The High Court adjourned for 12 months a challenge to waste operations at a site in Labbadish, Manorcunningham, Co Donegal, allowing applications for substitute consent and future planning permission to take their course. It did not make an order requiring the site’s use to stop or the shed to be removed.
Jim (otherwise James) Ferry had sought orders under planning legislation restraining D&M Services and D&M Environmental Services Limited, trading as DM Waste, from continuing what he alleged was unauthorised development and using the lands as a waste and recycling facility. He withdrew his separate claim under waste management legislation.
The judge found that Ferry had not established, on the balance of probabilities, that the site’s current use was unauthorised. She said the evidence did not rule out the respondents’ claim that the use derived from an established industrial use predating planning legislation. The court also noted that neither a waste permit nor pending planning applications gave the respondents planning permission.
On the buildings, the judge found on the balance of probabilities that a shed remained which should have been demolished in 2018. However, Ferry had not produced the relevant planning permission or identified which of the sheds on the site was subject to the demolition condition. The judge said this left a significant gap in his application for an enforcement order.
The judge went on to say that even if the site’s use was unauthorised, and the shed could be identified, she would not make an order after weighing the circumstances. She considered the breach material, but not gross, and found that the respondents had acted in good faith and made efforts to regularise the site’s planning status. She also considered the planning authority’s decision not to bring its own enforcement case, the public interest in planning control, the business’s waste services and employment, Ferry’s conduct and motivation, and his delay in bringing proceedings.
The decision followed a 2019 inspector’s report and a February 2020 decision by An Bord Pleanála granting leave to apply for substitute consent. The judge’s order was an adjournment for mention only after 12 months, not a final determination of the planning applications. The judgment does not state what happened to those applications after the adjournment.