Planning Law - Exempted development - Whether field drainage or land reclamation - Whether put in a condition available for agricultural use - Undertaking not to use land for specified purpose - Local Government (Planning and Development) Act 1963, section 4(1)(a) - Local Government (Planning and Development) Act 1976, section 27 - Local Government (Planning and Development) Regulations 1994, Part III.

The Supreme Court (The Chief Justice, Mr Justice Keane; Mrs Justice Denham and Mrs Justice McGuinness); judgment delivered ex tempore 6 April 2001.

Reclamation, under article 9(1)(a) of the Local Government (Planning and Development) Regulations 1994, clearly meant that land, which was otherwise not going to be available for significant agricultural use of any sort, was being put in a condition where it would be available for agricultural use by the carrying out of whatever works were necessary. Where the evidence of the case established that what was being done was the construction of a road which had nothing to do with improving the land or reclaiming the land for agriculture, it could not be regarded as field drainage or reclamation of land. The Supreme Court so held in dismissing the respondent's appeal and affirming the order of the High Court.

Dermot Flanagan SC for the applicant; Patrick Butler SC and Gavin Ralston SC for the respondent/ appellant.

The Chief Justice, Mr Justice Keane, said that this was an appeal from a judgment and order of the President of the High Court in which he granted an order pursuant to section 27 of the Local Government (Planning and Development) Act 1976, restraining the respondent from carrying out development other than exempted development on certain lands at Roundwood, County Wicklow, unless and until planning permission had been obtained. In addition, it had been ordered that the respondent, within four weeks from the date of that order, restore the lands to their original condition prior to their damage by the unauthorised development.

The respondent, who was the owner of a farm, had acquired some land called the Coillte lands. In September 1999 he had begun the construction of a road on his land and it was alleged by the applicant, the adjoining landowner, that in the course of so doing the respondent had demolished an existing ditch, had knocked and damaged trees and fencing and had interfered with drainage. In the High Court the applicant alleged that this was an unauthorised development which was damaging and interfering with his lands or damaging the use by him of his lands and therefore he wanted it restrained by the court. No planning permission had been obtained for the development and it appeared that at that stage an undertaking had been given by the respondent that he would not continue the works until the matter had been fully heard by the High Court which it then was.

In the interval, an engineer had carried out an inspection. In the course of the affidavit filed by him, he said that it appeared that the respondent was now making use of the lands for the purpose of a sport called "quad-biking". Mr Justice Keane said that he thought that this was a rural activity more than an urban activity, but it involved driving what were called bikes, which were somewhat more powerful in terms of their propulsion than the ordinary bike or motorcycle, across lands of this nature. In the High Court, the respondent had given an undertaking that he would not use the land for that purpose. The President had accepted this undertaking and made it clear that, in the conclusion he was arriving at, having considered all the affidavits and legal submissions, he was not approaching the case on the basis that any such use would be made of the lands. The Chief Justice stated that it would be unreal to ignore the fact that the respondent was proposing to make use of the land in that manner, even though the President had not found it necessary to make any ruling as to whether any such use in the future would require permission, given that what the President had been principally concerned with was the actual construction of this road.

Mr Justice Keane said that there were two grounds on which the respondent claimed to be carrying out an exempted development, which did not require permission. The first was under section 4(1) of the Local Government (Planning and Development) Act 1963, which exempted development consisting of the use of any land for the purpose of agriculture or forestry including afforestation. In the High Court the President had found that the creation of a path or road was clearly not development consisting of the use of ground for the purpose of agriculture or forestry and the Chief Justice said that that finding was incontestable.

The second basis on which it was claimed that it should be treated as exempted development was because of what was contained in part III of the Local Government (Planning and Development) Regulations 1994. The only part of those regulations which appeared to have been relied on before the President was under article 9(1)(a) which was headed "Land Reclamation Class 9" and which exempted development consisting of the carrying out on land which was used only for the purpose of agriculture or forestry of any of a number of works, the first two being (a) field drainage and (b) land reclamation.

Mr Justice Keane said that the respondent pointed out that there was drainage carried out on the lands and that some of the lands at least were boggy or marshy and in need of improvement or reclamation and that, initially and perhaps as long ago as five years (which would mean that it would not necessarily be a matter which could be restrained at this stage) the respondent carried out drainage works. That involved the removal of soil and effectively all that the respondent was doing was spreading this soil and making a very rough track of some sort which could be regarded as either field drainage or land reclamation or both. Mr Justice Keane said that this submission seemed to founder on the fact that, while the respondent had been carrying out works intended to have some effect on the drainage of the land a few years back, what he was doing now had nothing to do with drainage but was a roadway. It was not a roadway in the sense of a fully public road but was clearly a road which followed the line of the boundary fence. Mr Justice Keane stated that on no view could it be regarded as either field drainage or as reclamation of the land.

The respondent had referred to the decision of Mr Justice Morris in Lennon v Kingdom Plant Hire Ltd (High Court, 13 December 1991, unreported). In that case, a contractor had removed a quantity of boulders from a farm and placed them down at the coast. As part of the deal with the owner of the land, the contractor had re-seeded the land and put back soil. The President in that case had said that one had to look to the objective of the work as a whole and the objective there had been the contractor's necessity to fulfil his obligations. As he was not in the least interested in reclaiming the land and he would not have done it except that it was part of his overall work, there was no reason to treat it as exempted development. The Chief Justice said that he was satisfied that that decision was of no assistance to the respondent in this case because what the respondent was doing was in no sense reclamation in the sense in which that was properly understood. Reclamation clearly meant that land, which was otherwise not going to be available for significant agriculture use of any sort, was being put in a condition where it would be available for agriculture use by the carrying out of whatever works were necessary and that was not what had happened here. On the evidence, the only conclusion to be arrived at was that what was being done was the construction of a road which had nothing to do with improving the land or reclaiming the land for agriculture and that finding was properly made on the evidence before him. The court was not concerned, any more than was the High Court, with the future use of the lands for the "quad-biking" activity because there was in force an undertaking to the High Court that the land would not be used for that purpose. The case, could, accordingly be dealt with on the basis of the works actually carried out to date by the respondent, works which he was obviously proposing to finish carrying out, had the High Court not intervened. For the reasons given, the Chief Justice was satisfied that they were beyond doubt development within the meaning of the Planning Acts, as they did not come within any of the categories of exempted developments, and for those reasons he said he would dismiss the appeal and affirm the order of the High Court.

Mrs Justice Denham And Mrs Justice McGuinness concurred with the Chief Justice.

Solicitors: Gleeson McGrath Baldwin (Dublin) for the applicant; John J. O'Hare & Co (Dublin) for the respondent/ appellant.

Gillian Reid Barrister