H257 Shillelagh Quarries Ltd -v- An Bord Pleanála [2012] IEHC 257 (27 June 2012)

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Cite as: [2012] IEHC 257

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Judgment Title: Shillelagh Quarries Ltd -v- An Bord Pleanála

Neutral Citation: 2012 IEHC 257


High Court Record Number: 2011 154JR

Date of Delivery: 27/06/2012

Court: High Court

Composition of Court:

Judgment by: Hedigan J.

Status of Judgment: Approved




NEUTRAL CITATION NUMBER [2012] IEHC 257

THE HIGH COURT

JUDICIAL REVIEW

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2010 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT 2000 (AS AMMENDED) AND IN THE MATTER OF AN APPLICATION

RECORD NO: 2011/154JR




BETWEEN:

SHILLELAGH QUARRIES LIMITED
APPLICANT
-V-

AN BORD PLEANÁLA

RESPONDENT
SOUTH DUBLIN COUNTY COUNCIL & DUBLIN MOUNTAIN CONSERVATION AND ENVIRONMENTAL GROUP
NOTICE PARTIES

Judgment of Mr. Justice Hedigan delivered the 27th day of June 2012

1. The applicant is a limited liability company carrying on business as the operator of a quarry. Its address is Aghfarrell, Brittas, Co Dublin. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts. The first notice party is the County Council with responsibility for the administrative area of South Dublin. The second notice party is a Conservation and Environmental Group concerned with the Dublin mountains. Their nominated agent is O'Connell & Clarke Solicitors whose address is Suite 124, The Capel Building, Mary's Abbey, Capel Street, Dublin 7.

2. The applicant seeks the following relief:-

      (i) An order of certiorari quashing the decision of An Bord Pleanála ("the Board") the respondent herein, dated the 24th December 2010, bearing South Dublin County Planning Register Reference Number SD07A/0276 and An Bord Pleanála Reference Number PL 06S. 231371 whereby the Board refused permission for:-

        (a) Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964 on a site registered under Section 261 of the Planning and Development Act, 2000 (Quarry Reference SDQU05A/1);

        (b) all existing ancillary facilities including the existing processing plant (crushing and screening plant), overburden storage areas, stockpile areas, water management system and the truck/vehicle partaking area;

        (c) extension of the existing quarry extraction area by 4.2 hectares, within the registered area to give a total extraction area of 15.5 hectares within an overall application area of 28.1 hectares;

        (d) provision of a wheelwash and hydrocarbon interceptor;

        (e) landscaping and final restoration of a site.


      (ii) A declaration that the quarry the subject of the Board's decision (the Quarry) commenced operations prior to the 1st October 1964.

      (iii) A declaration that the quarry is not unauthorised.

      (iv) If required, a stay on any proceedings pursuant to part VIII of the Planning and Development Act 2000 and/ or any proceedings in respect of any alleged breach of planning legislation in respect of the Quarry pending the final determination of the proceedings herein.


Background
3.1 The applicant is the operator of a quarry at Aughfarrell, Brittas, in County Dublin. On the 20th of October 2005, the applicant's agents provided South Dublin County Council with the information relating to the operation of the quarry as required by section 261 of the Planning and Development Act 2000, which deals with the requirement to register quarries. The Council sought further information relating to the operation of the quarry pursuant to section 261 (3) of the 2000 Act. The applicant provided this information. The Council then published a notice in the Irish Times pursuant to section 261(4) of the 2000 Act, advising that the quarry had been registered in accordance with section 261 and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry and inviting submissions regarding the operation of the quarry. A submission was made in response to that notice by the Dublin Mountain Conservation and Environmental Group (the 'DMC&EG'), the second notice party herein.

3.2 On the 19th April, 2006, the Council issued a notice in accordance with section 261(7) of the 2000 Act requiring the applicant to apply for planning permission and submit an environmental impact statement in respect of the continued operation of the quarry. On the 23rd September 2008, a notification issued in respect of the Council's decision to grant permission for the continued use of the quarry subject to conditions. The Dublin Mountain Conservation and Environmental Group lodged a third party appeal in respect of the Council's decision to grant permission and the applicant's agents lodged a first party appeal against five of the conditions of the said decision to grant permission.

