The High Court quashed Kerry County Council’s decision to impose 34 conditions on Kells Quarry Products Limited’s quarry at Knockaneyouloo, Kells, County Kerry, after the operator received less than the minimum six weeks to respond to proposed conditions. The court declined to send the matter back to the council because the statutory period for imposing conditions had expired.
In a judgment delivered on 11 March 2010, Ms Justice Dunne said the council’s letter was dated 29 January 2007 and invited submissions by 16 March. Although that appeared to provide six weeks, the letter was postmarked 9 February and was received by the company on 14 February. The council agreed that the decision should be quashed.
The company had sought certiorari quashing the conditions, declarations concerning the notice period and the council’s compliance with section 261 of the Planning and Development Act 2000, and alternatively, remittal for the matter to be reconsidered. The dispute before the judge was whether the matter could be remitted after the two-year deadline for imposing conditions had passed.
The council said it had been willing to have the matter remitted and argued that the court had power to do so. The company argued that the deadline in section 261(6)(a) had passed, leaving no jurisdiction to reconsider the conditions.
The judge accepted that the court had power to remit a quashed decision in an appropriate case. But she relied on a 2009 High Court decision, Brown v Kerry County Council, as authority that the two-year period was mandatory. As the legislation provided no extension, she said remittal would serve no purpose.
The judgment attributed the loss of the opportunity to impose conditions to the council’s handling of the process: it sent the proposed conditions close to the end of the two-year period and did not post the letter until 9 February. The court therefore granted certiorari and refused remittal. It said the council was precluded from registering conditions under section 261 at that stage.
The judgment also said the result did not give the company unrestricted freedom to operate the quarry. Any material change of use or further development remained subject to normal planning requirements, and the council could take appropriate steps to address breaches of planning law.