The High Court quashed An Bord Pleanála’s decision that a planned southward expansion of Roadstone Provinces Ltd.’s quarry into Arklow Rock was development. The court found that the Board had assessed planning impacts without first deciding whether the proposal would change the land’s use compared with its pre-1964 use.
In a judgment delivered on 4 July 2008, Ms Justice Finlay Geoghegan said the Board had therefore erred in law. The order applies to the challenged part of its 26 February 2007 decision concerning the proposed expansion. The court did not decide whether the expansion would, in fact, change the use of the land or amount to development.
The referral began after Wicklow County Council asked the Board to determine whether quarrying at Rockbig, Arklow, was development. The Board had decided that quarrying operations to date were exempted development, while the further southward expansion into Arklow Rock was development and not exempted development. Roadstone sought judicial review of the latter conclusion.
The council’s referral cited concerns that current and planned extraction could remove Arklow Head and alter the local landscape. Roadstone disputed that the head would be removed and argued that there was no material change in use. The judgment records that the council later said the referral was not based on intensification of use.
The court explained that the Board’s task under the referral was to determine whether there would be a material change in the use of the land. It had to decide two questions in sequence: first, as a factual matter, whether the planned expansion would change the land’s use from its pre-1964 use; and only if it would, whether that change was material for planning purposes. The Board had instead inferred a change in use from its view that the expansion would raise new planning issues.
The court did not direct the Board to use any single test when reconsidering the factual question. It said the Board must assess all relevant facts about the land’s pre-1964 use and the planned future use, independently of planning considerations. If it identifies a change in use, it may then consider current planning issues, including the proposed Natural Heritage Area designation, when deciding whether the difference is material.
The part of the council’s referral about the planned expansion remains before An Bord Pleanála for determination in accordance with law. The judgment’s additional views on how the Board might assess the questions were obiter: they were not necessary to the court’s decision to quash.