3.3 On the 24th December 2010, An Bord Pleanála refused permission in respect of the planning application for the continued use of the Quarry. The reasons for the decision were as follows:-

      "1. On the basis of the submissions made in connection with the planning application and the appeal, the planning history of the site, High Court Judgement Ref. No. [1978] ILRM 85 (Frank Patterson and Eily Patterson v. Martha Murphy and Trading Services Ltd.), and available aerial photography, the Board is not satisfied that the existing quarrying operations presently conducted on site commenced prior to the appointed day, namely, 1 October, 1964, nor are they authorised by a grant of planning permission. Accordingly, the Board is precluded from considering a grant of permission for the proposed development in such circumstances.

      2. Having regard to:-


        (a) the planning history of the site,

        (b) High Court Judgement Ref. No. [1978] ILRM 85 (Frank Patterson and Eily Patterson v. Martha Murphy and Trading Services Ltd.),

        (c) the nature, scale and extent of activities carried out on site,

        (d) the provisions of Section 261 of the Planning and Development Act, 2000, as amended, and

        (e) the judgment of the European Court of Justice in Case C-215/06, Commission v. Ireland, delivered on 3rd day of July 2008, in which it was held that the retention permission system, as it applies in Irish law to projects that are required to be subject to Environmental Impact Assessment under the EIA Directives, does not comply with the Directives,


      It is considered that as the proposed development for which permission is sought is of a class that requires Environmental Impact Assessment in accordance with the requirements of EU Directive 85/337/EEC (as amended) and that it includes a significant element of retention permission, the Board is, therefore, precluded from considering a grant of planning permission in this case."
3.4 The applicant sought leave to apply for judicial review of the decision of Board Pleanála. The applicant made an ex parte application before Mr. Justice Ryan on the 14th February 2011, and the Court decided that the application for leave to apply for judicial review should be conducted inter partes pursuant to s.50A(2)(b) of the Planning and Development Act, 2000 (as amended). The parties subsequently agreed and the Court has directed that a telescoped hearing be held. As such, both the leave and substantive applications are before this Court which may, if it is minded to grant leave to the applicant, proceed directly to a consideration of the substantive issue without the need for a second hearing.

Applicants Submissions
4.1 As this matter is proceeding by way of telescoped hearing the applicant must satisfy the Court that it has met the criteria for the grant of leave to seek judicial review. Section 50 A (3) of the Planning and Development Act 2000, sets out the requirements for leave. It provides that:-

      "The Court shall not grant section 50 leave unless it is satisfied that:-

      (a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and

      (b) (i) the applicant has a substantial interest in the matter which is the subject of the application ..."

The applicant herein was the applicant for planning permission the subject of the Board's decision and the applicant operates the quarry the subject of the Board's decision. The applicant submits that in these circumstances it clearly has the required interest in the matter which is the subject of these proceeding.

4.2 While it was held in An Taisce (The National Trust for Ireland) v Ireland & Ors [2010] IEHC 415 that the mere registration of a quarry does not alter its legal status, that is not the argument that the applicant is making. The applicant submits that the legal authorised status of the quarry was confirmed by the Council by virtue of its decision to require the applicant submit a planning application and EIS for the continued use of the quarry. Once that determination was made the consequential planning application has to be assessed on that basis and that determination could not be questioned unless by way of Judicial Review pursuant to section 50 of the 2000 Act. Section 261(7) sets as a precondition for its application that "the continued operation of a quarry ... that commenced operation before 1 October 1964". Thus the applicant submits that the Council must have been satisfied that the quarry in the instant case was materially the same as that which commenced prior to the appointed day.

4.3 The Councils notice requiring the applicant to apply for planning permission warned the applicant that if it failed to apply for planning permission as required the quarry "shall be unauthorised". The implication being, of course, that where the required application is made the quarry shall not be unauthorised. In a letter which the Council sent on the 18th April 2006 it stated:-

      "Having considered the information provided in the registration application submitted, including the additional information received on 27th September 2005, and the correspondence received from John Barnett & Associates dated the 7th April 2006 submitted by way of response to the Council's letter to you dated 21st February 2006 ... the Planning Authority is satisfied that the extracted area of the subject quarry exceeds 5 hectares and that the subject quarry commenced operation before 1st October 1964 ..."
Thus, having considered all the information relating to the operation of the quarry that was put before it in the course of the registration process, the Council were satisfied that the "subject quarry commenced operation before 1st October 1964". This information included three statutory declarations including one from a former Dublin Council Engineer in charge of road maintenance confirming the operation of the Quarry before 1st October 1964.

