THE HIGH Court judicial review of State consents for the new Corrib gas pipeline route was the last outstanding legal action pursued by environmentalists and residents opposed to the project on health and safety grounds.
An Taisce has described yesterday’s settlement as a “victory”, while lead Corrib gas developer Shell EP Ireland has welcomed the clarity which this settlement . . . “provides for the project”.
However, residents of the area, such as Rossport farmers Willie and Mary Corduff, have expressed “deep disappointment” at the outcome.
“The State has admitted failures in its handling of the project, but it appears to be business as usual,” Pobal Chill Chomáin community group spokesman John Monaghan said.
“By the time promised new legislation is in place, the Corrib project will be built,” Mr Monaghan added. “It comes too late for us.”
The legal challenges taken by An Taisce and residents Monica Muller and Peter Sweetman related to the last section of the project, which is estimated to have run to €2.5 billion to date in tax-allowable costs.
In April 2003, An Bord Pleanála inspector Kevin Moore said that Ballinaboy was “the wrong location” for a project of this magnitude in a rural area.
However, that terminal has been built after protracted delays, and the offshore pipeline linking the wellhead 83km west of the Mayo coast has been laid into a landfall at Glengad.
The new pipeline route is the third such option – the first, through Rossport, having been withdrawn after the jailing of the Rossport Five and continued protests, and the second having been redrawn by the developers to avoid Rossport village.
Up to half of this second route was found to be unsafe due to proximity to housing by the planning board in 2009. It directed that the developers examine the third route up Sruwaddacon estuary, approved by it last January after another in a series of oral hearings.
There was never an overall review of the project in its entirety by State authorities, despite pleas by residents. However, former minister for energy Eamon Ryan transferred responsibility for the pipeline’s safety when built from his department to the Commission for Energy Regulation.
An Taisce’s main concern about this latest route was related to the fact that Sruwaddacon estuary is a protected habitat. However, local residents not party to the action still believe the new pipeline route is unsafe. Although it is further from some housing, they point out that it is within 700 metres of a national school at Pollathomas and close to dwellings at Glengad.
Central to the settlement is a pledge by the State to transpose European environmental law into national legislation. The State maintains its consents for the pipeline were valid.
“The critical objective for An Taisce is to ensure what happened in the Corrib project can never happen again,” An Taisce chairman Charles Stanley-Smith has said.
Shell said that the Corrib gas partners – Shell, Statoil and Vermilion – were strongly committed to completing this strategically important project which “has the potential to supply up to 60 per cent of Ireland’s natural gas needs”. The supply will be at full market price.
Irish Times
www.buckplanning.ie
Showing posts with label high court and planning. Show all posts
Showing posts with label high court and planning. Show all posts
Tuesday, 1 November 2011
Monday, 19 September 2011
Council told to return €1.1m to builder
THE HIGH Court has ruled that a building company is entitled to the return of more than €1 million paid by it to Galway County Council towards construction of a bypass that was never completed.
Mr Justice Gerard Hogan said yesterday that O’Malley Construction Ltd was entitled to a refund of €1.1 million, with interest, of money paid as part of a condition of planning permission secured by it several years ago to develop a site at Barna, west of Galway city.
The judge held that as the bypass had not been completed, the council was “not entitled to require the developer to make a contribution to works that ultimately did not benefit the company’s development”.
If that were the law, Mr Justice Hogan added, then “it would be tantamount to saying the council enjoyed a taxation power”.
The company paid €1.1 million as a contribution towards construction of a 2.7km bypass of the village of Barna, but just 460 metres of the bypass have been constructed.
The council argued that the proposed carriageway was 1.7km, with the extra kilometre made up of roundabouts and slip roads.
The company, with registered offices at Augustine Street, Galway, brought proceedings over the council’s refusal to refund the bypass contribution money.
The company claimed it was required to pay the money to the council as a condition of securing planning permission for 148 dwellings and five commercial units at “An Creggan” in Barna.
Planning permission was granted by An Bord Pleanála in January 2003 and O’Malley Construction paid €1.1 million towards the cost of the proposed bypass, which was located to the north of Barna and was due to link up with the road around Galway city.
The total cost of the proposed bypass was €8.95 million.
In the eight years since planning permission was granted, the company claimed just 17 per cent, or 460 metres, of the road to the north of Barna had been built.
As a result, the company sought the bulk of its payment back. The council opposed the proceedings. It refused the refund request because a section of the bypass had already been built.
It also argued that the company was made aware that the completion of the bypass was contingent on other development in the vicinity being completed.
The company argued it was entitled to a refund because, under the terms of the planning condition, the payment was made on the basis the entire bypass would be completed.
In addition to the €1.1 million contribution, O’Malley Construction paid the council an additional €100,000 as a goodwill gesture and also wanted that back.
In his judgment, Mr Justice Hogan said the council had had seven years to build the bypass. As this had not occurred, the council’s requirement for a planning contribution was ultra vires and the local authority was obliged to return the money.
The judge said the company was not entitled to have the €100,000 goodwill gesture returned.
Unlike the planning contribution, that payment was voluntary and earmarked for a specific purpose – to buy the lands where the 460 metres of carriageway had been built, he concluded.
Irish Times
www.buckplanning.ie
Mr Justice Gerard Hogan said yesterday that O’Malley Construction Ltd was entitled to a refund of €1.1 million, with interest, of money paid as part of a condition of planning permission secured by it several years ago to develop a site at Barna, west of Galway city.
The judge held that as the bypass had not been completed, the council was “not entitled to require the developer to make a contribution to works that ultimately did not benefit the company’s development”.
If that were the law, Mr Justice Hogan added, then “it would be tantamount to saying the council enjoyed a taxation power”.
The company paid €1.1 million as a contribution towards construction of a 2.7km bypass of the village of Barna, but just 460 metres of the bypass have been constructed.
The council argued that the proposed carriageway was 1.7km, with the extra kilometre made up of roundabouts and slip roads.
The company, with registered offices at Augustine Street, Galway, brought proceedings over the council’s refusal to refund the bypass contribution money.
The company claimed it was required to pay the money to the council as a condition of securing planning permission for 148 dwellings and five commercial units at “An Creggan” in Barna.
Planning permission was granted by An Bord Pleanála in January 2003 and O’Malley Construction paid €1.1 million towards the cost of the proposed bypass, which was located to the north of Barna and was due to link up with the road around Galway city.
The total cost of the proposed bypass was €8.95 million.
In the eight years since planning permission was granted, the company claimed just 17 per cent, or 460 metres, of the road to the north of Barna had been built.
As a result, the company sought the bulk of its payment back. The council opposed the proceedings. It refused the refund request because a section of the bypass had already been built.
It also argued that the company was made aware that the completion of the bypass was contingent on other development in the vicinity being completed.
The company argued it was entitled to a refund because, under the terms of the planning condition, the payment was made on the basis the entire bypass would be completed.
In addition to the €1.1 million contribution, O’Malley Construction paid the council an additional €100,000 as a goodwill gesture and also wanted that back.
In his judgment, Mr Justice Hogan said the council had had seven years to build the bypass. As this had not occurred, the council’s requirement for a planning contribution was ultra vires and the local authority was obliged to return the money.
The judge said the company was not entitled to have the €100,000 goodwill gesture returned.
Unlike the planning contribution, that payment was voluntary and earmarked for a specific purpose – to buy the lands where the 460 metres of carriageway had been built, he concluded.
Irish Times
www.buckplanning.ie
Tuesday, 26 July 2011
€86,000 planning board costs bill reflects economic reality - judge
A small farmer in Sligo who challenged plans for a dead animal processing plant near his farm has lost his appeal against a ruling that he must pay An Bord Pleanála €86,000 in legal costs. Volkmar Klohn moved from Berlin in 1985 and bought the 14-hectare Crimlin Farm in Tubbercurry where he grows vegetables for sale.
In 2006, he sought a judicial review of a decision by the planning board upholding planning permission for a fallen animal unit at Achonry, Co Sligo. In 2008, the High Court found in favour of An Bord Pleanaála after a four-day hearing.
The taxing master assessed the planning board’s legal costs at €86,000, including solicitors’ fees of €32,580 - reduced from €45,000 - senior counsel’s fee of €20,000 and junior counsel’s fee of €14,250.
Klohn said his own legal fees amounted to €32,550, and the board’s costs should have been even less. The taxing master also failed to take into account his very limited resources as a small farmer and a means-tested medical card holder.
Klohn also claimed that the taxing master should have taken into account Article 10a of the 1985 EIA Directive which guarantees that legal proceedings challenging planning decisions about Environmental Impact Assessments ‘‘shall Not be prohibitively expensive’’.
The Aarhus Convention, signed by Ireland in 1998, also says that the costs of challenges to environmental decisions should not be too dear.
The farmer said that, before he launched the proceedings, he was told there was ‘‘no fear of prohibitively high legal costs’’ because of the directive.
But the board said that the directive related only to applications and decisions made after June 2005. In this case, the planning application was made in 2003, and An Bord Pleanála gave its ruling in April 2004.
Mr Justice John Hedigan said the High Court had no more powers than the taxing master, which were limited to assessing and deciding the value of work done.
He said the High Court had already decided that Article 10a of the directive did not have direct effect as it was ‘‘lacking in clarity and precision’’. The Aarhus Convention was not applicable, as Ireland had not formally ratified it.
The judge said the taxing master’s allowance was not excessive in the context of a four day judicial review hearing in the High Court.
‘‘The costs, as assessed, appear to reflect economic reality for litigants in the state," said Hedigan.
Sunday Business Post
www.buckplanning.ie
In 2006, he sought a judicial review of a decision by the planning board upholding planning permission for a fallen animal unit at Achonry, Co Sligo. In 2008, the High Court found in favour of An Bord Pleanaála after a four-day hearing.
The taxing master assessed the planning board’s legal costs at €86,000, including solicitors’ fees of €32,580 - reduced from €45,000 - senior counsel’s fee of €20,000 and junior counsel’s fee of €14,250.
