.

This problem was met by defining both works and use for the purposes of the Acts so as to avoid this conclusion. The definitions are as follows: “‘Use’, in relation to land, does not include the use of the land by the carrying out of any works thereon”; and “‘works’ includes any act or

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operation of construction, excavation, demolition, extension, alteration, repair or renewal”. Consequently, when land is used to carry out any works thereon such use does not have to be considered for the purposes of determining whether or not there has been a development by way of a material change of use.

In the instant case, extraction of sand and gravel is clearly “works” and it is submitted that by reason of the definition of use it is not a use of the land for the purposes of the Acts.

I have little doubt but that the expression “works” was intended to refer to activity which was carried out once and for all and was a means to an end rather than an end in itself. It was intended to apply to a temporary activity involving the erection of structures or change to or removal of existing structures. That is not the case with extraction.

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Such activity is the real and permanent activity which is intended.

Nevertheless, extractive industries have been treated in the authorities as being the carrying on of works developments - see Patterson v. Murphy [1978] ILRM 85.

There may well be a case for maintaining that mining is a use. Inclusion of the word “thereon” in the definition of “use” rather than a phrase including “on, in or under” might have suggested that mining was a use. However, as can be seen from the authorities this distinction does not seem to have been made. Such a construction has not been given to the relevant definitions and if any different interpretation is to be sought, it is a matter for the Oireachtas.

In the instant case, counsel for the appellants is seeking to establish that once works commenced on land prior to the appointed day, similar works are permissible at any time thereafter without any further

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permission. He appreciates that if those works are regarded as a use, the concepts of abandonment and intensification would defeat his claim. This is a submission which can be made only in relation to activity which commenced prior to the appointed day and the different ways in which the Act has dealt with prior use development and prior works development.

“Unauthorised use” is defined by s. 2 of the Act as meaning “in relation to land, use commenced on or after the appointed day, the change in use being a material change and being development other than development the subject of a permission granted under s. 26 of this Act or exempted development.” 

Therefore, where it is alleged that a use commenced after the appointed day is a material change requiring planning permission, it may be a defence to show that the same use was being made of the land prior to the appointed day.

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In relation to works, the issue is approached differently. 5. 24(1) provides that permission is required inter alia (a) in respect of any development of land, being neither exempted development nor development commenced before the appointed day. It is these last words which it is submitted entitle anyone who has commenced a works development before the appointed day to complete it at any time in the future without any permission being required for such completion.

As I have already indicated counsel has submitted that while the concepts of abandonment and intensification would be applicable to a p re-appointed day use, they do not apply to the case of pre-appointed day works. When the basis of the present submission is analysed, it is clear that the principles applicable to a works development commenced prior to the appointed day are not identical to those applicable to a use development in existence on the appointed day. But the principles to be

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applied are similar. Abandonment would apply to either type of development. Intensification can still be applied to a works development but in a slightly different sense. The concept which applies is that of completion of the works which commenced before the appointed day. Intensification would be one way of establishing that the works had been completed and new and further works commenced, though in a particular case it may be a speeding up in the completion of the works.

Since this submission on the part of the appellants involves proof that a works development commenced before the appointed day, it is necessary for them to show:

(1) the nature of the development;
(2) when it commenced; and
(3) what remained to be completed on the appointed day.

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These questions may be answered by the findings of the learned trial judge. These are contained in the following passage from his judgment:

“The lands in question were in the ownership of the late Mr. Frank Driver. He was a likeable but unusual person. He held strong extremist political views for which he at times was incarcerated. He appears to have cared little for the lands and in particular for the sand pit upon the lands. This sand pit comprised an area of approximately 3A acres. I am satisfied that during Mr. Driver’s ownership the sand pit was worked from time to time and that the balance of the lands were used for agricultural purposes. The use to which the sand pit was put varied significantly. This use varied from neighbours collecting an occasional load of sand and gravel with or without Mr. Driver’s consent for which they may or may not have paid.

On occasions, significant use was made of the pit the extent of which was dictated by short term local

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demand. I am satisfied from the evidence that for most of the time that Mr. Driver owned the sand pit it was overgrown with grass and weeds and was honeycombed with rabbit burrows. Access to the sand pit was obtained through a farm yard gate. I am satisfied beyond all doubt that Mr. Driver had no real commercial interest in the property. For extended periods it remained unworried and was put to agricultural use. Mr. Driver died in 1981 and after his death his representatives made no use of the sand pit. It is apparent that they regarded it as being of no importance as the advertisement for sale contains no more than a passing reference to the fact that ‘the lands are reported to have substantial deposits of sand and gravel’. The special conditions governing the sale of the land to the Respondents mentions that ‘there are reported to be sand and gravel deposits on portion of the lands in sale but vendors do not warrant or make any representation as to the quality or quantity or commercial potential or viability of same...’ and in

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the requisitions on title the vendors say that the lands are in ‘agricultural use only’ at present.

I am satisfied that this represents the extent to which the lands were used on the operative date namely 1st October 1964 and up to Mr. Driver’s death apart from a period of abandonment to which I later refer.”

The periods of abandonment to which he later referred were from 1971 to the death of Mr. Driver in 1981 and thereafter until 1991 when the pit was acquired by the appellants.

