Injunctions against Quarries

Illegal quarries seem to be in the news a lot lately, and it is always useful to pursue these stories, as their level of proliferation is usually directly proportional to the level of corruption in our county council system.  The reason for that is that it should be impossible to conduct illegal quarrying if a council is enforcing the planning laws. It always seems to be the case that where an illegal quarry is successfully operating, it is usually because the council is turning a blind eye, or where a specific councillor is influencing the vote.

In the judgment under consideration, Donegal County Council v.P Bonar Plant Hire Ltd t/a Bonar’s Quarry[2020] IEHC 349, to its credit, the council in question, Donegal County Council (DCC) was actually enforcing the planning law and asked the High Court to stop the operations of Bonar’s Quarry.

The DCC asked the High Court to grant an interlocutory injunction in terms of Section 160 of the Planning and Development Act 2000, restraining P Bonar Plant Hire Ltd t/a Bonar’s Quarry from further work at a quarry situated at Calhame, Letterkenny, Donegal.

The reported facts of the case should be extraordinary, but unfortunately are commonplace. Bonar’s Quarry admitted that that An Bord Pleanála refused permission for the carrying out of quarrying works at the site. However, Bonar argued that this prohibition only affected the “extended area”; and it carried on quarrying in what it claimed was the “original site”. It did this on the basis, so it claimed, that the original site had been used as a quarry before 1 October 1964, and that the operation of the quarry had not intensified to such an extent as to amount to a material change in use that would require planning permission.

This is a common argument. It is often the case, although not necessarily with this case, as the judge does not spell this out, that quarry operators know that council records, especially as far back as 1964, are generally in a mess or probably non-existent. What this means is that it is almost impossible to contradict a claim that a quarry has been operating before 1st October 1964 (when planning permission was essentially not necessary). Similarly, it is often difficult, if not impossible, to contradict an assertion that the quarry has changed its operation in any way, so as to amount to a material change requiring planning permission.

The quarry was previously owned by Mountain Top Quarry Ltd (MTQ). In 2003 , MTQ applied for retention and extension of the existing quarry, but this was refused by the ABP, as there was no Environmental Impact Statement (EIS).

MTQ tried again in 2006, applying for retention permission for removal of topsoil and extension of the quarry, accompanied by an EIS. In 2008, An Bord Pleanála granted planning permission for the quarry to operate for five years. In 2012, MTQ applied to Donegal County Council for an extension of the duration of the 2008 permission, and an extension of the 2008 permission until 9 June 2018 was granted.

In 2014 Bonar’s Quarry took over operation of the quarry. In 2018, it applied to Donegal County Council for the continuation of quarrying activities for a period of 10 years, covering the entire quarry site. Planning permission was granted by Donegal County Council in July 2018, but a third-party appeal was lodged with An Bord Pleanála.

In April 2019, An Bord Pleanála refused planning permission for the continuation of quarrying activities because it was not satisfied that the development would not adversely affect the integrity of the Leannan River SAC located 3.5 km away. Further, it found that the EIS was inadequate.

Despite the refusal, the quarry recommenced operations in April 2019. Members of the public complained to the County Council. The County Council issued an Enforcement Notice in June 2019, calling on Bonar’s Quarry to cease all operations. This was ignored.

As previously mentioned, in justifying its ostensibly illegal operations, Bonar argued that on the expiry of the planning permission in June 2018, Bonar’s Quarry reverted to the pre-1964 quarry while all operations in the ‘extended area’ ceased. 

The Law

Section 160 deals with what is known as a “planning injunction” aimed at halting existing, or even preventing future, unauthorised development. The court can grant a prohibitory injunction, in other words stopping or preventing a development. But what a lot of people don’t realise is that this section also authorises the court to grant a mandatory injunction (where the court orders a person to do something). Section 160(2) says that “the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature”. The power to restore land is qualified by the expression “as far as is practicable”. 

The application for an injunction is usually taken by the council, but if the council fails or refuses to act, the application can be made by a member of the public. The section is generous in this regard – the member of the public does not have to show any property right, they must simply be acting to  “procure the performance of a public duty or to prevent its breach” – the so-called  “watchdog role” made famous in the case of Morris v Garvey [1982] I.L.R.M (and see State (Haverty) v An Bord Pleanála [1988] I.L.R.M. 545). 

