Irish Wildbird Conservancy and the Commissioners for the Office of Public Works (applicants) v Clonakilty Golf and Country Club Ltd, Maurice Collins, John Finn, Justin Houlihan, Seamus O'Brien and Vincent Kingston (respondents).

Planning - Injunction - Material contravention of the development plan permitted to allow, development of golf course - Appeal - Appeal allowed and permission refused - Development of land to return it to its former agricultural condition - Application, for order prohibiting unauthorised; development or unauthorised use of the lands - Whether development exempted development - Whether development of lands by laying out golf course exempted, development - Local Government (Planning and Development). Act 1963 (No 28), sections 4, 5, 24 - Local Government (Planning and Development) Act 1976 (No, 20), sections 26, 27 - Local Government (Planning and Development) Regulations 1977 (SI No 65) Third Schedule, Class 26 - Local Government (Planning and Development) Regulations 1990 (SI No 25 article 11 - Local Government (Planning and Development) Regulations 1994 (SI No 86 article 12, Part III, Class 9(f)

European Communities (Environmental Impact Assessment Regulations 1989 (SI No 349) articles 23, 24.

The High Court (before the President, Mr Justice Costello) judgment delivered 23 July 1996.

IF part of a proposed development involves the preparation of a site by clearance, reclamation, draining or otherwise and if the development is halted after some or all of this preparatory work has been completed because An Bord Pleanala has decided that the proposed development was not exempted development, then the preparatory work which is part of the proposed development is also non exempted.

Where no claim for exemption under Class 9(f) of the 1994 Regulations can be made, neither can a party claim only exemption under any of the other subparagraphs of this class. Once the development consists of the special type of land reclamation to which paragraph (f) applies (for which no exemption is permitted) a developer cannot claim exemption under the general rubric "land reclamation in sub paragraph (b) because to construe the regulation to permit him to do so would nullify the protection of the environment and the ecology of estuarine marsh land which sub paragraph (f) is designed to achieve.

The High Court so held in granting the applicants relief under section 27 of the 1992 Act.

Aongus O Brolochain SC and David Nolan BL for the first named applicant: Eamon Galligan BL for the second named applicant James Macken SC and Kieran Hughes BL for the respondents.

MR JUSTICE COSTELLO said that these proceedings were taken by the applicants seeking injunctive relief against the respondents who, the applicants said, were proposing to develop an area known as Cloheen March without the permission required by the planning Acts. The application was originally brought by the Irish Wildbird Conservancy but the Commissioners for the Office of Public Works successfully applied to be joined as a co applicant on the ground that its National Parks and Wildlife Service is vitally interested in the issues involved in the proceedings. The first named respondent, is a company incorporated for the purpose of laying out a golf course on the Cloheen Strand Intake and the other respondents are members and directors of the company, the fifth named respondent being a farmer whose house and lands is beside the site. The issue in the proceedings was whether the development begun in August 1995 by the respondents but stopped a few days later by court order was exempted development" within the meaning of the Acts and Regulations and so did not require permission.

Mr Justice Costello said that to appreciate fully the issues which arose it was necessary to begin the recitation of the relevant facts by referring to a scheme of famine relief which was initiated in the middle of the 1840s in Clonakilty Bay. This was, in effect, a scheme of land reclamation. A causeway was constructed which separated what is referred to as "the intake" from the remainder of Clonakilty Bay and the land was drained. Water entering the site from, the western end was diverted into streams which run along the north and South boundaries of the lands, emptying into the sea outside the causeway. In addition a flapgate was constructed on the bay side of the causeway which allowed the egress of fresh water from the site but stopped the ingress of sea water associated with the incoming tide. In addition drains were constructed on the site itself to assist in its drainage.

The reclaimed land was farmed. It was situated just below the lands of the sixth named respondent and his evidence was to the effect that the land was extensively farmed for upwards of 50 years to about the year 1970 when the then owner emigrated to New Zealand. Following the owner's emigration the banks of the stream at the north and south ends of the site fell into disrepair and the streams flowed directly onto the site and the lands became flooded. In addition the sea flapgate fell into disrepair resulting in the ingress of sea water at high tide. Since 1970 there had been a very considerable alteration in the site. Whilst before 1970 barley and other crops had been grown on the site, since then it had become only fit for what had been termed "rough grazing which, the evidence established, was grazing limited to a small number of horses.