Klohn said his own legal fees amounted to €32,550, and the board’s costs should have been even less. The taxing master also failed to take into account his very limited resources as a small farmer and a means-tested medical card holder.
Klohn also claimed that the taxing master should have taken into account Article 10a of the 1985 EIA Directive which guarantees that legal proceedings challenging planning decisions about Environmental Impact Assessments ‘‘shall Not be prohibitively expensive’’.
The Aarhus Convention, signed by Ireland in 1998, also says that the costs of challenges to environmental decisions should not be too dear.
The farmer said that, before he launched the proceedings, he was told there was ‘‘no fear of prohibitively high legal costs’’ because of the directive.
But the board said that the directive related only to applications and decisions made after June 2005. In this case, the planning application was made in 2003, and An Bord Pleanála gave its ruling in April 2004.
Mr Justice John Hedigan said the High Court had no more powers than the taxing master, which were limited to assessing and deciding the value of work done.
He said the High Court had already decided that Article 10a of the directive did not have direct effect as it was ‘‘lacking in clarity and precision’’. The Aarhus Convention was not applicable, as Ireland had not formally ratified it.
The judge said the taxing master’s allowance was not excessive in the context of a four day judicial review hearing in the High Court.
‘‘The costs, as assessed, appear to reflect economic reality for litigants in the state," said Hedigan.
Sunday Business Post
www.buckplanning.ie
Wednesday, 13 July 2011
Men within their rights to have church building demolished
THE OWNERS of a landmark former church building near Croke Park had the law on their side when they began demolition work on it three years ago, the High Court has ruled.
Mr Justice John MacMenamin said the consequence of his decision, that partial demolition work on the former Methodist Church on Jones’s Road did not require planning permission, would be its entire demolition. He has adjourned making specific orders for two weeks.
He was giving his reserved judgment upholding a challenge by Co Mayo businessman John Healy to decisions by Dublin City Council and An Bord Pleanála that the demolition work on the building was not exempted development.
Mr Healy, with Adrian McNally, Liam Healy and Sham Rudden Abehim, bought the building in January 2007. It had been used for commercial purposes for a number of years and the purchasers planned to redevelop it.
While conscious the church was a local landmark, a familiar point of reference for Croke Park patrons, and that his decision may annoy and frustrate local residents, it was the duty of the court to uphold the law, he said.
Mr Justice MacMenamin noted the building had no architectural, archaeological, environmental or scientific designation and was not identified as a protected structure in the city development plan 2005-2011. Before they bought it, the partners examined the legal status of the property and were satisfied there were no restrictions on its demolition, the judge said.
Regulations introduced in 2008 around the same time as the demolition work was carried out did not come into force in time to save this building. This was a single integrated development which started before the regulations came in, he ruled. Therefore it must be treated as what it was at the outset, an exempted development.
Irish Times
www.buckplanning.ie
Mr Justice John MacMenamin said the consequence of his decision, that partial demolition work on the former Methodist Church on Jones’s Road did not require planning permission, would be its entire demolition. He has adjourned making specific orders for two weeks.
He was giving his reserved judgment upholding a challenge by Co Mayo businessman John Healy to decisions by Dublin City Council and An Bord Pleanála that the demolition work on the building was not exempted development.
Mr Healy, with Adrian McNally, Liam Healy and Sham Rudden Abehim, bought the building in January 2007. It had been used for commercial purposes for a number of years and the purchasers planned to redevelop it.
While conscious the church was a local landmark, a familiar point of reference for Croke Park patrons, and that his decision may annoy and frustrate local residents, it was the duty of the court to uphold the law, he said.
Mr Justice MacMenamin noted the building had no architectural, archaeological, environmental or scientific designation and was not identified as a protected structure in the city development plan 2005-2011. Before they bought it, the partners examined the legal status of the property and were satisfied there were no restrictions on its demolition, the judge said.
Regulations introduced in 2008 around the same time as the demolition work was carried out did not come into force in time to save this building. This was a single integrated development which started before the regulations came in, he ruled. Therefore it must be treated as what it was at the outset, an exempted development.
Irish Times
www.buckplanning.ie
Wednesday, 8 June 2011
Judge orders planning vote rethink
A HIGH Court judge has directed Galway city councillors to reconsider part of their development plan following a controversial vote earlier this year.
Mr Justice George Birmingham said all 15 members of the council should retake, by July 11th, their votes on a material amendment to the plan that would designate lands at Westside retail-commercial area as a district centre. The council had voted to reject that amendment.
Part of those lands at Rahoon are owned by former Fianna Fáil councillor Michael O’Higgins, who made submissions as part of the development plan review in support of a district centre designation. He hopes designation will facilitate the development of a Tesco outlet.
Following last January’s vote rejecting the district centre designation, he brought High Court proceedings against the council over the manner in which the vote was exercised.
The vote was held after a row earlier in the meeting between the mayor (Fianna Fáil Cllr Michael Crowe) and Independent Cllr Catherine Connolly.
The mayor considered remarks made by Cllr Connolly offensive and sought to have her leave the meeting.
The councillors voted by seven votes to five, with three abstentions, that she should leave the meeting.
She did not leave but the mayor did, after which the deputy mayor took over the chair.
The vote on the Rahoon lands was tied at 7/7 but, with the casting vote of the deputy mayor, the motion to designate them as a district centre was defeated.
Mr O’Higgins claimed Cllr Connolly was required, under the council’s standing orders to leave and, had she done so, the vote would have been in his favour.
Mr O’Higgins, Taylor’s Hill, Galway, and his company, T O’hUiginn Comhlucht Teoranta, sought orders overturning the vote relating to his lands.
He also sought orders providing for a district centre designation or, alternatively, an order requiring the council to retake the vote in accordance with its standing orders.
Yesterday, following legal argument, Mr Justice Birmingham said he wanted a new vote to take place on the amendment and knew all councillors would cast their votes “in good conscience”.
The question of who could vote on the matter was fundamental to the validity of any decision and therefore the outcome of the meeting was irregular, he said.
He did not believe other councillors had effectively waived their earlier decision that Cllr Connolly should leave but rather were of the view they should get on with the meeting.
He also indicated Cllr Connolly could participate at the meeting to reconsider the vote.
He said she had only been asked to leave the January meeting, not any other.
He awarded two-thirds of the costs of the proceedings to Mr O’Higgins.
Irish Times
www.buckplanning.ie
Mr Justice George Birmingham said all 15 members of the council should retake, by July 11th, their votes on a material amendment to the plan that would designate lands at Westside retail-commercial area as a district centre. The council had voted to reject that amendment.
Part of those lands at Rahoon are owned by former Fianna Fáil councillor Michael O’Higgins, who made submissions as part of the development plan review in support of a district centre designation. He hopes designation will facilitate the development of a Tesco outlet.
Following last January’s vote rejecting the district centre designation, he brought High Court proceedings against the council over the manner in which the vote was exercised.
The vote was held after a row earlier in the meeting between the mayor (Fianna Fáil Cllr Michael Crowe) and Independent Cllr Catherine Connolly.
The mayor considered remarks made by Cllr Connolly offensive and sought to have her leave the meeting.
The councillors voted by seven votes to five, with three abstentions, that she should leave the meeting.
She did not leave but the mayor did, after which the deputy mayor took over the chair.
The vote on the Rahoon lands was tied at 7/7 but, with the casting vote of the deputy mayor, the motion to designate them as a district centre was defeated.
Mr O’Higgins claimed Cllr Connolly was required, under the council’s standing orders to leave and, had she done so, the vote would have been in his favour.
Mr O’Higgins, Taylor’s Hill, Galway, and his company, T O’hUiginn Comhlucht Teoranta, sought orders overturning the vote relating to his lands.
He also sought orders providing for a district centre designation or, alternatively, an order requiring the council to retake the vote in accordance with its standing orders.
Yesterday, following legal argument, Mr Justice Birmingham said he wanted a new vote to take place on the amendment and knew all councillors would cast their votes “in good conscience”.
The question of who could vote on the matter was fundamental to the validity of any decision and therefore the outcome of the meeting was irregular, he said.
He did not believe other councillors had effectively waived their earlier decision that Cllr Connolly should leave but rather were of the view they should get on with the meeting.
He also indicated Cllr Connolly could participate at the meeting to reconsider the vote.
He said she had only been asked to leave the January meeting, not any other.
He awarded two-thirds of the costs of the proceedings to Mr O’Higgins.
Irish Times
www.buckplanning.ie
Monday, 16 May 2011
Quarry firm challenges lands' national monument status
A QUARRY company has brought a legal challenge to a decision to designate lands owned by it as a national monument after ancient burial sites were discovered.
Keegan Quarries Ltd wants to develop lands at Trammon, near Rathmolyon, Co Meath, and is seeking orders quashing the Department of the Environment’s decision to include a section of 10 acres on the register of national monuments. That decision was made after human remains were found at two separate locations on the lands.
The company claims the department’s decision is unfair and in breach of its rights. It also claims that one of the burial sites appeared to be outside the section of lands to be included on the register of national monuments.
At the High Court yesterday, Shane Murphy SC, for the company, said it was concerned at the “leisurely manner” in which the department had made its decision.
The company wants the court to quash an order made in December 2010 by then minister for the environment John Gormley to include the lands at Trammon on the register of national monuments.
Leave to bring the judicial review proceedings was granted yesterday by Mr Justice Michael Peart.
In applying for leave, Mr Murphy said his client purchased the lands, located on either sides of the R156, for €2 million in 2005. Keegan’s had intended to develop the land to include a factory, he said.
As part of its planning application, an environmental impact report was prepared, and archaeological and geophysical surveys were conducted. Human remains were discovered on the site and the company decided to cordon off two acres on the site.
Planning permission was then sought to develop part of the site, which did not include the areas where the remains were found, counsel said.
An Bord Pleanála had turned down the planning application and the company was considering its options when it discovered earlier this year the minister had made an order including the site on the register of national monuments. The department did not inform the company of that decision, he said.
After examining material in relation to its decision, it appeared one of the burial sites was outside the section of the site to be included on the register, counsel said.
