Judgment: 2008-12-19 · Court archive

High Court rejects quarry operator’s challenge to refusal of explosives transfer document

The court held that a Garda superintendent could refuse the document after receiving information that the quarry’s planning application was based on a no-blasting scenario. It refused the judicial review application.

High Court · [2008] IEHC 428

Who, what, where, when and why

Who
  • M. F. Quirke and Sons (Applicant)
  • Michael Maher (Respondent)
What

The court held that a Garda superintendent could refuse the document after receiving information that the quarry’s planning application was based on a no-blasting scenario. It refused the judicial review application.

Where

Places mentioned in the report

  • Ballahacommane Quarry
  • Ballahacommane
  • Killarney
  • Co. Kerry
When

Judgment:

Other dates in the report
  • 30 March 2007

    After explosives were used at the quarry in March 2007, two adjoining property owners complained to gardaí. They said the company lacked planning permission for blasting. The judgment records that the company and the superintendent agreed explosives had been transferred to and used at the site on 30 March 2007. The superintendent sought advice from the planning authority and Garda legal section before refusing a further transfer document in November 2007.

Why

Reasons reported in the judgment

In a judgment delivered on 19 December 2008, Mr Justice Herbert found that Superintendent Michael Maher could reasonably decide, on the information available to him, that approving the transfer might authorise an unlawful activity. The court did not determine whether the quarry’s planning permission in fact allowed blasting.

The High Court has refused a judicial review application by M. F. Quirke and Sons challenging a Garda superintendent’s refusal to issue a document authorising the transfer of explosives for use at Ballahacommane Quarry, near Killarney, Co. Kerry.

In a judgment delivered on 19 December 2008, Mr Justice Herbert found that Superintendent Michael Maher could reasonably decide, on the information available to him, that approving the transfer might authorise an unlawful activity. The court did not determine whether the quarry’s planning permission in fact allowed blasting.

The company’s 2003 planning permission from An Bord Pleanála restricted site activities to quarrying and related work, but did not expressly prohibit blasting. The permission incorporated plans and particulars lodged with Kerry County Council. Those included an environmental impact statement, which said blasting was not used, and an environmental management system later submitted by the company that stated: “No blasting takes place at this site.”

After explosives were used at the quarry in March 2007, two adjoining property owners complained to gardaí. They said the company lacked planning permission for blasting. The judgment records that the company and the superintendent agreed explosives had been transferred to and used at the site on 30 March 2007. The superintendent sought advice from the planning authority and Garda legal section before refusing a further transfer document in November 2007.

The company argued that the superintendent had exceeded his powers, denied it fair procedures and failed to give adequate reasons. The court held that the planning permission contained no express anti-blasting condition and that the word “quarrying” did not, by itself, exclude blasting. But the permission had to be read together with the submitted documents. The judge found that a reasonable reader would not understand those documents as authorising blasting.

The court said the superintendent was entitled to take account of the planning authority’s view and the company’s own statements in the environmental documents. He was not deciding the planning question himself; he had to assess whether the information supporting the explosives transfer application was sufficient. On the particular facts, the judge found it reasonably open to him to conclude that approval could authorise an unlawful activity.

The judge also rejected the fair procedures challenge. He found the company had been told about the objections and the issue raised before it applied for the further document, and that the superintendent’s stated reason clearly conveyed the basis for refusal. The court therefore refused the application. It made no order granting the document or determining the company’s entitlement to carry out blasting under planning law.

Read the original court judgment

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