Mr Justice Costello said that on 7 August 1992 the site of approximately 170 acres was put up for sale by public auction. Mr Kingston had decided to bid at the auction but the bidding went beyond a sum he was prepared to pay for it. The auction was interrupted to allow negotiations to take place between his representatives and the representatives of four members of the Clonakilty business community who were interested in its purchase. Agreement was reached and the sixth named respondent and the four persons also interested in the property formed a company known as the Clonakilty Golf and Country Club Limited and the land was purchased by the company for, £96,000. The new company proposed to lay out the lands as a golf course. It considered that such development was exempted by the 1977 regulations. Work was commenced on the site in 1993 without permission but the officials of Cork County Council suggested that the proposed development was not exempted and as a result the Council referred the matter, to an Bord Pleanala under section 5 of the 1963 Act for its opinion. This opinion was given on 16 August 1993 and stated that, having regard particularly to sub paragraph, (iii) of article 11 of the Regulations, the Ia in out of the said lands as a golf course was not exempted development because it was considered that the development would endanger public safely by reason of traffic hazard arising from the considerable additional traffic using, the sub standard crossroad junction at the north eastern corner of the site.

Mr Justice Costello said that the work carried out by the company between 25 March 1993 and, 3 May 1993 consisted of repairing the banks of the stream on the northern and southern ends of the property, cleaning the existing drains running through the site which had become silted up. The material taken from cleaning the drains was left in mounds at the sides of the drains. In addition the flap gate in the causeway was repaired and made functional. Two Hi Macs were hired to do the work. In an affidavit filed in the proceedings, the sixth named respondent had claimed that following the carrying out of the said works the lands again became self draining and became significantly drier over a period of time. In addition the ingress of sea water virtually ceased.

The members of the company were naturally upset by the board's decision and took the matter further. At a meeting of the elected members of the county council held in January 1995 a resolution was proposed and adopted to permit a material contravention of the development plan of the Cork County Council to allow a golf course to be developed on the site, notwithstanding the objection taken to it by the county manager and the planning staff. Thereafter planning permission was granted to the company to lay out a golf course on the site.

This permission was appealed to An Bord Pleanala by the Irish Wildlife Conservancy, the National Parks and Wildlife Service of the Commissioners for the Office Of Public Works, An Taisce, some local residents, and the West Cork Green Party. An oral hearing was held by the board on 30 and 31 May 1995 and on 31 July 1995 the decision of the board was issued allowing the appeal and refusing permission.

In its refusal, it was stated that the Clonakilty Bay estuary is designated in the current Cork County Development Plan as an area of high amenity by virtue of its scientific importance and in particular the protection of the ecology of Cloheen Strand Intake which is indicated as an objective in the development plan. This objective was considered reasonable. It was also considered that the proposed development would contravene materially a development objective indicated in the development plan for the use primarily of the area as an ecological habitat for wild birds and would be contrary to the proper planning and development of the area.

Mr Justice Costello said that the company then took immediate steps to develop the land in a different way. By lease of 8 August 1995 the company leased the site for a five year term to the sixth named defendant. The special conditions of the lease provided that he was to arrange for the hiring of contractors to, return the land to its former prime agriculture condition and the company agreed to discharge the contractors costs, the parties agreeing, that the work would be done within three months from the date of the lease. It was further agreed that the sixth named respondent was to pay an annual sum of £1,000 rent, the company would grant an option to him to purchase the lands at any time after the completion of the works for £500,000. The special condition also contained a clause which permitted the company to serve a six months notice of termination of the lease in the event of it requiring the return of the lands for development purposes.

The day after the lease was granted work commenced on the site. The sixth named respondent had entered into an oral agreement with a contractor to carry out work on the site for a cost of £15,000. The contractor brought onto the site three Hi Macs, an excavator, a bulldozer and two trailers which were used to remove trees and scrub in an area at the northern boundary of the site. Mounds of spoil which had resulted from the earlier cleaning of the drains were moved to the side of the lagoon. It was intended also to remove scrub from the southern part of the site and it was said that when this work was done it was proposed to set 60 acres of winter barley and to re seed the remainder of the lands for the purpose of growing grass and ultimately taking silage from the land. Some of the mounds had collapsed into the lagoon, but the respondents say they did not intend to reclose the mounds as infill.