Irish Times
www.buckplanning.ie
Keegan Quarries Ltd wants to develop lands at Trammon, near Rathmolyon, Co Meath, and is seeking orders quashing the Department of the Environment’s decision to include a section of 10 acres on the register of national monuments. That decision was made after human remains were found at two separate locations on the lands.
The company claims the department’s decision is unfair and in breach of its rights. It also claims that one of the burial sites appeared to be outside the section of lands to be included on the register of national monuments.
At the High Court yesterday, Shane Murphy SC, for the company, said it was concerned at the “leisurely manner” in which the department had made its decision.
The company wants the court to quash an order made in December 2010 by then minister for the environment John Gormley to include the lands at Trammon on the register of national monuments.
Leave to bring the judicial review proceedings was granted yesterday by Mr Justice Michael Peart.
In applying for leave, Mr Murphy said his client purchased the lands, located on either sides of the R156, for €2 million in 2005. Keegan’s had intended to develop the land to include a factory, he said.
As part of its planning application, an environmental impact report was prepared, and archaeological and geophysical surveys were conducted. Human remains were discovered on the site and the company decided to cordon off two acres on the site.
Planning permission was then sought to develop part of the site, which did not include the areas where the remains were found, counsel said.
An Bord Pleanála had turned down the planning application and the company was considering its options when it discovered earlier this year the minister had made an order including the site on the register of national monuments. The department did not inform the company of that decision, he said.
After examining material in relation to its decision, it appeared one of the burial sites was outside the section of the site to be included on the register, counsel said.
Irish Times
www.buckplanning.ie
Wednesday, 16 February 2011
Planning permission for Monaghan quarry quashed
An Taisce -v- Ireland Ors Neutral citation (2010) IEHC 415. High Court Judgment was delivered on November 25th, 2011, by Mr Justice Peter Charleton.
Judgment
Planning permission issued by An Bord Pleanála was quashed on the grounds that no reasons were given for the granting of the permission for the continued use of a quarry at Lengare, Clontibret, Co Monaghan.
Background
On July 20th, 2009, An Bord Pleanála granted planning permission to John McQuade Quarries Ltd to continue to use a quarry at Lengare, subject to conditions. It did so on the basis that the quarry had begun to operate before the implementation of the 1963 Local Government Planning and Development Act in 1964 and the use had not been changed since through intensification.
A judicial review of this decision was sought on the grounds that An Bord Pleanála had failed to consider its usage before the implementation of the planning code in 1964; had failed to consider its use before 1964 and engaged in an irrational approach to its use before 1964; failed to give any reason for any decision it may have made about its pre-1964 use; and failed to give an consideration as to whether there were exceptional circumstances for its retention.
Mr Justice Charleton said ordinarily, the use of land before October 1st, 1964, was outside the scope of planning control once a building exists or a use is established before then and continues. Quarries were made an exception to that exemption in the 2000 Act, which required all quarries to be registered, subject to planning scrutiny and, where appropriate, subjected to conditions. Quarries with an extraction area of five hectares or more must submit an environmental impact assessment when applying for planning permission.
Whether the use involved is impermissible intensification of use, as opposed to a proportionate and lawful continuance of pre-planning control use, is a question for analysis by the planning authority based on case law, he said.
Mr Justice Charleton quoted section 261 of the 2000 Planning and Development Act and pointed out that under section 261(7), a planning authority, or An Bord Pleanála on appeal, was obliged to have regard to the existing use of land in respect of a quarry greater than five hectares.
“What is crucial, however, to the proper operation of the subsection, is that an unlawful use of land must be disregarded,” he said. “Regrettably, it is apparent on the face of the order that a number of significant errors were made in the decision of the board.”
Decision
The first of these was the reference in the board’s decision to “mining on this site [from] the 19th century”. Mr Justice Charleton said that mining could not be equated with quarrying, which could have significant adverse effects on the landscape, on noise and on the emission of pollutants.
The board also pointed to the registration of the quarry. However, this did not establish its pre-1964 use. If the use of a quarry was unlawful before registration, that status remained afterwards.
In addition, he said the imposition of conditions did not alter the status of a quarry. There was no need for a decision on the issue of whether there had been an irrational approach by the board to the issue of pre-1964 use.
However, he added that some observations were necessary. He referred to a report in May 2008 by an inspector from An Bord Pleanála which pointed out that An Taisce made the case that a large portion of the site was unauthorised. The inspector had said that the case had been made “quite convincingly” that the pre-1964 quarry related to only a portion of the subject’s site, so its expansion was unauthorised.
The pre-1964 use involved some blasting and the removal of stones by horse and cart. The current level of operation involved more than 40 lorry loads and 10 tractor and trailer loads of minerals being removed each working day. There had been no analysis by the board, apart from the inspector’s report, of An Taisce’s evidence of change of use through intensification.
Section 34 of the 2000 Act stated that a planning authority, or An Bord Pleanála on appeal, must give reasons for its decisions. In particular, where the report of an inspector is not accepted, the reasons for this must be stated. In this decision, the reasons were manifestly absent and there was no consideration of pre-1964 use.
The court quashed the planning permission for retention.
Full judgment is on courts.ie
For An Taisce: Casey Co
Irishh Times
www.buckplanning.ie
Judgment
Planning permission issued by An Bord Pleanála was quashed on the grounds that no reasons were given for the granting of the permission for the continued use of a quarry at Lengare, Clontibret, Co Monaghan.
Background
On July 20th, 2009, An Bord Pleanála granted planning permission to John McQuade Quarries Ltd to continue to use a quarry at Lengare, subject to conditions. It did so on the basis that the quarry had begun to operate before the implementation of the 1963 Local Government Planning and Development Act in 1964 and the use had not been changed since through intensification.
A judicial review of this decision was sought on the grounds that An Bord Pleanála had failed to consider its usage before the implementation of the planning code in 1964; had failed to consider its use before 1964 and engaged in an irrational approach to its use before 1964; failed to give any reason for any decision it may have made about its pre-1964 use; and failed to give an consideration as to whether there were exceptional circumstances for its retention.
Mr Justice Charleton said ordinarily, the use of land before October 1st, 1964, was outside the scope of planning control once a building exists or a use is established before then and continues. Quarries were made an exception to that exemption in the 2000 Act, which required all quarries to be registered, subject to planning scrutiny and, where appropriate, subjected to conditions. Quarries with an extraction area of five hectares or more must submit an environmental impact assessment when applying for planning permission.
Whether the use involved is impermissible intensification of use, as opposed to a proportionate and lawful continuance of pre-planning control use, is a question for analysis by the planning authority based on case law, he said.
Mr Justice Charleton quoted section 261 of the 2000 Planning and Development Act and pointed out that under section 261(7), a planning authority, or An Bord Pleanála on appeal, was obliged to have regard to the existing use of land in respect of a quarry greater than five hectares.
“What is crucial, however, to the proper operation of the subsection, is that an unlawful use of land must be disregarded,” he said. “Regrettably, it is apparent on the face of the order that a number of significant errors were made in the decision of the board.”
Decision
The first of these was the reference in the board’s decision to “mining on this site [from] the 19th century”. Mr Justice Charleton said that mining could not be equated with quarrying, which could have significant adverse effects on the landscape, on noise and on the emission of pollutants.
The board also pointed to the registration of the quarry. However, this did not establish its pre-1964 use. If the use of a quarry was unlawful before registration, that status remained afterwards.
In addition, he said the imposition of conditions did not alter the status of a quarry. There was no need for a decision on the issue of whether there had been an irrational approach by the board to the issue of pre-1964 use.
However, he added that some observations were necessary. He referred to a report in May 2008 by an inspector from An Bord Pleanála which pointed out that An Taisce made the case that a large portion of the site was unauthorised. The inspector had said that the case had been made “quite convincingly” that the pre-1964 quarry related to only a portion of the subject’s site, so its expansion was unauthorised.
The pre-1964 use involved some blasting and the removal of stones by horse and cart. The current level of operation involved more than 40 lorry loads and 10 tractor and trailer loads of minerals being removed each working day. There had been no analysis by the board, apart from the inspector’s report, of An Taisce’s evidence of change of use through intensification.
Section 34 of the 2000 Act stated that a planning authority, or An Bord Pleanála on appeal, must give reasons for its decisions. In particular, where the report of an inspector is not accepted, the reasons for this must be stated. In this decision, the reasons were manifestly absent and there was no consideration of pre-1964 use.
The court quashed the planning permission for retention.
Full judgment is on courts.ie
For An Taisce: Casey Co
Irishh Times
www.buckplanning.ie
Thursday, 9 December 2010
Judge criticises plan for houses in Galway
A HIGH Court judge has described as very difficult to understand Galway County Council’s decision to grant planning permission for a housing estate outside Kinvara town on a blind corner on a main road to Ballyvaughan and the Burren area.
It had been proposed to build 31 houses on a main road with a 100km/h speed limit and the council’s permission also extended a town in an unplanned manner in an important tourist area, Mr Justice Peter Charleton said.
The development would have resulted in the blind movement, in terms of sight lines for traffic, of many vehicle journeys to and from “this suburban-type estate”.
It was difficult to see why the court should be required to authorise a public danger or to quash a well-reasoned decision of An Bord Pleanála which overturned the council’s grant of permission, he said.
Mr Justice Charleton yesterday dismissed developer Brian McMahon’s challenge to the board’s November 2009 refusal of permission. The judge also rejected arguments that the High Court, if it finds defects in the procedures leading to the making of planning decisions, has then no discretion but to quash those decisions.
The board had very strong reasons for its refusal of permission, including its view that the proposed development would imperil traffic safety, subject the water table to potentially life-threatening contamination or further despoil the countryside with suburban development.
Local authority planning departments were not entitled to ignore the central principle of planning law – the proper planning and sustainable development of an area, he said. The “priceless heritage of generations of work within the countryside, as reflected in our landscape and in the separation of town from rural areas, has been an invaluable economic resource since the foundation of the State,” he said.