4.4 Comprehensive information is provided before a planning authority makes its determination under s. 261(7). In O'Reilly v Galway City Council [2010] IEHC 97, Charleton J. made the following observations in relation to the information to be provided at p. 23:-

      "This means all relevant information which would enable the planning authority to exercise any of its functions under ss. 4, 5, 6, 7 or 8. Because the planning authority is entitled to modify an existing planning permission under subs. 4 or 5, or to require the making of a new planning application under the same subsections, it is clear that the information to be provided must be fulsome."
It follows that some degree of measured consideration of what was before the Council was necessary. Of course the County Council has a bank of knowledge and experience going back over some years concerning the matters in question.

4.5 On the 24th December, 2010, the Board decided to refuse permission in respect of the planning application for the continued use of the quarry. It is clear from the Board's reasons and considerations that the board disagreed with the Council and was not satisfied that the quarry commenced prior to the appointed day, namely, 1st October, 1964. Thus the Board was of the view it was unauthorised development. For this reason, the Board decided that it was precluded from considering a grant of planning permission. The applicant submits that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the Board to go behind that determination when considering the consequential planning application. If this was not the case the provision of section 261(8) (b) would be anomalous, it provides:-

      "Where, in relation to a quarry to which subsection (7) applies, a planning authority, or the Board on appeal, refuses permission for development under section 34 or grants permission there under subject to conditions on the operation of the quarry, the owner or operator of the quarry shall be entitled to claim compensation under section 197..."
The applicant submits that it could never have been the intention of the Oireachtas to allow the owner of an unauthorised quarry to apply for planning permission and upon refusal to be entitled to claim compensation.

4.6 The applicant submits that the Board's decision was a direct attack on the validity of the Council's determination and that in the absence of a challenge by way of Judicial Review pursuant to section 50 of the 2000 Act (for which the time had long passed) the Board was not entitled to question the validity of the Council's determination and it had to make its decision on the premise that the quarry commenced operation prior to 1st October 1964. If the Board had proceeded on this basis it could not have concluded that the quarry was unauthorised and would not have concluded that it was precluded, by virtue of such unauthorised status, from considering a grant of planning permission. In essence the Board trespassed into the Council's jurisdiction and considered a matter that it had no jurisdiction to consider, i.e. whether the quarry commenced operation period to 1st October 1964.

4.7 A fundamental error was made by the Board was in considering that the planning application before it "includes a significant element of retention permission". The Board only came to this view because it disagreed with the Council's view that the quarry commenced operation before the 1st October 1964. The judgment of the European Court of Justice in Case C-215/06, Commission v. Ireland, delivered on 3rd day of July 2008, concerning the retention permission system as it applies in Irish law does not preclude the Board from considering a grant of planning permission for the continued operation of a Quarry which up to the time of the Board's decision is not unauthorised. In considering that it was "precluded from considering a grant of planning permission in this case" the Board made an error of law. The Department of the Environment, Heritage and Local Government in its Circular PD 6/08 dated the 8th October, 2008 provides that:-

      "It is the Department's understanding that a notification [that a planning permission is in breach of Case C-215/06, Commission v. Ireland] need not be made in respect of a permission granted since 3rd July for the continued operation of a quarry in respect of which an application for planning permission was made under and in strict accordance with section 261(7) of the 2000 Act, i.e. an application, with an environmental impact statement, made within such period as was specified by or agreed with the planning authority for the purposes of the subsection in respect of a quarry that commenced operation before 1 October 1964. (By extension, any such application currently being processed may proceed to determination)."
The applicant submits that because the Board's decision is based on an identifiable error of law it should be quashed.

