The High Court has rejected O’Reilly Brothers (Wicklow) Limited’s challenge to An Bord Pleanála’s decision that the intensified use of its Ballylusk quarry was development and was not exempted development.
In a judgment delivered on 22 November 2006, Mr Justice Quirke ruled that the Council’s referral met the written grounds requirement in section 127 of the Planning and Development Act 2000. He dismissed the company’s claim for judicial review, so the Board’s decision was not quashed.
The quarry, on the company’s lands at Ballylusk, Ashford, had operated at different times since the mid-nineteenth century. The Council referred a question to the Board after receiving complaints from neighbouring landowners that quarry activity had intensified. The Board decided on 3 July 2003 that the intensification was development and was not exempted development.
The company argued that the Council’s referral was invalid because it did not set out in full the grounds and the reasons, considerations and arguments supporting them, as required by section 127(1)(d). The Board acknowledged that the Council’s submission was inadequate and that its staff had to search through a disordered file containing duplicate correspondence and other documents to identify the supporting material.
The judge stressed that section 127’s requirements are mandatory: the Board cannot waive them, and a non-compliant referral is invalid. But he rejected the argument that all grounds and supporting reasons had to appear in a single document. He found that the Council’s letter identified the question it wanted the Board to determine, while the supporting reasons and arguments could be found across the accompanying documents.
The court agreed that the Council’s papers were “deplorable” in quality and criticised the manner in which the referral was submitted. However, it found that the Board had been able to identify the relevant material and that the participants had been notified of the issues and given opportunities to make submissions. The judge was satisfied that no party had been prejudiced.
The ruling addressed the validity of the referral under section 127. It did not decide the underlying planning question afresh; the Board’s 2003 determination remained in place after the judicial review claim failed.