Tourism was attracted by the very environment the planning code was designed to foster and protect and the obligation to plan for sustainable development must take into account the nation’s need for revenue from this vital industry, the judge added.
In his judicial review proceedings, Mr McMahon had argued the board was required to inquire whether a statutory acknowledgment by the council of a submission to it against the development by two local objectors, Seán Forde and Jane Joyce, who live beside the proposed development site, was valid on its face.
The couple’s submission was made outside the legal time limits, but the council sent them a formal acknowledgment. When the couple later appealed against the grant of permission to An Bord Pleanála, they enclosed that acknowledgment among their documents as they were required to under planning laws.
Mr McMahon had argued the board should have inquired into the validity of the acknowledgment, but Mr Justice Charleton ruled the board did not have authority under the 2000 Act to make any legal analysis of steps conducted in pursuit of a planning application by a local authority.
Irish Times
www.buckplanning.ie
It had been proposed to build 31 houses on a main road with a 100km/h speed limit and the council’s permission also extended a town in an unplanned manner in an important tourist area, Mr Justice Peter Charleton said.
The development would have resulted in the blind movement, in terms of sight lines for traffic, of many vehicle journeys to and from “this suburban-type estate”.
It was difficult to see why the court should be required to authorise a public danger or to quash a well-reasoned decision of An Bord Pleanála which overturned the council’s grant of permission, he said.
Mr Justice Charleton yesterday dismissed developer Brian McMahon’s challenge to the board’s November 2009 refusal of permission. The judge also rejected arguments that the High Court, if it finds defects in the procedures leading to the making of planning decisions, has then no discretion but to quash those decisions.
The board had very strong reasons for its refusal of permission, including its view that the proposed development would imperil traffic safety, subject the water table to potentially life-threatening contamination or further despoil the countryside with suburban development.
Local authority planning departments were not entitled to ignore the central principle of planning law – the proper planning and sustainable development of an area, he said. The “priceless heritage of generations of work within the countryside, as reflected in our landscape and in the separation of town from rural areas, has been an invaluable economic resource since the foundation of the State,” he said.
Tourism was attracted by the very environment the planning code was designed to foster and protect and the obligation to plan for sustainable development must take into account the nation’s need for revenue from this vital industry, the judge added.
In his judicial review proceedings, Mr McMahon had argued the board was required to inquire whether a statutory acknowledgment by the council of a submission to it against the development by two local objectors, Seán Forde and Jane Joyce, who live beside the proposed development site, was valid on its face.
The couple’s submission was made outside the legal time limits, but the council sent them a formal acknowledgment. When the couple later appealed against the grant of permission to An Bord Pleanála, they enclosed that acknowledgment among their documents as they were required to under planning laws.
Mr McMahon had argued the board should have inquired into the validity of the acknowledgment, but Mr Justice Charleton ruled the board did not have authority under the 2000 Act to make any legal analysis of steps conducted in pursuit of a planning application by a local authority.
Irish Times
www.buckplanning.ie
Friday, 3 September 2010
Warning over car park breaches
A COMPANY director has been warned that he faces being jailed for six months and assets of the firm being seized if there are any further breaches of a High Court order banning the use of an underground car park until fire safety regulations are complied with.
At the High Court yesterday, Mr Justice Peter Charleton held that Hugh McGinley of McGinley Construction was in contempt of a High Court injunction, obtained by Dublin City Council last month, prohibiting the use of the car park.
The court heard that more than 25 cars and motorbikes were found in the underground car park of a complex consisting of 73 apartments in blocks of four and five floors, as well as unoccupied retail units and a creche, at 55-58 East Road, Dublin 3.
The injunction was granted after a senior fire prevention officer with Dublin Fire Brigade expressed fears that a fire in the car park posed “a serious and immediate risk to the lives” of the dozens of occupants living in the apartments located above.
The court heard the council had concerns about the basement’s fire alarm system, fire escape routes and fire-fighting equipment.
James Connolly SC, for the council, said proceedings were brought against McGinley Construction Ltd, Lifford, Co Donegal, which owns and constructed the apartment complex, and Mr McGinley.
Mr Connolly said the injunction was to remain until certain measures took place, including works to ensure compliance with fire safety notices, and that certificates of compliance from a registered engineer or architect were furnished to the Fire Authority.
Despite undertakings from Mr McGinley, Mr Connolly said inspections by the council carried out after the injunction was granted revealed that vehicles and rubbish remained stored in the car park.
Mr McGinley told the court that efforts were being made to comply. He said it had been difficult to stop people from using the basement to park their cars, because those who owned apartments at the complex also owned parking spaces in the basement. There were now only two cars in the car park.
One of the owners was on holidays, while efforts were being made to locate the owner of the other car. Mr McGinley also said that efforts were being made to comply with the fire safety notices.
Mr Justice Charleton said Mr McGinley was in contempt of court. The authority of the High Court had to be obeyed, he said, adding that the whole country has suffered due to a “lack of regulation and authority”.
The judge said he had no option other than to make orders jailing Mr McGinley for six months and seizing the firm’s assets.
However, he was placing a stay on those orders until October 11th, when the matter returns before the court, to allow Mr McGinley time to take steps to rectify the situation.
If there was any further breaches, Mr Justice Charleton said the sanctions would be imposed.
Irish Times
www.buckplanning.ie
At the High Court yesterday, Mr Justice Peter Charleton held that Hugh McGinley of McGinley Construction was in contempt of a High Court injunction, obtained by Dublin City Council last month, prohibiting the use of the car park.
The court heard that more than 25 cars and motorbikes were found in the underground car park of a complex consisting of 73 apartments in blocks of four and five floors, as well as unoccupied retail units and a creche, at 55-58 East Road, Dublin 3.
The injunction was granted after a senior fire prevention officer with Dublin Fire Brigade expressed fears that a fire in the car park posed “a serious and immediate risk to the lives” of the dozens of occupants living in the apartments located above.
The court heard the council had concerns about the basement’s fire alarm system, fire escape routes and fire-fighting equipment.
James Connolly SC, for the council, said proceedings were brought against McGinley Construction Ltd, Lifford, Co Donegal, which owns and constructed the apartment complex, and Mr McGinley.
Mr Connolly said the injunction was to remain until certain measures took place, including works to ensure compliance with fire safety notices, and that certificates of compliance from a registered engineer or architect were furnished to the Fire Authority.
Despite undertakings from Mr McGinley, Mr Connolly said inspections by the council carried out after the injunction was granted revealed that vehicles and rubbish remained stored in the car park.
Mr McGinley told the court that efforts were being made to comply. He said it had been difficult to stop people from using the basement to park their cars, because those who owned apartments at the complex also owned parking spaces in the basement. There were now only two cars in the car park.
One of the owners was on holidays, while efforts were being made to locate the owner of the other car. Mr McGinley also said that efforts were being made to comply with the fire safety notices.
Mr Justice Charleton said Mr McGinley was in contempt of court. The authority of the High Court had to be obeyed, he said, adding that the whole country has suffered due to a “lack of regulation and authority”.
The judge said he had no option other than to make orders jailing Mr McGinley for six months and seizing the firm’s assets.
However, he was placing a stay on those orders until October 11th, when the matter returns before the court, to allow Mr McGinley time to take steps to rectify the situation.
If there was any further breaches, Mr Justice Charleton said the sanctions would be imposed.
Irish Times
www.buckplanning.ie
Thursday, 26 August 2010
Alleged use of car park breaches order, says council
DUBLIN CITY Council has obtained permission from the High Court to bring proceedings against a construction company and one of its directors over alleged breaches of orders preventing the use of an apartment complex’s underground car park until fire safety improvements were made.
Yesterday at the High Court, lawyers for the council informed Ms Justice Mary Laffoy that the terms of the injunction against the complex’s owners, and main contractors, McGinley Construction, The Hollands, Lifford, Co Donegal, and a director of the firm, Hugh McGinley, the Haw, Lifford, were not being complied with.
Earlier this month, the council obtained an injunction, pending the full hearing of the action, prohibiting the use of the basement car park at the complex that consists of 73 apartments in blocks of four and five floors as well as unoccupied retail units and a creche at 55-58 East Road, Dublin 3.
Mr Justice Bryan McMahon, who had no hesitation in granting the injunction, also ruled the order was to remain until a number of specific measures take place.
These include the carrying out of works to ensure compliance with fire safety notices and that certificates of compliance from a registered engineer or architect were furnished to the Fire Authority.
The injunction was granted after a senior fire prevention officer with Dublin Fire Brigade expressed his fears that, in the event of a fire in the basement, there was “a serious and immediate risk to the lives” of the dozens of occupants residing in the apartments above unless certain works were complied with.
Yesterday, James Connolly SC, for the council, said that the injunction was originally sought by his clients to prevent the use of the basement for car parking and storing rubbish due to safety concerns.
Mr Connolly said those concerns were “being ignored” and the terms of the injunction were not being complied with. Ms Justice Laffoy made the matter returnable before the High Court next week.
Irish Times
www.buckplanning.ie
Yesterday at the High Court, lawyers for the council informed Ms Justice Mary Laffoy that the terms of the injunction against the complex’s owners, and main contractors, McGinley Construction, The Hollands, Lifford, Co Donegal, and a director of the firm, Hugh McGinley, the Haw, Lifford, were not being complied with.
Earlier this month, the council obtained an injunction, pending the full hearing of the action, prohibiting the use of the basement car park at the complex that consists of 73 apartments in blocks of four and five floors as well as unoccupied retail units and a creche at 55-58 East Road, Dublin 3.
Mr Justice Bryan McMahon, who had no hesitation in granting the injunction, also ruled the order was to remain until a number of specific measures take place.
These include the carrying out of works to ensure compliance with fire safety notices and that certificates of compliance from a registered engineer or architect were furnished to the Fire Authority.
The injunction was granted after a senior fire prevention officer with Dublin Fire Brigade expressed his fears that, in the event of a fire in the basement, there was “a serious and immediate risk to the lives” of the dozens of occupants residing in the apartments above unless certain works were complied with.
