THE HIGH COURT
		1996 No. 45 M.C.A.
IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1976 AS AMENDED AND EXTENDED
BETWEEN
THE COUNTY COUNCIL OF THE COUNTY OF KILDARE
		APPLICANT
AND
THOMAS P. GOODE AND THERESA GOODE AND
GOODE CONCRETE LIMITED
		RESPONDENTS

Judgment of Mr. Justice Morris delivered on the 13th day of  June 1997.
	
1	This matter comes before the Court as an Application under Section 27 of the Local Government (Planning and Development) Act, 1976 as amended and extended.  
	The Respondents are extracting sand and gravel from a pit on lands at Broadleas, Ballymore Eustace in the County of Kildare.  Issues have arisen as to the Respondents' entitlement to do so.  However, before embarking on those issues a fundamental preliminary issue has arisen in this case which I am of the view should be determined before going further.  This issue arises from the Respondents challenging the Applicant's Notice of Motion.  The Respondents submit that even if everything alleged by the Applicant is correct then what would have been established is that they are carrying out a "development" on the lands without permission.  They allege that they are not "using" the lands within the meaning of the Local Government (Planning and Development) Act.  They allege that since the Applicant seeks an Order restraining them from "using" the lands that the proceedings are misconceived and that the Court should refuse the Application.
	The following is a summary of the facts in so far as they are relevant to the preliminary issue.
	The lands in question comprise approximately 56 acres and were acquired by the Respondents at auction on or about the 12th March, 1991.  The sale was completed on or about the 26th /27th April, 1991.  A sand and gravel pit was believed to have existed on the lands prior to the auction and on completion the Respondents stripped back the top soil and commenced to extract sand and gravel from the lands.
	The lands are situate in an area of high amenity and of scenic beauty and complaints were received by the Applicant from residents in the locality.  On 29th April, 1991, Mr. Gerard Roche who is in the Applicant's Planning Section inspected the lands and spoke to Mr. Goode, the first named Respondent.  On 30th April, 1991 a warning notice under Section 26 of the 1976 Act was served on the Respondents and on 1st May, 1991 a letter was received from Mr. Goode in which he made the following comments:-

	"(1)	I am confirming the established use of a gravel pit at Broadleas, Ballymore Eustace, Co. Kildare.  The essence of a gravel pit has been there and indeed used on and off since the 1930's.
	(2)	I am in the process of tidying up the gravel pit at the moment so that it can become usable and manageable.
	(3)	If and when I extend the pit or erect offices I will of course apply for planning permission as it is necessary.
	In the meantime I am preparing an Application for an extension of some 7 to 7½ acres.  This ought to be lodged with the Council within the next fortnight."

	An Application for planning permission was made on the Respondents behalf on 7th February, 1992.  This permission was refused on the 2nd April, 1992.  There was no appeal from this refusal.
	The extraction of sand and gravel from the lands was discontinued by the Respondents until April of 1995 when work recommenced and on inspection a mechanical shovel and screen were found to be in use on the lands.  On 6th June, 1995 a second warning notice was served on the Respondents.
	By Notice of Motion dated 27th May, 1996 the Applicant applied to the Court for an Order:-

	"(a)	Restraining the Respondents from using the lands at Broadleas, Ballymore Eustace in the County of Kildare the subject matter of the proceedings;
		(i)	for the purpose of extracting sand, gravel and other materials therefrom;
		(ii)	from continuing the preparation of the said lands for the aforesaid purpose;
		(iii) 	for the constructing on the said lands of artificial berm;
		(iv)	from carrying out work incidental to the preparation and construction of the use of the lands for the purpose of winning, preparing, extracting and removal of sand and gravel and such like materials from the said land.
	(b)	Directing the Respondents to remove from the said lands a substantial quantity of concrete blocks which have been deposited on the lands.
	(c)	Directing the Respondents to replace top soil which has been removed along the southern boundary of the said lands and to remove two signs which have been erected at the junction of the adjoining public road with the lane-way which leads to the said lands and at a new recessed entrance constructed on the said lands and the said entrance.
	(d)	Directing the Respondents to re-instate the said lands to the condition in which they were prior to the commencement of the unauthorised use which is and has been made of the said lands.
	(e)	Directing the Respondents to pay the Applicant's costs and expenses of the proceedings.
	(f)	And for such further and other Order as the Court may seem fit."