Respondents Submissions
5.1 The parties have agreed and the Court has directed that a telescoped hearing be held. The applicant must satisfy this Court that it has met the criteria for the grant of leave to seek judicial review. In order to be granted leave to seek judicial review pursuant to sections 50 and 50A of the Planning and Development Acts 2000-2010, the applicant must satisfy the Court that it has both substantial grounds and a substantial interest. The respondents submit that the applicant does not have substantial grounds.

5.2 In this case South Dublin County Council required the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with s. 261(7). Requesting the above application involves the planning authority reaching a decision per s. 261 (7) (a) (ii) that the quarry commenced operations before 1st October 1964. The applicant maintains that this means that the Board is precluded from reaching a conclusion other than that the quarry commenced operations before 1st October 1964 and that it was and remains, "not unauthorised". The respondent submits that this is not correct. In Pierson and Others v. Keegan Quarries Limited [2009] IEHC 550 Irvine J offered a detailed analysis of the function and purpose of s.261 and, in particular, approved the following from Simons, Planning and Development Law (2nd Ed., Dublin: Round Hall, 2007) at para. 8.136 where he states:-

      "The effect of registration is simply to ensure that the planning authority and members of the public, have sufficient information to allow the question of what renewed controls, if any, should be imposed to be addressed."
Irvine J also held:-
      "... If the quarry constituted unauthorised development at the start of the s. 261 process, its registration subject to conditions does not, in my view, alter its status..."
5.3 The applicant claims that the Board has erred in deciding that the quarry constitutes unauthorised development. The applicant seeks a declaration that the quarry commenced operations prior to the 1st October 1964 and a declaration that the quarry is not unauthorised. The respondent submits that a distinction must be drawn between quarrying activity which may have commenced prior to the 1st October 1964 and which has carried on without an intensification and quarrying activity which may have similarly commenced, but which has since that time, intensified so as not to benefit from any exemptions by reason of its pre 1st October 1964 origins. The respondent further submits that account ought be taken of the nature of the jurisdiction this Court is being asked to exercise and the respective functions of this Court and an expert decision making body such as the Board, in a technical field such as planning. In particular, a decision as to whether or not an intensification involves unauthorised development requires the application of specialist planning considerations.

5.4 The applicant's quarry was the subject of the decision of Costello J. in Patterson v Murphy [1978] ILRM 85. That case concerned an application by then residents of Shillelagh Lodge (a residence near the Quarry) for an injunction against Martha Murphy and Trading Service Ltd in respect of the carrying on of quarrying activities on the site. Costello J. found as a fact that the operations then carried out at the quarry were so different to those carried on prior to the 1st October 1964 that it could not be said that the development had commenced prior to the appointed day. The Board had before it the text of Patterson v Murphy [1978] ILRM 85 when reaching its decision.

5.5 The applicant maintains that by reason of steps taken by South Dublin County Council pursuant to s.261 of the Planning and Development Act, 2000 the Board is precluded from determining that the Quarry constitutes unauthorised development. Specifically, it is maintained at Ground E.12 that "this issue had already been decided by...South Dublin County Council by its decision of the 18th April2006 pursuant to s.261(7)(a) of the 2000 Act, which decision was not judicially reviewed and is thereby res judicata." It is further contended that "this part of the reason" (i.e. that the existing quarrying operations presently conducted on site did not commence prior to the appointed day, namely 1st October 1964) constitutes "a collateral attack on this decision outside the statutory time limit and thus "it is ... submitted constitutes an error in law". It was held in An Taisce v Ireland [2010] IEHC 415 that "the mere registration of a quarry does not establish a pre 1964 use." Therefore there is no basis for the argument that the Board was precluded from determining its status to be unauthorised.

