The High Court has quashed An Bord Pleanála’s decision that block-making at Michael Cronin (Readymix) Limited’s quarry was development that was not exempt from planning requirements.
In a judgment delivered on 15 December 2009, Mr Justice Ryan found that the Board and its inspector had misinterpreted section 4(1)(h) of the Planning and Development Act 2000 and had not properly assessed whether block-making involved a material change of use. The ruling sets aside the Board’s decision; it does not itself determine that the quarry operation is exempted development.
Kerry County Council referred the matter to the Board after raising concerns about block-making at the quarry at Coolcaslagh, Killarney, County Kerry. The company said the work was exempt and argued that quarrying and concrete production had taken place at the site since before the 1963 planning legislation. The Board decided in December 2006 that the operation was development and not exempted development, including on the basis that a two-acre hard-surfaced yard was development and that block production involved an intensification and material change of use.
On the exemption issue, the judge rejected the Board’s view that an extension could not qualify under section 4(1)(h). He said the provision required consideration of the purpose and effect of the works, including whether they altered the structure’s appearance so as to make it inconsistent with its character. The Board had focused on the nature of the work instead of asking the required questions.
The judge rejected the company’s argument that the inspector had to establish a formal baseline for the quarry’s earlier use before comparing it with block production. He said a planning inspector could assess available evidence and infer the extent and implications of change. But he found that the inspector went on to rely on irrelevant or speculative matters, including possible effects on geology, hydrogeology and a potentially important habitat. Those matters undermined the conclusion on material change of use.
He also found that the inspector had confused works with use by assessing whether the concrete surface itself was a material change of use. The relevant question was whether using that area to store, rest or dry blocks in connection with block-making materially changed the land’s use. The court quashed the Board’s decision on those grounds. The notice parties took no part in the proceedings; the judgment does not record a further order on costs.