A warning notice under section 26 of the 1976 Act claiming that unauthorised development was taking place on the land was served on the sixth named respondent by the County Council on 1 August. On 12 August these proceedings began on the ex parte application of the first named applicant an order prohibiting any unauthorised development or unauthorised use of the lands was made and on 6 September the second named applicant was added as co applicant in the proceedings. The proceedings were instituted pursuant to section 27 of the 1976 Act and it was a claim for injunctive relief under that section which was before the court. The interim injunction granted on 12 August had been continued and since that date work on the site had, ceased.

Mr Justice Costello said that the 1986 Cork County Development was in operation when the 1993 and 1995 works were undertaken. It made provision that the ecology of the Cloheen Strand Intake was to be protected. The County Council reviewed, the 1986 plan and has since the institution of these proceedings adopted a new one. The evidence established that one of the objects of the current development plan relating to West Cork which has replaced the 1986 Plan is to protect the ecology of the Cloheen Strand, Intake and this area in the plan is treated as one of high amenity by virtue of its scientific importance.

Mr Justice Costello said that it was not contested that the work which was undertaken in August 1995 was, development, within the meaning of the Planning Acts. But was it "exempted development" as the respondents claimed? Section 24 of the 1963 Act imposes a general obligation to obtain permission in respect, of any "development" of land which is neither exempted development nor any development commenced before the day appointed under the Act. Section 4 makes specific provision for "exempted developments" and in addition empowers the Minister by regulation to provide for any class of development being exempted development for the purpose's of the Act. The respondents claimed that the development they carried out in 1995 was exempted under the express provisions of section 4 and/or ministerial regulations.

The respondents submitted that the development was exempted development by virtue of section 4(1) of the 1963 Act which provides that for the purposes of the Act exempted development includes: "Development consisting of the use of any land for the purpose of agriculture".

The respondents submitted that the work carried out in 1993 and the work carried out in 1995 were both exempted development by virtue of this subsection. Mr Justice Costello stated that "development is given a special meaning in section 3 of the Act. It is defined as either "the carrying out of any works on, in or under land or the making of any material change in the use of any structure or other land."

He said that if the development in question fell within one of these definitions, it could not fall within the other. (See Re: Viscount Securities Limited 112 ILTR 17.)

Mr Justice Costello said that the works which the respondents carried out in 1993 (namely the repairing of the banks of the streams, the cleaning of drains, the repair to the flapgate on the causeway) consisted, in his opinion, in "the carrying out of work on the land" within the meaning of the first limb of the definition, and so it could not be regarded as a mounting to a "material change, in the use of the land" within the meaning of the second limb of the definition. It followed therefore, that the work carried out in 1993 was not "development consisting of the use of and land for purpose of agriculture and was not exempted by section 4. The work earned out in 1995 (consisting of the use of heavy machinery for the purpose of removing scrub and trees and loving mounds of spoil and clearing drains also, in his opinion, consisted in the carrying out of work on the land within the first limb of the definition and so could not properly be regarded as development consisting of the use of land.for the purpose of agriculture within the meaning of the second limb. It, too, was not exempted by section 4.

Mr Justice Costello said that the respondents further claimed that the development which they undertook in March May 1993 was exempted development under the regulations then in force. They referred, to Article 12 of the 1994 Regulations which provides that if development, commenced prior to the coming into operation of Part IV of the 1994 Regulations was exempted by reason of the provisions of Regulations then in force, then the development will continue to be exempted development. They said that this was the situation in this case and accordingly Article 12 applied.

Mr Justice Costello said that the respondents had decided in 1993 to develop the lands by laying out a golf course on them. They had commenced this development between 25 March and 3 May 1993 and then stopped pending the decision of An Bord Pleanala on a reference to it by the county council as to whether the development then taking place was exempted development or not. The board decided that it was not. Mr Justice Costello said that he did not accept the evidence that the purpose for which the work was carried out was to prepare the land for agricultural use and/or to avoid the flooding of neighbouring land. The respondents case to the council and the reference by the council to the board made it clear that the "works" then taking place were undertaken as part of the work necessary to lay out a golf course on the site. The decision of the board had the force of law and meant that the 1993 development could not be regarded as exempted development" under the regulations then in force.