Decision of the Court
6.1 The applicant is the operator of a quarry at Aughfarrell, Brittas, in County Dublin. On the 20th October 2005, the applicant applied to register its quarry and as required by section 261 of the Planning and Development Act it provided the Council with the relevant information relating to the operation of the quarry. The Council published a notice pursuant to section 261(4) of the 2000 Act, advising that the quarry had been registered and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry. The Council invited submissions in this regard. A submission was made by the Dublin Mountain Conservation and Environmental Group the second notice party herein. On the 19th April, 2006, the Council issued a notice in accordance with section 261(7) of the 2000 Act requiring the applicant to apply for planning permission and submit an environmental impact statement in respect of the continued operation of the quarry. On the 23rd September 2008, a notification issued in respect of the Council's decision to grant permission for the continued use of the quarry subject to conditions. The Dublin Mountain Conservation and Environmental Group lodged a third party appeal in respect of the Council's decision to grant permission and the applicant's agents lodged a first party appeal against five of the conditions attached to the said permission. On the 24th December, 2010, An Bard Pleanála refused permission in respect of the planning application for the continued use of the quarry. The applicant made an ex parte application for leave to apply for judicial review of the decision of Board Pleanála. The Court decided that the application for leave to apply for judicial review should be conducted inter partes. The parties subsequently agreed and the Court has directed that a telescoped hearing be held. As such, both the leave and substantive applications are before this Court. In order to be granted leave the applicant must show that there are substantial grounds for contending that the decision concerned ought to be quashed.

6.2 Section 261 of the Planning and Development Act, 2000 requires the owner or operator of a quarry to provide particular information pertaining to such quarry to the relevant planning authority. Once such information is received, the planning authority who then registers the quarry must publish notice of the registration in one or more newspapers circulating in the area within which the quarry is situated. The planning authority may as was done in this case indicate in this notice that it is considering, in accordance with s.261(4)(iii)(II), requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with s.261(7). That sub-section provides where the continued operation of a quarry with an extracted area which is greater than 5 hectares, or that is situated on a European site or any other area prescribed and that commenced operation before 1st October 1964, would be likely to have significant effects on the environment a planning authority shall require, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority.

Requesting that a planning application be made and an EIS be submitted involves the planning authority reaching a decision per s.261 (7) (a) (ii) that the quarry commenced operations before 1st October 1964. The applicant argues that this means that the Board was precluded from concluding that the quarry commenced operations before 1st October 1964. This contention was expressly rejected in An Taisce v Ireland [2010] IEHC 415 Charleton J. held that:-

      "Further, the mere registration of a quarry does not establish a pre-1964 use. The statement is a legal error. Nor was there anything before the Board which established that there had been no intensification of use since that time.... It is settled as a matter of law that the registration of a quarry under s. 261 does not alter its status."
In that case the Board had considered that the pre-1964 status of the quarry had been established and accepted in the registration of the quarry. Charleton J. held that this was a "legal error" and the Board was obliged to carry out its own assessment of the planning status of the quarry in that case.

6.3 The applicant claims that the Board has erred in determining that the existing quarrying operations presently conducted on site are unauthorised development. I accept the respondents submission that there is a difference in planning terms between quarrying activity which may have commenced prior to the 1st October 1964 but which has carried on without an intensification and quarrying activity which may have similarly commenced, but which has since that time, intensified so as not to benefit from any exemptions by reason of its pre 1st October 1964 origins. I gratefully adopt the statement of Charleton J in An Taisce v Ireland [2010] IEHC 415, at para.3:-

      "...Upon the coming into force of the planning code on the 1st October 1964, there were many quarries which had an entitlement to continue with their operation in a proportionate fashion. The Oireachtas made a decision that all such quarries should be registered and, when their operation had been properly analysed by local planning authorities as to the information which must be supplied for this process, quarries might need to be further regulated beyond the restrictions that the commencement of operations prior to 1st October 1964 would have necessarily attracted. In that context, I have referred to the continuance by a business or a quarry, on a proportionate basis, of operations on the implementation of the first planning code. By this I mean that no quarry would have been entitled to intensify the use of its operations after that date so as that intensification of use amounted to change of use and which had an impact, proven directly or by necessary implication, on planning considerations for the area in which it is situate..."
Clearly intensification can amount to a change of use thus requiring a planning application.