Yesterday, James Connolly SC, for the council, said that the injunction was originally sought by his clients to prevent the use of the basement for car parking and storing rubbish due to safety concerns.
Mr Connolly said those concerns were “being ignored” and the terms of the injunction were not being complied with. Ms Justice Laffoy made the matter returnable before the High Court next week.
Irish Times
www.buckplanning.ie
Sunday, 20 June 2010
Judgment reserved in Morrison bid to protect privacy of home
THE HIGH Court has reserved judgment on an action by singer Van Morrison’s wife aimed at safeguarding the privacy of the couple’s home in Dalkey, Co Dublin.
Mr Justice Michael Hanna said he hoped to deliver judgment as soon as possible, but indicated he might be unable to do so until late this year.
An Bord Pleanála had stated it did not regard removal of trees as a development matter. “We do not accept there has been significant unauthorised removal of trees,” said Esmonde Keane SC, for Mary and Desmond Kavanagh, whose house neighbours the singer’s.
The judge yesterday heard final legal submissions in the six-day case in which Michelle Morrison is seeking leave to bring a judicial review challenge to a permission compliance notice issued by Dún Laoghaire-Rathdown County Council to the Kavanaghs for redevelopment of their home, Mount Alverno, at Sorrento Road, Dalkey.
At the end of legal submissions yesterday, lawyers for both sides disputed a number of claims, including whether the Kavanagh home – described by Eamon Galligan SC, for Ms Morrison, as a 7,500sq ft “Celtic-tiger” type dwelling – was actually that size. Mr Galligan said it was 630sq m (6,778 sq ft), and while this was not exactly 7,500 sq ft, it was approximately that figure.
Mr Keane disputed Mr Galligan’s claims that the removal of certain trees at the Mount Alverno property amounted to significant unauthorised development.
Ms Morrison, who lives in neighbouring Kilross House, claims the permission is invalid, and that the council failed to protect her privacy through allowing the Kavanaghs to remove trees which she claims would have provided her home with maximum screening.
She has claimed that a proposal by her neighbours to plant shrubs instead would not have the same effect.
Ms Morrison claims the work at Mount Alverno has led to a loss of privacy at her home and she has no choice but to bring court proceedings because of the alleged failure of the planning authority.
She claims the council accepted compliance at a time when there were unauthorised works on the entrance to Mount Alverno, even though this was later rectified by another planning permission.
Irish Times
www.buckplanning.ie
Mr Justice Michael Hanna said he hoped to deliver judgment as soon as possible, but indicated he might be unable to do so until late this year.
An Bord Pleanála had stated it did not regard removal of trees as a development matter. “We do not accept there has been significant unauthorised removal of trees,” said Esmonde Keane SC, for Mary and Desmond Kavanagh, whose house neighbours the singer’s.
The judge yesterday heard final legal submissions in the six-day case in which Michelle Morrison is seeking leave to bring a judicial review challenge to a permission compliance notice issued by Dún Laoghaire-Rathdown County Council to the Kavanaghs for redevelopment of their home, Mount Alverno, at Sorrento Road, Dalkey.
At the end of legal submissions yesterday, lawyers for both sides disputed a number of claims, including whether the Kavanagh home – described by Eamon Galligan SC, for Ms Morrison, as a 7,500sq ft “Celtic-tiger” type dwelling – was actually that size. Mr Galligan said it was 630sq m (6,778 sq ft), and while this was not exactly 7,500 sq ft, it was approximately that figure.
Mr Keane disputed Mr Galligan’s claims that the removal of certain trees at the Mount Alverno property amounted to significant unauthorised development.
Ms Morrison, who lives in neighbouring Kilross House, claims the permission is invalid, and that the council failed to protect her privacy through allowing the Kavanaghs to remove trees which she claims would have provided her home with maximum screening.
She has claimed that a proposal by her neighbours to plant shrubs instead would not have the same effect.
Ms Morrison claims the work at Mount Alverno has led to a loss of privacy at her home and she has no choice but to bring court proceedings because of the alleged failure of the planning authority.
She claims the council accepted compliance at a time when there were unauthorised works on the entrance to Mount Alverno, even though this was later rectified by another planning permission.
Irish Times
www.buckplanning.ie
Sunday, 13 June 2010
Morrison's wife in action over privacy of Dalkey home
THE WIFE of singer Van Morrison has initiated a High Court challenge over the alleged failure of her local council to protect the privacy of the couple’s home in Dalkey, Co Dublin, when dealing with planning permissions for a neighbouring “Celtic Tiger type” house.
The council had accepted a permission compliance notice from the couple’s neighbours, Desmond and Mary Kavanagh, which provided for the planting of shrubs between the sides’ properties when it is actually trees that are required to protect her family’s privacy, Michelle Morrison claims.
Ms Morrison, née Rocca, of Kilross House, Sorrento Road, is seeking leave to bring proceedings to quash Dún Laoghaire Rathdown County Council’s acceptance of that notice of compliance related to the redevelopment of neighbouring Mount Alverno, home to the Kavanaghs.
Ms Morrison, described in court papers as a consultant, claims the landscaping proposed for Mount Alverno will cause significant overlooking of her family’s property.
She claims, before accepting the disputed compliance notice, the council failed to take into account a number of unauthorised amendments to previous permissions granted for their neighbour’s property, described by her counsel, Eamon Galligan SC, as a 7,500sq ft “Celtic Tiger type house”. Without proper landscaping and, in particular, the replacement of a number of trees, a “gangway” style balcony in the Kavanagh’s home seriously overlooks Ms Morrison’s rear garden and a large number of first floor windows in Mount Alverno also intrude on her family’s privacy, it is claimed.
Overlooking of the Morrison’s driveway and front living room has already been caused by works to the entrance of Mount Alverno also not carried out in compliance with planning permission, it is alleged.
The court heard the Kavanaghs had proposed providing replacement screening between the properties through shrubs, bay laurel, holly, and cherry laurel but Ms Morrison’s experts argued semi-mature canopy trees are required.
Ms Morrison claims the council should not have accepted a permission compliance notice for Mount Alverno because, she alleges, the landscaping conditions, which had also been imposed in two previous planning permissions, had not been met.
The last permission was granted following a Bord Pleanála appeal in August 2009 and the council accepted a submission from the Kavanaghs the following September as to compliance with the permission. Mr Justice Michael Hanna, at the end of yesterday’s proceedings, urged the parties to consider talking, saying: “This case is going to cost somebody an awful lot of money”.
Opening the case earlier, Mr Galligan, for Ms Morrison, said the council accepted the Kavanagh’s compliance submission, despite the fact Ms Morrison had complained previously of unauthorised work at Mount Alverno. This complaint related to a new entrance which was five feet wider than proposed and was located 18ft from where it was supposed to be.
While the council brought enforcement proceedings over this, that was only after it had accepted the compliance submission from the Kavanaghs in which they had proposed planting holly, laurel and hedging, counsel said.
All the latter were shrubs and there was a significant difference between shrubs and trees, counsel said.
Irish Times
www.buckplanning.ie
The council had accepted a permission compliance notice from the couple’s neighbours, Desmond and Mary Kavanagh, which provided for the planting of shrubs between the sides’ properties when it is actually trees that are required to protect her family’s privacy, Michelle Morrison claims.
Ms Morrison, née Rocca, of Kilross House, Sorrento Road, is seeking leave to bring proceedings to quash Dún Laoghaire Rathdown County Council’s acceptance of that notice of compliance related to the redevelopment of neighbouring Mount Alverno, home to the Kavanaghs.
Ms Morrison, described in court papers as a consultant, claims the landscaping proposed for Mount Alverno will cause significant overlooking of her family’s property.
She claims, before accepting the disputed compliance notice, the council failed to take into account a number of unauthorised amendments to previous permissions granted for their neighbour’s property, described by her counsel, Eamon Galligan SC, as a 7,500sq ft “Celtic Tiger type house”. Without proper landscaping and, in particular, the replacement of a number of trees, a “gangway” style balcony in the Kavanagh’s home seriously overlooks Ms Morrison’s rear garden and a large number of first floor windows in Mount Alverno also intrude on her family’s privacy, it is claimed.
Overlooking of the Morrison’s driveway and front living room has already been caused by works to the entrance of Mount Alverno also not carried out in compliance with planning permission, it is alleged.
The court heard the Kavanaghs had proposed providing replacement screening between the properties through shrubs, bay laurel, holly, and cherry laurel but Ms Morrison’s experts argued semi-mature canopy trees are required.
Ms Morrison claims the council should not have accepted a permission compliance notice for Mount Alverno because, she alleges, the landscaping conditions, which had also been imposed in two previous planning permissions, had not been met.
The last permission was granted following a Bord Pleanála appeal in August 2009 and the council accepted a submission from the Kavanaghs the following September as to compliance with the permission. Mr Justice Michael Hanna, at the end of yesterday’s proceedings, urged the parties to consider talking, saying: “This case is going to cost somebody an awful lot of money”.
Opening the case earlier, Mr Galligan, for Ms Morrison, said the council accepted the Kavanagh’s compliance submission, despite the fact Ms Morrison had complained previously of unauthorised work at Mount Alverno. This complaint related to a new entrance which was five feet wider than proposed and was located 18ft from where it was supposed to be.
While the council brought enforcement proceedings over this, that was only after it had accepted the compliance submission from the Kavanaghs in which they had proposed planting holly, laurel and hedging, counsel said.
All the latter were shrubs and there was a significant difference between shrubs and trees, counsel said.
Irish Times
www.buckplanning.ie
Monday, 12 April 2010
Couple seek to block building works
A SOUTH Dublin couple have claimed before the High Court that construction works that will result in the heightening of the roof of a neighbouring property constitutes an unauthorised development and will result in their home being dwarfed by a taller building.
Dominic and Kay Madden, Sandford Road, Ranelagh, say they are concerned ongoing building work will have a serious impact their family home, where they have lived for 20 years, and the streetscape.
The claim that there has been any unauthorised development carried out is denied.
