Hardship due to respondent's behaviour not a ground for refusing planning order

In the Matter of an Application pursuant to the Local Government (Planning and Development) Acts 1963 to 1998.

And in the Matter of an Application Pursuant to Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by section 19(4) of the Local Government (Planning and Development) Act 1992.

Kathleen Curley, Anne Coady and Desmond Rooney (applicants) v The Mayor, Aldermen and Burgesses of the City of Galway (respondents).

Local Government - Planning - Breach of conditions upon which planning permission granted - Nature of order made by An Bord Pleanala - Whether court will permit the fulfilment of a statutory obligation by the commission of offences under the planning legislation - Circumstances in which the court will refuse an order restraining a respondent from carrying out a development in breach of its planning permission - Local Government (Planning and Development) Act 1992 section 19(4)(g).

The High Court (before Mr Justice Kelly); judgment delivered 11 December 1998.

Although a court may withhold an order restraining a respondent developer from carrying out a development in breach of its planning permission where there would be gross or disproportionate hardship, such hardship will carry little weight if brought about by the conscious behaviour of the respondent.

The High Court so held in granting orders against the respondents, restricting the use of a site as a dump and restraining them from acting in breach of the conditions attached to a planning permission.

Edward Walsh SC and Michael O'Donnell BL for the applicants; Hugh O'Neill SC and John G. O'Donnell BL for the respondents.

Mr Justice Kelly set out the facts stating that the respondents were a local authority and planning authority. They were sued as the developer of lands situate in the functional area of Galway County Council, by the applicants, who were residents of the Carrowbrowne area of County Galway. The application concerned a dump situated at Headford Road, Carrowbrowne, County Galway. In November 1995 Mr Justice Keane made an order closing down part of the dump because of the failure of the respondents to comply with certain obligations imposed upon them on foot of a planning permission obtained in respect of the dump.

Thereafter a fresh application was made in respect of the site, seeking permission to use it as a dump for a period of five years. The application was dealt with by the planning authority, Galway County Council, and resulted in a permission being granted which, in turn, was appealed to An Bord Pleanala. The board granted planning permission, which permission was the subject matter of these proceedings. The planning permission, which was dated 9 April 1997 and which was to come to an end in April 1999, was subject to conditions.

The applicants contended that there had been, and continued to be, many breaches of the conditions upon which the permission was granted. Perhaps the most important of the conditions was No 6, which provided that rehabilitation measures should be installed and operational within a period of one year from the date of the permission and that no landfilling should take place at the site after one year unless and until all rehabilitation measures required were installed and operational to the satisfaction of Galway County Council. Many of the requirements were not complied with in the period specified and indeed had not been complied with as at the date of the hearing.

Mr Justice Kelly said that the respondents ought to have ceased landfill no later than 9 April 1998 and that the respondents accepted that they had been in breach of this condition and that insofar as they had not complied with it, they had been involved in the commission of a criminal offence.

Further, condition No 8 required that the respondents, within three months from the date of the permission, agree with Galway County Council a phased programme for the landfilling and landscaping of the site over the two-year period. The respondents had not, even to the date of the hearing, obtained the agreement of the county council for the programme for landfilling and landscaping. The respondents stated in an affidavit, that having sent details to Galway County Council on 18 June 1997, they were still awaiting a response in December 1998. Mr Justice Kelly stated that the approach of the respondents left a very great deal to be desired, particularly as it emanated from a body which was itself a planning authority in its own functional area and responsible for the enforcement of planning control.

On the evidence before him Mr Justice Kelly was satisfied that the respondents were in serious breach of the planning laws and had been guilty of a deliberate and conscious violation of the terms of the planning permission.

In their defence, the respondents criticised the applicants, a criticism which was wholly unjustified, and went on to criticise An Bord Pleanala. The respondents averred that they had understood that it would take 18 months to two years to comply with condition No 6, that they were completing the required works within the contemplated time frame, that is to say, their own time frame, and that it proved impossible for them to comply with the one-year period as arbitrarily decided by Mr Clohessy, a member of An Bord Pleanala. Mr Justice Kelly stated in relation to this averment that, firstly, if the respondents were dissatisfied with the order of the board they had rights and remedies available to them; they choose not to exercise any of these rights but rather to operate on foot of their permission. Secondly, it showed a lack of understanding for the way in which An Bord Pleanala conducted its business. An Bord Pleanala made its orders as a board, they were not made by an individual member of the board.

