The High Court has upheld a finding that a recycling business near Rathnew, County Wicklow, involved unauthorised development and said it would make an order requiring waste and equipment to be removed from the site. The court invited the parties to propose a realistic timetable for the work.
In a judgment delivered on 29 October 2015, Ms Justice Iseult O’Malley dismissed the business operator’s appeal against the Circuit Court’s finding that the use of the site had materially changed without planning permission. She also rejected his arguments that the Council’s proceedings were out of time, that its delay justified refusing relief, and that revoking his waste facility permit while the planning case was ongoing improperly interfered with the court process.
The Council had appealed the Circuit Court’s refusal to order removal of waste and equipment. The operator, Stan O’Reilly, had been granted leave to appeal the order restraining the operation of the waste recovery business. Both sides also appealed the Circuit Court’s decision to award the Council 50% of its costs. The High Court judgment does not state a decision on that costs appeal.
The Council argued that the recycling operation differed materially from earlier uses of the lands, which had included grain, oil and solid-fuel businesses. The operator said the activity was an exempt industrial process, similar to previous operations. But the court held he could not argue that the business was exempt after failing to appeal or challenge the Council’s 2009 refusal to declare it exempt development. The Circuit Court had therefore been right to find unauthorised development.
The court found the proceedings were within the statutory time limit even if the operator’s use began in May 2006. It accepted there had been significant delay by the Council, but found no acquiescence or resulting hardship that justified refusing relief. It also held that revoking the waste permit under the separate waste-management regime did not determine the planning dispute or prevent the courts from deciding it.
The operator argued that he could not clear the site because his tenancy had ended, he lacked a right to enter, and he no longer had the resources to remove the material. The judge found those claims unsupported by evidence, including evidence from the landowners or about his means. She said an order under section 160(2) of the Planning and Development Act 2000 would be made, but left the timetable for the required works to be settled after submissions from the parties.