The High Court has refused Frank Harrington Limited’s judicial review challenge to An Bord Pleanála’s refusal of retention permission for replacement quarry plant and two ESB substations in County Mayo.
The Board refused permission on 11 July 2008, concluding that the quarry had begun operating after 1 October 1964 and was unauthorised. It said granting permission for the works would facilitate the continuation of unauthorised development. Mr Justice Hedigan delivered judgment on 23 November 2010.
The company argued that quarrying had taken place on the land before 1964 and was exempt from planning permission. Its director, Frank Harrington, said he had worked the land with his father in 1963. The company also argued that the Board had no power to consider the quarry’s planning status, that the evidence did not support its conclusion, and that the Board should have circulated responses to its requests for submissions and sought a further inspector’s report.
The court found that the Board could take the underlying quarry’s planning status into account when deciding whether to permit works associated with it. It noted that the company’s application to register the quarry had stated that quarrying began around May 1984. The Board had also received responses from An Taisce, Mayo County Council and notice party James Leonard supporting the view that the quarry did not have pre-1964 status.
The judge said the company’s description of the 1984 date as a mistake was not adequately explained. Its account of work before 1964 lacked detail about the area worked, boundaries, continuity and scale of operations. The court held that quarry registration under section 261 of the Planning and Development Act 2000 did not establish that the quarry had pre-1964 status or make an unauthorised quarry authorised.
The court also rejected the procedural complaints. It found no legal obligation to ask the inspector for a recommendation on the section 137 responses. The company had not shown what it would have said in reply to those responses or how that could have affected the decision. The Board’s reference to “Frank Harrington” rather than the company was a minor error, and its reasons for refusing permission were clear despite being brief.
The court did not rule on the respondent’s separate argument based on a European Court of Justice decision, saying it was unnecessary to do so. It refused the application for judicial review; the judgment did not grant any of the relief sought by the company.