The Maddens have brought proceedings against the owners of the house on Sandford Road: Elma Kinane and Grellan O’Kelly, Moyne Road, Ranelagh; Tony Mullen Architects, Marine Terrace, Dún Laoghaire, and builder Derek O’Hagen of D O’Hagen Construction, The Poplars, Monkstown Valley, Co Dublin.
The Maddens argue that the current development is not in compliance with the planning permission and are seeking orders prohibiting the construction and development at the neighbouring property. they want it restored to its prior condition. They are also seeking orders prohibiting the respondents from taking steps to carry out the development, including the completion of construction of the premises such that its roof profile differs to that of neighbouring houses on either side.
Mr Justice Bryan McMahon was informed yesterday that undertakings given by Mr O’Kelly and Ms Kinane were acceptable to all the parties, and the matter could be adjourned until later this month.
Irish Times
www.buckplanning.ie
Dominic and Kay Madden, Sandford Road, Ranelagh, say they are concerned ongoing building work will have a serious impact their family home, where they have lived for 20 years, and the streetscape.
The claim that there has been any unauthorised development carried out is denied.
The Maddens have brought proceedings against the owners of the house on Sandford Road: Elma Kinane and Grellan O’Kelly, Moyne Road, Ranelagh; Tony Mullen Architects, Marine Terrace, Dún Laoghaire, and builder Derek O’Hagen of D O’Hagen Construction, The Poplars, Monkstown Valley, Co Dublin.
The Maddens argue that the current development is not in compliance with the planning permission and are seeking orders prohibiting the construction and development at the neighbouring property. they want it restored to its prior condition. They are also seeking orders prohibiting the respondents from taking steps to carry out the development, including the completion of construction of the premises such that its roof profile differs to that of neighbouring houses on either side.
Mr Justice Bryan McMahon was informed yesterday that undertakings given by Mr O’Kelly and Ms Kinane were acceptable to all the parties, and the matter could be adjourned until later this month.
Irish Times
www.buckplanning.ie
Sunday, 21 March 2010
Firm loses Sandyford planning appeal
A PROPERTY development company has lost a High Court attempt to overturn An Bord Pleanála’s refusal of permission for a large development, including a cinema and 259 apartments, at Sandyford, Co Dublin.
Wexele, an unlimited liability company, had proposed to build the development on a site of some 0.67 hectares at Blackthorn Avenue, Sandyford Industrial Estate.
The development included 15 “live-work” apartment units, a gym, a creche, club cinema for the use of residents, 338 car spaces and a commercial floor space.
The Stillorgan Heath and Lakelands Residents Associations, and several individuals, were notice parties to the proceedings.
In a reserved judgment yesterday, Mr Justice Iarfhlaith O’Neill found the reasons given by the board for refusing permission were more than sufficient to discharge its statutory duty under the Planning and Development Act 2000.
Dún Laoghaire Rathdown County Council had in July 2005 decided to grant the proposed scheme planning permission, subject to conditions.
The company appealed against some of those conditions, while 12 other appeals were lodged against the initial decision to grant permission.
The National Roads Authority (NRA) had also expressed concerns about whether the M50/N31/N11 route had capacity for such a development.
In April 2008, the board refused planning permission, saying the proposed development would be contrary to the proper planning and sustainable development of the area.
It also said the development was premature, given existing deficiencies in the road network service in the area and public transport facilities.
Irish Times
www.buckplanning.ie
Wexele, an unlimited liability company, had proposed to build the development on a site of some 0.67 hectares at Blackthorn Avenue, Sandyford Industrial Estate.
The development included 15 “live-work” apartment units, a gym, a creche, club cinema for the use of residents, 338 car spaces and a commercial floor space.
The Stillorgan Heath and Lakelands Residents Associations, and several individuals, were notice parties to the proceedings.
In a reserved judgment yesterday, Mr Justice Iarfhlaith O’Neill found the reasons given by the board for refusing permission were more than sufficient to discharge its statutory duty under the Planning and Development Act 2000.
Dún Laoghaire Rathdown County Council had in July 2005 decided to grant the proposed scheme planning permission, subject to conditions.
The company appealed against some of those conditions, while 12 other appeals were lodged against the initial decision to grant permission.
The National Roads Authority (NRA) had also expressed concerns about whether the M50/N31/N11 route had capacity for such a development.
In April 2008, the board refused planning permission, saying the proposed development would be contrary to the proper planning and sustainable development of the area.
It also said the development was premature, given existing deficiencies in the road network service in the area and public transport facilities.
Irish Times
www.buckplanning.ie
Thursday, 4 March 2010
Bid to stop planned New Ross bypass fails
AN ENVIRONMENTAL campaigner has lost a High Court bid to overturn the granting of planning permission for the New Ross bypass road.
Peter Sweetman had claimed An Bord Pleanála’s decision upholding a grant of permission for the New Ross bypass breached the EU habitats directive, which provides for the conservation of wild fauna and flora via a system of site designation and restrictions on land use. Mr Sweetman made similar claims in a previous unsuccessful High Court challenge to the Galway city outer bypass road. He has appealed the High Court decision in that case to the Supreme Court.
Yesterday, Mr Justice John Hedigan ruled the New Ross bypass was subject to an appropriate assessment in light of the conservation objectives for the site.
There was relevant, and “indeed ample”, evidence before the board upon which it could properly rely to ascertain there would be no likely adverse effect on the site, he said. There was no reasonable scientific doubt about that, he added.
Mr Sweetman, Grosvenor Road, Rathmines, Dublin, sought judicial review of the board’s decision under the Planning and Development Acts 2000-2006. To bring such a judicial review, a challenger must demonstrate “substantial grounds” rather than the “arguable” grounds for other judicial reviews.
Mr Sweetman had argued the board’s decision was irrational because the Minister for the Environment, or other authority, had not set out conservation objectives for the lands through which the road would pass, the judge noted.
Irish Times
www.buckplanning.ie
Peter Sweetman had claimed An Bord Pleanála’s decision upholding a grant of permission for the New Ross bypass breached the EU habitats directive, which provides for the conservation of wild fauna and flora via a system of site designation and restrictions on land use. Mr Sweetman made similar claims in a previous unsuccessful High Court challenge to the Galway city outer bypass road. He has appealed the High Court decision in that case to the Supreme Court.
Yesterday, Mr Justice John Hedigan ruled the New Ross bypass was subject to an appropriate assessment in light of the conservation objectives for the site.
There was relevant, and “indeed ample”, evidence before the board upon which it could properly rely to ascertain there would be no likely adverse effect on the site, he said. There was no reasonable scientific doubt about that, he added.
Mr Sweetman, Grosvenor Road, Rathmines, Dublin, sought judicial review of the board’s decision under the Planning and Development Acts 2000-2006. To bring such a judicial review, a challenger must demonstrate “substantial grounds” rather than the “arguable” grounds for other judicial reviews.
Mr Sweetman had argued the board’s decision was irrational because the Minister for the Environment, or other authority, had not set out conservation objectives for the lands through which the road would pass, the judge noted.
Irish Times
www.buckplanning.ie
Monday, 22 February 2010
No breach of fair procedure over refusal of hospital car park plan
Wexele -v- An Bord Pleanála , High Court : judgment was given by Mr Justice Charleton on February 5th, 2010
Judgment
There was no breach of fair procedures by An Bord Pleanála when it refused planning permission for a development in Dún Laoghaire which would have entailed building apartments and retail units on the car park used by St Michaels hospital.
Background
Mr Justice Charleton said the case was mainly about parking, and concerned whether a planning authority can take into account the loss of parking spaces if a development proceeds. It also concerned fair procedures.
In July 2008, An Bord Pleanála refused permission to the applicant to build an apartment and retail complex consisting of 80 apartments, two retail units and associated car parking for this development and an associated development a short distance away, but only accessible by way of a long detour.
The development of this site would have removed more than 100 car parking spaces at ground level used for many years by St Michael’s hospital for its staff and patients. One of the reasons given for the refusal was that it would lead to the loss of car-parking and increased traffic congestion in the area, would seriously injure the amenities of the property in the area, and be contrary to its proper planning and sustainable development.
The developers were seeking an order of certiorari that the decision in relation to car-parking was beyond the powers of An Bord Pleanála. It also complained of unfair procedures, in that after permission was refused, third party submissions were sent to An Bord Pleanála, and they (the developers) were not furnished with them.
The applicant bought the nurses’ residence attached to St Michael’s Hospital and the car park in December 2006 with a view to developing the site. The planning history of the car park was unclear, but it was used by the hospital staff and visiting patients, accommodating up to 110 cars.
In July 2007 the applicant applied to Dún Laoghaire-Rathdown planning authority for permission to develop the car park site. This would have involved constructing two retail units and 80 apartments. There would be 80 car parking spaces, below the number required per dwelling and retail unit in the Development Plan, and a further 44 available to, but only accessed with difficulty by, residents of a planned nurses’ residence.
The planning authority refused the development on the grounds of the impact of the loss of the 110 parking spaces, impeding on the long-term viability of the hospital.
The applicant appealed this decision to An Bord Pleanála, which upheld the decision of the council.
The applicant took proceedings in the High Court, arguing that once the car park was sold a new planning unit was created and its use by the adjoining hospital was irrelevant. The hospital had no legal right to the parking. In the Dún Laoghaire-Rathdown Development Plan, no provision was made for car parking for the hospital. The company also argued that issues as to parking and traffic congestion as a result of the loss of the car park were outside the scope of what the respondent could have regard to.
Decision
Turning first to the question of fair procedures, and whether the applicant should have been afforded an opportunity to reply to all third party submissions, Mr Justice Charleton said that the scheme under the Planning and Development Act 2000 was not to be replaced with a mechanical notion derived from civil law that everything before the decision-maker must also be before the parties, and that they must be given a reasonable opportunity to counter with submissions of their own.
“ party must show that they have something to say. What they have to say must not be something that has already been said. Nor can it be a reiteration in different language of an earlier submission . . .