	The submission made by Counsel on behalf of the Respondents can, I believe, be summarised as follows:-
	It is submitted that Section 27 of the Act as amended by the Local Government (Planning and Development) Act, 1992 enables a Planning Authority or any other person to seek an Order from the High Court or the Circuit Court where:-

	"(a)	Development of land, being a development for which a permission is required under Part 4 of the principal, Act has been carried out or is being carried out without such permission, or
	(b)	an unauthorised use is being made of the land."

	It is the submission of Counsel on behalf of the Respondent that if there is an unauthorised taking of sand and gravel from this land then this amounts to an unauthorised development of the land and not an unauthorised use.  Accordingly, since the Applicant has sought an Order restraining the Respondent from "using" the lands for the purpose, they have sought the relief under the wrong subsection.  
	In my view, the law on this aspect of the case is well settled.  In Patterson -v- Murphy, 1978 I.L.R.M. p.85 at p.104, Costello J. refers to the "two distinct and separate situations" envisaged by Section 27.  They are:-
(a)	Where development is being carried out without permission, and
(b)	Where an unauthorised use is being made of land.
	He goes on to refer to the decision of Finlay J., as he then was, in In Re: Viscount Securities Limited 112 I.L.T.R. 17 where it is pointed out that the words "development" and "use" have been given an artificial meaning by Section 2 of the Act of 1963 and goes on:

	"As it does not include, when used in relation to land, the carrying out of 'works' on land, and as 'works' includes any act or operation of excavation, it follows that if the use of a field is changed from say tillage to quarrying this does not amount to a change of use for the purpose of the 1963 Act.  Such a change of use would, of course, amount to a 'development' as defined by Section 3.  It would come within the first limb of the definition as it would constitute the carrying out of 'works' on the land.

	On the facts in the present case, therefore, it seems to me that because of this artificial definition it cannot be successfully contended that there has been an "unauthorised use" in relation to the quarry field and that the Applicant's claim under Section 27 falls to be considered under subsection (1)(a) rather than under subsection (1)(b) of the section."

	I respectively agree with the Judgment of the President of the High Court.  If therefore the Applicant had sought an injunction restraining the "unauthorised use" of the land or if they had sought relief under Section 27(1)(b) of the land, the Notice of Motion would have been inappropriate.  However, this is not what they have done.  What they have done is to seek an Order restraining the Respondents from using the lands
(1)	For the purpose of extracting sand and gravel.
(2)	From continuing the preparation of the lands for the aforesaid purpose.
1(3)	From constructing on the lands an artificial berm.
(4)	From carrying out work incidental to the preparation and construction of the use of the land for the purpose of winning, preparing, extracting and removing of sand and gravel and such like matters from the land.
	These four activities described are, in my view, a classic description of the "development" of the land which, if carried out without permission, or unless exempted, would be prohibited.
	I do not accept that the Applicant has, by their Notice of Motion, confined themselves to Section 27(1)(b) merely by the inclusion of the word "use" given the full description which they have given of the activity which it is seeks to prevent.
	Moreover, I am satisfied that there can be no prejudice on the part of the Respondents nor can they have been misled as both warning notices served on the 30th April, 1991 and the 6th June, 1995 referred to the "development" of which complaint is made.
	Accordingly, I do not accept the submission of Counsel on behalf of the Respondents on this preliminary point.
	In opposing the present Application, Counsel for the Respondents has raised three issues and while accepting, as I do, that the onus is on the Applicant in an Application brought under Section 27 of the 1976 Act, it is of convenience, in determining this Application to deal with these issues which have been argued with ability and clarity by Mr. Gallagher.  
	The points that are made can be summarised as follows:-