From these passages it is reasonable to infer that an inspection of the lands at the time of the sale in 1991 would not have disclosed the existence of any sand pit. This view is reinforced by the following sentence from an earlier portion of the judgment of the learned trial judge where he says:

“A sand and gravel pit was believed to have existed on the lands prior to the auction and on completion the Respondents stripped

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back the top soil and commenced to extract sand and gravel from the lands.”

As of the date of the hearing in the High Court the area of the then existing sand pit was approximately 7¼ acres.

The activity so found by the learned trial judge to have been subsisting on the appointed day would not have constituted an uncompleted development in the sense contemplated by s. 24(1) of the Act. In order to constitute such an uncompleted development involving an extractive industry, it would have been necessary to have in existence an open pit or quarry of a reasonably defined body of material to be excavated continuously until exhaustion.

An example is to be found in Waterford County Council v. John A. Wood Limited 1999 1 ILRM 217. There, a quarry was in operation on the appointed day. Dealing with what works development could be carried

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on after the appointed day without a permission under the Act Murphy J. said at p. 222 as follows:

“It seems to me to be clear that the purpose of section 24 was to permit (among other things) a developer to continue works which he had commenced before the appointed day without the necessity of seeking a planning permission which might not be forthcoming and the application for which would at the very least involve significant delay.

On the other hand it is, in my view, equally clear that the right to continue works commenced before the appointed day does not give to the developer an unrestricted right to engage in activities of the nature commenced before the relevant date. The exclusion from the operation of section 24 could not be invoked so as to confer on the particular developer a licence to carry on generally the trade or occupation in which he was engaged. The section merely permits the continuation to completion of the particular works commenced before the appointed day at an identified location.”

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In that case the development the completion of which did not require a permission was the extraction of a known deposit from a specified location. The position in the present case is quite different. It may well have been known that there was a deposit of sand and gravel under all the lands, but it is clear that extraction was haphazard. Although the deposit was available for extraction, there was no ordered activity. The legal result of this was that, if the 1963 Act had been in force, development would have taken place from time to time and any particular development would have been completed when the particular need which prompted any particular series of extraction was satisfied. This actual user of the pit was fundamentally different from a pit kept open for financial gain and always available, but with only sporadic demand. In such a case, it would be a question of fact as to what was the development and whether it had been completed.

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In my view, there is no evidence of any uncompleted development on the appointed day. If there had been, it would have been necessary to consider what further development would have been permitted without a permission pursuant to the provisions of s. 24. 

It is submitted on behalf of the respondents that once there is an uncompleted development on the appointed day, it can be completed at anytime thereafter. In support of this submission, it is contended that the situation is the same as when a permission is obtained for a development. In such case, there was originally no time limit before which the development had to commence. Likewise, there should be no limit of time within which the uncompleted development must be completed.

There is a fallacy in this submission. In the first case there was originally no limit, now five years, within which a development for which a permission had been obtained had to be commenced. It has never been

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the case that a development once commenced could be left uncompleted indefinitely. In any event in the instant case there has never been a permission. Clearly, if no effort is made to continue development, it will be reasonable at some point to regard the development as completed. In the instant case, if it is accepted that development continued until 1971, it is quite clear from the findings of the learned trial judge that it ended in 1971 or shortly thereafter and certainly, prior to the purchase of the field by the appellants.

In support of his submissions, counsel for the appellants contended that in the case of a works development, there was no place for the concepts of abandonment or intensification of use. This submission follows the submission that there is not time within which the uncompleted development must be completed. So far as intensification is concerned the submission goes contrary to the decision in Patterson v. Murphy where

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Costello J., as he then was, having accepted that he had to consider the excavations as works development continued at p. 105 as follows:

“... [I]f it appears that the scale of operations has so intensified as to render contemporary operations materially different from those carried on before the appointed day, this fact can be taken into account in considering whether what is presently being done commenced prior to the 1st October 1964.”

There must be some test to ascertain when completion takes place.

It is fundamental to counsel’s submission that there is an intention to carry out a specified project. Both concepts are relevant to a determination whether the intention remains or has been altered. Abandonment is the objective sign of a decision not to continue further with the development, whereas intensification may be the objective sign of an intention to carry out a different development. In the former case, if the intention revives, a permission will be required, whereas in the latter it is required as soon as it

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is obvious that what has been carried out is a new and different development. That is in reality the position in the instant case. The present activity bears no relationship to the activity on the appointed day.

Although I have referred inter alia to intention as controlling the nature of the uncompleted development which may proceed to completion without permission, intention per se is not a material factor. What is material is such intention as can be inferred from the activity. So in Waterford County Council v. John A. Wood Limited, it was possible to infer that the development was the extraction of the existing deposit on the applicant’s lands. A totally different situation would exist when there are plans for example to build a dozen chalets on the grounds of a hotel. At the appointed day, six had been built and the hotel owner intended to build the other six sometime in the future if demand warranted it. Such

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intention would not be sufficient to allow him to build any more chalets without obtaining permission.

Counsel for the appellant also submitted that if the works carried out by the appellant were a use, then it commenced more than five years before the County Council brought the present application and accordingly s. 27(6)(b) disentitled the County Council to an order under that section. I would reject this submission. The period of five years provided by the section is intended to give the planning authority that length of time within which to bring proceedings to restrain an unauthorised use. Where, as here, the planning authority took steps within the period and those steps brought about a cesser of the use then the five year period ceased to run and could only recommence if the use began once more. In any event this is a works development.

I would dismiss the appeal herein.