The behaviour of the respondents was perhaps influenced by the fact that Galway County Council appeared to have taken no steps whatsoever to ensure compliance with the planning permission granted by An Bord Pleanala. The silence from the county council was a silence which appeared to permeate its relationship with the respondents.

When it became clear to the respondents that they were not going to be able to comply with condition No 6 they had no lawful entitlement to continue to allow the site to be used for landfilling as to do so was to breach the permission and to involve themselves in the commission of criminal offences under the Planning Acts. It was open to them to apply to Galway County Council for a fresh permission, at that time or well in advance of April 1998, but they did not do so.

Mr Justice Kelly stated that the position of the court had been authoritatively set out by the Supreme Court in Morris v Garvey [1982] ILRM 177, where Mr Justice Henchy held, in relation to section 27(2) of the Local Government (Planning and Development) Act 1976, as substituted by section 19(4)(g) of the Local Government (Planning and Development) Act 1992, that if the subsection were to be treated as merely giving the court power to interdict a continuance of the development in an unauthorised manner, the jurisdiction given by the subsection would be self-defeating and would run contrary to the expressed purpose of the subsection, which was to ensure that a development was carried out in accordance with the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period of time, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating factors), before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as was necessary to ensure that the development was carried out in conformity with the permission.

The respondents contended that the court ought to withhold its order for a number of reasons. The first related to difficulties encountered in the respondents' endeavours to comply with the permission. Mr Justice Kelly stated that the difficulties would not have arisen had the respondents involved themselves in the exercise of planning in good time for waste disposal and that they should have applied for a fresh planning permission.

Secondly, it was submitted that the making of an order would give rise to difficulties for the respondents in complying with their obligations under, for example, the waste management legislation. Mr Justice Kelly was of the view that the court could not permit the fulfilment of a statutory obligation by the commission of criminal offences under the planning legislation.

Finally it was contended that the granting of an order would give rise to very considerable inconvenience to the citizens of Galway in disposing of their waste. Mr Justice Kelly stated that an order could be withheld in cases of genuine mistake or where there had been acquiescence for a long period of time on the part of the applicants or where the infraction concerned was a mere triviality or technicality . None of the preceding situations applied in this case. An order could also be withheld if gross or disproportionate hardship occurred, but hardship carried little weight if brought about by the conscious behaviour of a respondent to the proceedings. Whilst the respondents had demonstrated activity to deal with their problems in the relatively recent past, it had been wholly insufficient to meet the situation with which they were confronted. Mr Justice Kelly concluded that it would be entirely wrong to withhold an order, particularly as the respondents, who were a planning authority themselves, were in gross breach of their obligations.

Mr Justice Kelly therefore made an order forthwith restraining the use of the site for dumping, save in respect of material from refuse trucks operated by the respondents, which form of dumping had to cease one month from the date of the judgment of the court. The reason why that concession was reluctantly granted was out of concern, not for the respondents, but for the citizens of Galway, who might otherwise find themselves with great difficulties over the Christmas period.

The applicants sought an order restraining the respondents from acting in breach of the conditions of their planning permission. The court was of the view that the respondents must continue to service the dump by carrying out the obligations imposed on them under the planning permission so as to ensure that the cure was not worse than the disease. The applicants also sought an order restraining the respondents from using the lands until the conditions of the planning permission had first been complied with. The court did not grant such an order but gave liberty to both sides to apply.

Mr Justice Kelly was of the view that an order should be made restraining the respondents from acting in breach of the conditions attached to the planning permission. This meant that the respondents would be obliged to provide servicing and that they would have to obtain the agreement of the planning authority in respect of conditions Nos 5 and 8. Insofar as it was required anywhere in the planning permission, the agreement of Galway County Council would need to be procured within a month of the date of the judgment. The respondents would continue to provide whatever servicing was required so as to minimise environmental and ecological damage.

Mr Justice Kelly refused an application for a stay of the order for the purpose of an appeal to the Supreme Court and awarded the applicants their costs.

Solicitors: Fionnuala Cawkhill & Associates (Dublin) for the applicants; Blake & Kenny (Galway) for the respondents.