Further Mr Justice Costello could not agree that the development carried out in August 1995 had been commenced in March-May 1993 within the meaning of Article 12 of the 1994 Regulations. The work undertaken in 1995 was, to quote the terms of the agreement under which it was performed, carried out for the purpose of returning the land to its former prime agricultural condition. This "development" was entirely different to the "development" which had taken place in 1993 and so it could not be said that the 1995 development had been commenced prior to the coming into operation of the 1994 Regulations. It followed, therefore, that the respondents could not rely, on Article 12 of the 1994 Regulations and that, unless the work carried out in 1995 was exempted by the 1994 Regulations, themselves, the respondents had been acting illegally.

Mr Justice Costello turned then, to consider whether the 1995 development was exempted by the 1994 Regulations. The applicants case was that these regulations contained no exemption for the development undertaken and proposed by the respondents. They referred to the development which, is exempted in Part III of the Second Schedule which relates to rural exempted developments and in particular to Class 9 which is, headed "Land Reclamation".

This case exempts:

Development consisting of the carrying out, on land which is used, only for the purpose of agriculture or forestry, of any of the following works -

(a) field drainage,

(b) land reclamation,

(c) the removal of fences,

(d) the improvement of existing fences,

(e) the improvement of hill grazing, or

(t) the reclamation of estuarine marsh land or of callows, where the preservation of such land or callows is not an objective of a development plan for the area".

Mr Justice Costello said that the applicants had submitted that the work carried out in 1995, and proposed to be continued if the injunction was lifted, was "the reclamation of estuarine marsh land" and that the preservation of such land was an objective of the County Council Development Plan for the area and that the development was therefore not exempted development under subparagraph (f).

Mr Justice Costello said that it followed therefore, that the respondents could claim no exemption under Class 9(1). Nor could they claim only exemption under any of the other paragraphs of this Class. Once the development consists of the special type of land reclamation to which paragraph (1) applies (for which no exemption is permitted) a developer cannot claim exemption under the general rubric "land reclamation" in sub paragraph (b) because to construe the Regulation to permit him to do so would nullify the protection of the environment and the ecology of estuarine marsh land which subparagraph (1) is designed to achieve.

Mr Justice Costello said that as the respondents had been unable to point to any provision of the 1994 Regulations which granted them exemption he must hold therefore that the development undertaken and proposed to be undertaken by the respondents was not exempted either by statute or regulation and that it was in the absence of permission unlawful.

Mr Justice Costello said that further issues were raised on the applicant's behalf under two further Ministerial Regulations to which he briefly referred. The first arose under (a) the European Communities (Environmental Impact Assessment) Regulations 1989 which provide that State, Authorities before undertaking any development of a class specified under Article 24 of the Regulations must, subject to certain conditions, prepare an environmental impact statement. One of the classes of development specified under Article 24 is water management projects for agriculture, where the catchment area involved would be greater than 1,000 hectares or where more than 50 hectares of wetland would be effected. The applicants then referred to the Local Government (Planning and Developments) Regulations 1990 which provide, that notwithstanding the exemption provisions of the 1977 Regulations development of a class which has been specified under Article 24 of the 1989 Environmental Impact Regulations will not be exempted development. The applicants submitted that the development undertaken in 1993 by the respondents was a "water management, project, for the purposes of agriculture and so was not exempted development under any of the provisions of the 1977 Regulations. It follows they said that the respondents could not rely on Article 12 of the 1994 Regulations to support a claim that permission for the 1995 work was not required because even if the 1995 work had been commenced in 1995 it was not then exempted from the need to obtain planning permission. The applicants also submitted that the 1995 work could also be regarded as a "water management project" as defined in the 1989 Regulations and that such development was not exempted under the 1994 Regulations.

Mr Justice Costello stated that because he had already decided that the respondents could not rely on Article 12 of the 1994 Regulations and that the 1995 work was not exempted development under Clause 9 of Part Ill of the Second Schedule to the 1994 Regulations it was not necessary for him to consider whether the 1993 work and/or 1995 work constituted a "water management project" within the meaning of the 1989 Regulations and what the legal consequences were it did. Accordingly, he held that the applicants were entitled to relief under section 27 of the 1992 Act.

Solicitors: Partners at Law (Dublin) for the first named applicants; Chief State Solicitor for the second named applicant; P. J. O'Driscoll & Sons (Cork) for the respondents.