“The interests of justice are best met by seeking the comments of an interested party where the Board receives a novel submission on appeal that, reasonably construed, might affect its decision . . . and where that observation is not in substance already part of the papers on the appeal which had been notified to the complaining party. Here, that test is not met.”
In relation to the parking issue, Mr Justice Charleton said a decision by an administrative body is likely to exceed jurisdiction where relevant considerations are not taken into account or where irrelevant considerations underline a decision.
The issue for any planning authority was the proper planning of an area so that there is sustainable and proper development, and this remained paramount. The terms of the Development Plan were not conclusive, and could be breached if it was necessary in the interests of proper planning and sustainable development.
Without this car park 110 cars would be decanted onto the streets of the surrounding area during business hours, for five, six or perhaps seven days a week. This could reasonably be regarded as intolerable.
The previous use of a site was relevant in terms of planning considerations. If this site were to be sold again, a statutory declaration would be made as to its use for a number of years, and possibly prior to October 1st, 1964, as a car park. That was what the applicant purchased. It could shut it down, but the car park site would still be part of the planning landscape.
He said it was reasonable to refuse planning permission for putting land to use for a new purpose, on the grounds that its original use ought to be preserved.
An Bord Pleanála did not breach fair procedures, and the decision made as to car-parking was based upon relevant considerations as to the proper and sustainable development of Dún Laoghaire.
Irish Times
www.buckplanning.ie
Judgment
There was no breach of fair procedures by An Bord Pleanála when it refused planning permission for a development in Dún Laoghaire which would have entailed building apartments and retail units on the car park used by St Michaels hospital.
Background
Mr Justice Charleton said the case was mainly about parking, and concerned whether a planning authority can take into account the loss of parking spaces if a development proceeds. It also concerned fair procedures.
In July 2008, An Bord Pleanála refused permission to the applicant to build an apartment and retail complex consisting of 80 apartments, two retail units and associated car parking for this development and an associated development a short distance away, but only accessible by way of a long detour.
The development of this site would have removed more than 100 car parking spaces at ground level used for many years by St Michael’s hospital for its staff and patients. One of the reasons given for the refusal was that it would lead to the loss of car-parking and increased traffic congestion in the area, would seriously injure the amenities of the property in the area, and be contrary to its proper planning and sustainable development.
The developers were seeking an order of certiorari that the decision in relation to car-parking was beyond the powers of An Bord Pleanála. It also complained of unfair procedures, in that after permission was refused, third party submissions were sent to An Bord Pleanála, and they (the developers) were not furnished with them.
The applicant bought the nurses’ residence attached to St Michael’s Hospital and the car park in December 2006 with a view to developing the site. The planning history of the car park was unclear, but it was used by the hospital staff and visiting patients, accommodating up to 110 cars.
In July 2007 the applicant applied to Dún Laoghaire-Rathdown planning authority for permission to develop the car park site. This would have involved constructing two retail units and 80 apartments. There would be 80 car parking spaces, below the number required per dwelling and retail unit in the Development Plan, and a further 44 available to, but only accessed with difficulty by, residents of a planned nurses’ residence.
The planning authority refused the development on the grounds of the impact of the loss of the 110 parking spaces, impeding on the long-term viability of the hospital.
The applicant appealed this decision to An Bord Pleanála, which upheld the decision of the council.
The applicant took proceedings in the High Court, arguing that once the car park was sold a new planning unit was created and its use by the adjoining hospital was irrelevant. The hospital had no legal right to the parking. In the Dún Laoghaire-Rathdown Development Plan, no provision was made for car parking for the hospital. The company also argued that issues as to parking and traffic congestion as a result of the loss of the car park were outside the scope of what the respondent could have regard to.
Decision
Turning first to the question of fair procedures, and whether the applicant should have been afforded an opportunity to reply to all third party submissions, Mr Justice Charleton said that the scheme under the Planning and Development Act 2000 was not to be replaced with a mechanical notion derived from civil law that everything before the decision-maker must also be before the parties, and that they must be given a reasonable opportunity to counter with submissions of their own.
“ party must show that they have something to say. What they have to say must not be something that has already been said. Nor can it be a reiteration in different language of an earlier submission . . .
“The interests of justice are best met by seeking the comments of an interested party where the Board receives a novel submission on appeal that, reasonably construed, might affect its decision . . . and where that observation is not in substance already part of the papers on the appeal which had been notified to the complaining party. Here, that test is not met.”
In relation to the parking issue, Mr Justice Charleton said a decision by an administrative body is likely to exceed jurisdiction where relevant considerations are not taken into account or where irrelevant considerations underline a decision.
The issue for any planning authority was the proper planning of an area so that there is sustainable and proper development, and this remained paramount. The terms of the Development Plan were not conclusive, and could be breached if it was necessary in the interests of proper planning and sustainable development.
Without this car park 110 cars would be decanted onto the streets of the surrounding area during business hours, for five, six or perhaps seven days a week. This could reasonably be regarded as intolerable.
The previous use of a site was relevant in terms of planning considerations. If this site were to be sold again, a statutory declaration would be made as to its use for a number of years, and possibly prior to October 1st, 1964, as a car park. That was what the applicant purchased. It could shut it down, but the car park site would still be part of the planning landscape.
He said it was reasonable to refuse planning permission for putting land to use for a new purpose, on the grounds that its original use ought to be preserved.
An Bord Pleanála did not breach fair procedures, and the decision made as to car-parking was based upon relevant considerations as to the proper and sustainable development of Dún Laoghaire.
Irish Times
www.buckplanning.ie
Sunday, 21 February 2010
Club's bid to appeal planning decision rejected
WESTWOOD LEISURE Club in Dublin has been refused leave to appeal to the Supreme Court against a High Court decision upholding a Bord Pleanála ruling that its Bar Code nightclub is an unauthorised development.
Last month, Mr Justice John Hedigan rejected claims by the club’s owners, Templeville Developments, that there had been a breach of fair procedures by the board in refusing an application to retain the nightclub use of the Clontarf premises.
The judge also rejected the club’s claim of failure by the board to have proper regard for the Dublin City Development Plan in reaching its decision. Yesterday, Michael Collins, for Westwood, asked the judge for permission to appeal his decision to the Supreme Court on grounds it raised a point of law of “exceptional public importance”.
Mr Collins said the club wanted the Supreme Court to determine if An Bord Pleanála was required to explain its reasoning for refusing permission sufficiently clearly to enable the club to reasonably assess the prospects of succeeding with an alternative proposal.
It was also seeking a determination on whether the board was entitled to refuse permission on the basis that any new works at the development would facilitate an intensification of use.
Notwithstanding its application for leave to appeal to the Supreme Court, the club was preparing an alternative plan which would scale down the premises, counsel added.
He said the club tried to engage with the planning authority, Dublin City Council, as to what might be acceptable to it. It was hoped that process might be made easier by the council “revealing the fifth secret of Fatima in terms of what is acceptable”, he said.
Nuala Butler, for An Bord Pleanála, said the club had raised no issues of public importance requiring determination by the Supreme Court. There was nothing new or novel in what the club was arguing for, she said. Conleth Bradley, for the council, agreed with Ms Butler.
Mr Justice Hedigan rejected the club’s application after holding no point of exceptional public importance was raised in relation to the club’s use. The planning authority had indicated what was permissible at the club and that any bar was to be ancillary to the club’s main activities, the judge said.
The judge adjourned separate proceedings by the council against Templeville seeking to enforce notices that it is in breach of its planning permission.
In its unsuccessful High Court application, Westwood wanted to quash a Bord Pleanála decision upholding the council’s refusal of change of use of the premises to include a late-night bar.
The board also said the Bram Stoker Museum/Dracula Experience on the complex constituted an over-development of the site and found the use of shipping containers and portacabins for storage and signage for Bar Code contrary to proper planning.
Irish Times
www.buckplanning.ie
Last month, Mr Justice John Hedigan rejected claims by the club’s owners, Templeville Developments, that there had been a breach of fair procedures by the board in refusing an application to retain the nightclub use of the Clontarf premises.
The judge also rejected the club’s claim of failure by the board to have proper regard for the Dublin City Development Plan in reaching its decision. Yesterday, Michael Collins, for Westwood, asked the judge for permission to appeal his decision to the Supreme Court on grounds it raised a point of law of “exceptional public importance”.
Mr Collins said the club wanted the Supreme Court to determine if An Bord Pleanála was required to explain its reasoning for refusing permission sufficiently clearly to enable the club to reasonably assess the prospects of succeeding with an alternative proposal.
It was also seeking a determination on whether the board was entitled to refuse permission on the basis that any new works at the development would facilitate an intensification of use.
Notwithstanding its application for leave to appeal to the Supreme Court, the club was preparing an alternative plan which would scale down the premises, counsel added.
He said the club tried to engage with the planning authority, Dublin City Council, as to what might be acceptable to it. It was hoped that process might be made easier by the council “revealing the fifth secret of Fatima in terms of what is acceptable”, he said.
Nuala Butler, for An Bord Pleanála, said the club had raised no issues of public importance requiring determination by the Supreme Court. There was nothing new or novel in what the club was arguing for, she said. Conleth Bradley, for the council, agreed with Ms Butler.
Mr Justice Hedigan rejected the club’s application after holding no point of exceptional public importance was raised in relation to the club’s use. The planning authority had indicated what was permissible at the club and that any bar was to be ancillary to the club’s main activities, the judge said.
The judge adjourned separate proceedings by the council against Templeville seeking to enforce notices that it is in breach of its planning permission.
In its unsuccessful High Court application, Westwood wanted to quash a Bord Pleanála decision upholding the council’s refusal of change of use of the premises to include a late-night bar.
The board also said the Bram Stoker Museum/Dracula Experience on the complex constituted an over-development of the site and found the use of shipping containers and portacabins for storage and signage for Bar Code contrary to proper planning.
Irish Times
www.buckplanning.ie
Monday, 21 September 2009
Pierse Contracting in High Court action against Gannon Homes
Pierse Contracting has lodged a High Court action against Gannon Homes, the property development firm owned by Gerry Gannon.