This generous standing requirement makes sense in that all you are asking for is an injunction – the court will not go fully into disputes of fact or law, this is a stop-gap measure to prevent any further or future damage to the environment. If the respondent wants to challenge the injunction, that is when the issues will be fully explored.

Like the application for any injunction, the court will consider three things. To quote Judge Barr:

“34. In addressing the legal issues which arise on this application, the court must apply the well-known test set down in Campus Oil v. Minister for Industry and Energy [1983] I.R. 82, which established that the court must ask three questions: 

is there a serious question to be tried;

are damages an adequate remedy and 

where does the balance of convenience lie?”

A planning injunction is what is known as a “discretionary remedy”, which is a nice way of saying that the judge has a lot of flexibility in deciding what to do. However, case law shows us that the sorts of things that judges will look at when deciding whether to grant the injunction are as follows:

The reasonableness of the conduct of both parties. The applicant must come to court with “clean hands” – in other words, they must be making the application for pure motive, rather than attempting to secure some hidden agenda (like removing a competitor). Similarly, if the respondent can show that it has bent over backwards to comply, but the applicant insists on taking further legal action (usually again for an ulterior motive), the court can refuse the injunction.

The court can look at “public convenience” – what impact will the injunction have on the surrounding community? For example, the noise and dust might have been harmful to the local community. On the other hand, if the quarry provides a lot of employment to the residents of the area, the court might be reluctant to grant the injunction. You might remember the famous case of Grimes v Punchestown Development [2002] 1 I.L.R.M. 409, where the court refused an injunction to stop the well-known Creamfields rock concert, because of the disappointment it would cause to a lot of people who were keen to attend, as well as the enormous waste of public time and expense for all the public bodies involved who had already made large scale plans for policing, traffic control, waste removal, etc.

Finally, the court may refuse an order where the violation is merely technical or minor; or where an injunction would impose undue hardship on a respondent.

Where the court grants an injunction under s.160, and the respondent fails to comply with the order, this will constitute contempt of court. The matter can be brought back before the court seeking such measures as sequestration of assets or an application for attachment of property and even imprisonment of the owners.

The decision

In granting the injunction, Judge Barr was very clear in his condemnation of the activities of Bonar Quarries (the paragraph numbers refer to the original judgment):

“39. Insofar as there is a dispute between the parties as to whether the respondent is only working the original area of the quarry, or is carrying out works in the so-called “extended area”; that is not a matter that can be determined on an interlocutory application based on affidavit evidence. However, the court is entitled to note that there is strong evidence in the affidavit sworn by Mr. McDermott and in particular, in the aerial photographs exhibited thereto, that the respondent is working the entire site, including the so-called “extended area”.

“42. It is also noteworthy that as of June 2004, the Board indicated that this quarry required to be the subject of an EIA. The applicant is correct in its submission that as a matter of European law, if an EIA is required, planning permission is also required.”

“43. The court is also entitled to have regard to the fact that by virtue of the implementation of the 2008 planning permission, the operator created a single, enlarged quarry on the site, which in planning terms, constituted a single planning unit. The enlarged quarry was not a pre-1964 quarry and was, from June 2008 to June 2018, governed and regulated by the conditions of the planning permission that issued in 2008.”

“47. The respondent’s argument that it is entitled to continue operations on the site of the original quarry, is considerably weakened by the fact that it ceased works in the quarry upon the expiration of the permission in June 2018 and did not attempt to recommence such works until after the refusal of its application for further permission by the Board in April 2019. The court is satisfied that it is entitled to take account of all of these matters in reaching its decision on this application.”

“51. The clearly stated intention of the respondent as expressed by Mr. Bonar, is to continue operating the quarry so as to fulfil its contractual commitments until it is in a position to commence operations at a new quarry in September 2020. The respondent, through Mr. Bonar, has articulated a clear intention to flout the planning laws and the environmental provisions contained therein, until it can carry on its commercial activities at another location.”

“52. In these circumstances the Court is satisfied that the balance of justice lies in favour of the grant of interlocutory injunctive relief against the respondent. The applicant is entitled to the reliefs sought at paragraphs (1) and (2) of the notice of motion.”

This is a very important judgment as it deals with a situation that is common in Ireland – the reliance on the so-called “1st October Rule”. That is a matter for evidence but if the quarry does not have existing planning permission, and is clearly damaging the environment or causing harm to the surrounding community, these should allow a member of the public to apply for a planning injunction (assuming that the council does not do so).

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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