6.4 In the period since 1964 there has been very substantial intensification of use of this quarry. Indeed the intensification of use was considered by the High Court in 1978 in the case Patterson v Murphy [1978] ILRM 85 where Costello J held as follows with regard to user in the period between 1964 and 1978:-

      "The present operations differ materially from those carried on prior to 1st October 1964. I have reached this conclusion bearing in mind the following considerations. The object of the present operations is to produce a different product to that being produced in 1964. As stated in the parties agreement, the operations are designed to manufacture stone. The 4 inch stone now being produced is different to shale; it is used for a different purpose in the building industry, and it fetches a different price. The method of production is different to that obtaining in and before 1964. The raw material (rock) for the end product is now obtained by means of blasting and this is done on a regular basis. Large crushing and screening plant is used to produce stones of the correct dimension. Considerable ancillary equipment is used and a considerable labour force employed. Finally, the scale of operations is now a substantial one, and bears no relationship to the scale of operations carried on prior to the appointed day."
The Court is informed by Counsel for the Board that there has been a 15 fold intensification of operations since the 1970's. The quarry now covers 48.5 hectares, it has an extraction rate of 500,000 tonnes and there are 200 vehicle movements per day. In short it is very different from the primitive operation that was carried on pre 1964.

6.5 In addition to having the text of Patterson v Murphy [1978] ILRM 85 before it, the Board also had before it the Inspector's Report. The Inspector states as follows at page 40:-

      "...I am of the view that the existing operation bears little resemblance to the pre- 1964 development carried out on site...Having concluded that the existing operation is development which does not have the benefit of pre-1964 status and in the absence of any grant of planning permission authorising same, in my opinion, the existing quarry operation constitutes unauthorised development and thus the Board is precluded from considering a grant of permission in this instance".
It seems to me that there was compelling evidence before the Board upon which it could reach the conclusion that although the quarry had commenced prior to the 1st October 1964 there was intensification of use such that there was no entitlement to an exemption.

6.6 The applicant argues that the Board erred by characterising the application as one for retention and taking the view that the decision of the European Court of Justice in Case C-215/06 Commission v Ireland precluded the grant of permission herein.

The effect of the applicant's submission is that if the label of retention is not used the decision in Case C-215/06 Commission v Ireland does not apply. I agree with the respondents submission that whether or not the word "retention" is used, the substance is the same here as in the case of retention permission. Development, which would otherwise be required to undergo the EIA process, cannot be given ex post facto development consent under EU Law. In this case planning permission was being sought for inter alia, "Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964". To grant planning permission would therefore have been to give development consent for a matter which was required to undergo the process of an EIA. The applicant seeks to rely on the provisions of Circular PD 6/08 exhibited at TM3 which provides:-

      "It is the Department's understanding that a notification need not be made in respect of a permission granted since 3rd July for the continued operation of a quarry in respect of which an application for planning permission was made under and in strict accordance with s.261 (7) of the 2000 Act, i.e. an application, with an environmental impact statement, made within such period as was specified by or agreed with the planning authority for the purposes of the sub-section in respect of a quarry that commenced operation before 1 October 1964 (By extension, any such application currently being processed may proceed to determination)."
The Board, however, has determined that the existing quarrying operations did not commence prior to the 1st October 1964 in any sense with attracts the pre 1st October 1964 status as otherwise-than-unauthorised. Thus the Board has determined that the quarry does not benefit from any pre 1st October 1964 status. It is not a quarry that commenced operation before 1 October 1964 in any sense which renders it exempted development.

6.7 To summarize, Firstly I do not accept the argument that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the Board to go behind that determination when considering the consequential planning application. The mere registration of a quarry does not establish a pre-1964 use. In fact not only is the Board entitled to look at the planning status of the quarry, it is obliged to carry out its own assessment of the planning status of the quarry.

Secondly, I am satisfied that there was evidence before An Bord Pleanála upon which it could reach the conclusion that the quarry operations intensified since 1964. This fact was the clear finding of Costello J in Patterson v. Murphy [1978] ILRM 85 (cited above) Such an intensification amounted to a change of use disentitling the applicants to an exemption on the basis of pre 1964 status. Thirdly, it seems to me that the Board was entitled to conclude that the permission sought included a significant element of retention permission, and to take account of the case C-215/06 Commission v Ireland. The permission sought was for the continuance of use of the existing quarry.

This matter proceeded by way of telescoped hearing. For all the above mentioned reasons I am not satisfied that the applicant has shown that there are substantial grounds for contending that the decision concerned ought to be quashed. Leave is therefore denied.


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