The case is one of four High Court cases lodged against Gannon Homes this year. Gannon has also had a High Court action taken against him personally by Barina Construction, the building and construction company owned by Niall and Michael Langan.
Gannon, who has been named as one of the Anglo golden circle, is one of the biggest landowners in Dublin, with large holdings around Swords and Malahide. He has made a submission to Fingal county council about the former Belcamp college lands that he bought for over €100m. He also made submissions about land at Carrickbrack Road in Howth, at St Margaret's in Co Dublin, a site at Lusk and two sites in Swords. He sold Pierse a site at Clongriffin near Baldoyle where he is developing Ireland's largest residential scheme. Last year Gannon bought a 17.5-acre site near Kinsale from a company linked to Pierse Construction, according to the Companies Office.
Sunday Tribune
www.buckplanning.ie
The case is one of four High Court cases lodged against Gannon Homes this year. Gannon has also had a High Court action taken against him personally by Barina Construction, the building and construction company owned by Niall and Michael Langan.
Gannon, who has been named as one of the Anglo golden circle, is one of the biggest landowners in Dublin, with large holdings around Swords and Malahide. He has made a submission to Fingal county council about the former Belcamp college lands that he bought for over €100m. He also made submissions about land at Carrickbrack Road in Howth, at St Margaret's in Co Dublin, a site at Lusk and two sites in Swords. He sold Pierse a site at Clongriffin near Baldoyle where he is developing Ireland's largest residential scheme. Last year Gannon bought a 17.5-acre site near Kinsale from a company linked to Pierse Construction, according to the Companies Office.
Sunday Tribune
www.buckplanning.ie
Monday, 3 August 2009
Wicklow council begins computer checks in landfill case
Wicklow County Council has begun an examination of its 300 computers for references to the Whitestown illegal landfill in west Wicklow, in order to comply with a request from the High Court.
A computer belonging to the council’s environmental consultant, Seán Ó Laoire, has already been examined by a computer expert for documents relating to Whitestown, at the direction of Mr Justice Daniel O’Keeffe.
The computer searches were initiated after Mr Ó Laoire revealed that the council, for whom he is an expert witness, had not included his documents in its discovery of files on the Whitestown dump.
Mr Justice O’Keeffe is hearing two sets of proceedings to determine what remediation works should be carried out at Whitestown and who is liable for the cost of such works.
In the first action, the county council is seeking orders under the Waste Management Act against the former owner of the Whitestown lands, John O’Reilly; Brownfield Restoration Ireland Ltd, which bought the lands from Mr O’Reilly in 2003 and two waste companies - Swalcliffe Ltd, trading as Dublin Waste and Dean Waste Co Ltd.
In cross-proceedings, Brownfield and Dean Waste allege the council was, itself, engaged in dumping on the lands - including road work materials - and should bear the remediation costs.
In response to a request from the court for all relevant documents, Mr Ó Laoire delivered three folders of documents to the court, but said he was having a difficulty in accessing further information on his computer hard drive. Mr Justice O’Keeffe then directed Mr Ó Laoire to surrender his computer for technical examination - which he did. A copy of the restored hard drive was presented to Mr Ó Laoire and to other parties to the case.
Mr Justice O’Keeffe also asked Wicklow County Council to consider if it had any other files which might not have been made available in the original discovery of documents. A senior executive engineer, Philip Duffy, began an examination of the council’s computers.
At the resumed hearing, Mr Ó Laoire said he had worked to identify files on the restored hard drive, which might be of interest to the court. He produced five lever-arch files of documents in court. He also agreed he would review what paper files he had archived.
Wicklow County Council said it had covered some 60 of its 300 computers.
Mr Justice O’Keeffe said he would give the parties time to consider issues of privilege and be available to hear any motions which might arise from the discovery of additional documents. He would set aside two weeks in October for the resumption of the hearings.
The Irish Times
www.buckplanning.ie
A computer belonging to the council’s environmental consultant, Seán Ó Laoire, has already been examined by a computer expert for documents relating to Whitestown, at the direction of Mr Justice Daniel O’Keeffe.
The computer searches were initiated after Mr Ó Laoire revealed that the council, for whom he is an expert witness, had not included his documents in its discovery of files on the Whitestown dump.
Mr Justice O’Keeffe is hearing two sets of proceedings to determine what remediation works should be carried out at Whitestown and who is liable for the cost of such works.
In the first action, the county council is seeking orders under the Waste Management Act against the former owner of the Whitestown lands, John O’Reilly; Brownfield Restoration Ireland Ltd, which bought the lands from Mr O’Reilly in 2003 and two waste companies - Swalcliffe Ltd, trading as Dublin Waste and Dean Waste Co Ltd.
In cross-proceedings, Brownfield and Dean Waste allege the council was, itself, engaged in dumping on the lands - including road work materials - and should bear the remediation costs.
In response to a request from the court for all relevant documents, Mr Ó Laoire delivered three folders of documents to the court, but said he was having a difficulty in accessing further information on his computer hard drive. Mr Justice O’Keeffe then directed Mr Ó Laoire to surrender his computer for technical examination - which he did. A copy of the restored hard drive was presented to Mr Ó Laoire and to other parties to the case.
Mr Justice O’Keeffe also asked Wicklow County Council to consider if it had any other files which might not have been made available in the original discovery of documents. A senior executive engineer, Philip Duffy, began an examination of the council’s computers.
At the resumed hearing, Mr Ó Laoire said he had worked to identify files on the restored hard drive, which might be of interest to the court. He produced five lever-arch files of documents in court. He also agreed he would review what paper files he had archived.
Wicklow County Council said it had covered some 60 of its 300 computers.
Mr Justice O’Keeffe said he would give the parties time to consider issues of privilege and be available to hear any motions which might arise from the discovery of additional documents. He would set aside two weeks in October for the resumption of the hearings.
The Irish Times
www.buckplanning.ie
Wicklow council begins computer checks in landfill case
Wicklow County Council has begun an examination of its 300 computers for references to the Whitestown illegal landfill in west Wicklow, in order to comply with a request from the High Court.
A computer belonging to the council’s environmental consultant, Seán Ó Laoire, has already been examined by a computer expert for documents relating to Whitestown, at the direction of Mr Justice Daniel O’Keeffe.
The computer searches were initiated after Mr Ó Laoire revealed that the council, for whom he is an expert witness, had not included his documents in its discovery of files on the Whitestown dump.
Mr Justice O’Keeffe is hearing two sets of proceedings to determine what remediation works should be carried out at Whitestown and who is liable for the cost of such works.
In the first action, the county council is seeking orders under the Waste Management Act against the former owner of the Whitestown lands, John O’Reilly; Brownfield Restoration Ireland Ltd, which bought the lands from Mr O’Reilly in 2003 and two waste companies - Swalcliffe Ltd, trading as Dublin Waste and Dean Waste Co Ltd.
In cross-proceedings, Brownfield and Dean Waste allege the council was, itself, engaged in dumping on the lands - including road work materials - and should bear the remediation costs.
In response to a request from the court for all relevant documents, Mr Ó Laoire delivered three folders of documents to the court, but said he was having a difficulty in accessing further information on his computer hard drive. Mr Justice O’Keeffe then directed Mr Ó Laoire to surrender his computer for technical examination - which he did. A copy of the restored hard drive was presented to Mr Ó Laoire and to other parties to the case.
Mr Justice O’Keeffe also asked Wicklow County Council to consider if it had any other files which might not have been made available in the original discovery of documents. A senior executive engineer, Philip Duffy, began an examination of the council’s computers.
At the resumed hearing, Mr Ó Laoire said he had worked to identify files on the restored hard drive, which might be of interest to the court. He produced five lever-arch files of documents in court. He also agreed he would review what paper files he had archived.
Wicklow County Council said it had covered some 60 of its 300 computers.
Mr Justice O’Keeffe said he would give the parties time to consider issues of privilege and be available to hear any motions which might arise from the discovery of additional documents. He would set aside two weeks in October for the resumption of the hearings.
The Irish Times
www.buckplanning.ie
A computer belonging to the council’s environmental consultant, Seán Ó Laoire, has already been examined by a computer expert for documents relating to Whitestown, at the direction of Mr Justice Daniel O’Keeffe.
The computer searches were initiated after Mr Ó Laoire revealed that the council, for whom he is an expert witness, had not included his documents in its discovery of files on the Whitestown dump.
Mr Justice O’Keeffe is hearing two sets of proceedings to determine what remediation works should be carried out at Whitestown and who is liable for the cost of such works.
In the first action, the county council is seeking orders under the Waste Management Act against the former owner of the Whitestown lands, John O’Reilly; Brownfield Restoration Ireland Ltd, which bought the lands from Mr O’Reilly in 2003 and two waste companies - Swalcliffe Ltd, trading as Dublin Waste and Dean Waste Co Ltd.
In cross-proceedings, Brownfield and Dean Waste allege the council was, itself, engaged in dumping on the lands - including road work materials - and should bear the remediation costs.
In response to a request from the court for all relevant documents, Mr Ó Laoire delivered three folders of documents to the court, but said he was having a difficulty in accessing further information on his computer hard drive. Mr Justice O’Keeffe then directed Mr Ó Laoire to surrender his computer for technical examination - which he did. A copy of the restored hard drive was presented to Mr Ó Laoire and to other parties to the case.
Mr Justice O’Keeffe also asked Wicklow County Council to consider if it had any other files which might not have been made available in the original discovery of documents. A senior executive engineer, Philip Duffy, began an examination of the council’s computers.
At the resumed hearing, Mr Ó Laoire said he had worked to identify files on the restored hard drive, which might be of interest to the court. He produced five lever-arch files of documents in court. He also agreed he would review what paper files he had archived.
Wicklow County Council said it had covered some 60 of its 300 computers.
Mr Justice O’Keeffe said he would give the parties time to consider issues of privilege and be available to hear any motions which might arise from the discovery of additional documents. He would set aside two weeks in October for the resumption of the hearings.
The Irish Times
www.buckplanning.ie
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