(1)	It is submitted that the development of the sand pit commenced prior to 1st October, 1964 and that the present works do not differ materially from those carried out prior to the 1st October, 1964 and that accordingly the works are exempted by virtue of Section 24(1)(a) of the Act of 1963.
(2)	It is submitted that there has been an uninterrupted use of the lands by the Respondents since a date prior to the 30th April, 1991 and that accordingly the Application is precluded by Section 27(6)(b)(1) of the Local Government (Planning and Development) Act, 1976 since the Notice of Motion is dated 29th May, 1996.  The Application was not brought until after 5 years after the commencement of the unauthorised user (if the user was unauthorised).
(3)	It is submitted that Section 19 of the County Management Act, 1940 provides that every act done or decision taken by a Council shall be done or taken by the County Manager by an Order signed in writing by him.  Subsection 19 of the Act provides that the County Manager's Order may be proved by its production in Court.  It is submitted that there is no proof of the County Manager's Order in the present case.

	With regard to submission No.1.  I have had the evidence of a large number of residents in the area open to me on affidavit and I have observed the deponents cross-examined on their affidavits.  I am of the view that the following are the facts in the case.  The lands in question were in the ownership of the late Mr. Frank Driver.  He was a likeable but unusual person.  He held strong extremist political views for which he at times was incarcerated.  He appears to have cared little for the lands and in particular for the sand pit upon the lands.  This sand pit comprised an area of approximately 3½ acres.  I am satisfied that during Mr. Driver's ownership the sand pit was worked from time to time and that the balance of the lands were used for agricultural purposes.  The use to which the sand pit was put varied significantly.  This use varied from neighbours collecting an occasional load of sand and gravel with or without Mr. Driver's consent for which they may or may not have paid.
	On occasions, significant use was made of the pit the extent of which was dictated by short term local demand.  I am satisfied from the evidence that for most of the time that Mr. Driver owned the sand pit it was overgrown with grass and weeds and was honeycombed with rabbit burrows.  Access to the sand pit was obtained through a farm yard gate.  I am satisfied beyond all doubt that Mr. Driver had no real commercial interest in the property.  For extended periods it remained unworked and was put to agricultural use.  Mr. Driver died in 1981 and after his death his representatives made no use of the sand pit.  It is apparent that they regarded it as being of no importance as the advertisement for sale contains no more than a passing reference to the fact that "the lands are reported to have substantial deposits of sand and gravel".  The special conditions governing the sale of the land to the Respondents mentions that "there are reported to be sand and gravel deposits on portion of the lands in sale but vendors do not warrant or make any representation as to the quality or quantity or commercial potential or viability of same......." and in the requisitions on title the vendors say that the lands are in "agricultural use only" at present. 
	I am satisfied that this represents the extent to which the lands were used on the operative date namely 1st October, 1964 and up to Mr. Driver's death apart from a period of abandonment to which I later refer.
	In contrast, I am satisfied that the Respondents have, up to the present time extended the sand pit so that it now extends over an area of approximately 7½ acres and that they intend to develop the entire of the lands.  I am satisfied that the Respondents have taken 10,000 tonnes of sand and gravel from the pit in 1995 and 33,000 tonnes in the calendar year 1996 and for the three months January, February, March 1997 they have taken 16,000 tonnes (or an annual take of 64,000 tonnes).  I am satisfied that the extraction rate is approximately 4 acres per annum and if the present rate of extraction continued the pit would have a life of approximately 13 years.  I am satisfied that 10 to 12 truck loads per day are removed from the pit.  Being satisfied on these facts, I am satisfied that the scale of operation bears no relationship to the scale of operation carried on prior to the appointed day.  I respectfully agree with the judgment of Costello J. in Patterson -v- Murphy when he said:-

	"So, if it appears that the scale of operation has so intensified as to render contemporary operations materially different from those carried on before the appointed day, this fact can be taken into account in considering whether what is presently being done commenced prior to the 1st October, 1964.  
	If present day 'development' differs materially from the development being carried on prior to 1st October, 1964 I do not think that it can be said that it was commenced prior to the appointed day".

	I am satisfied that this is so in the present case and accordingly I reject this submission.
	Moreover, I am satisfied that having heard the evidence of the various witnesses that no use was made of the sand pit from in or about the year 1971 up to the date of Mr. Driver's death in 1981 and thereafter up to the date of the acquisition of the pit by the Respondents.  Accordingly, I am satisfied that there were two periods of abandonment, that is to say by the late Mr. Driver from 1977 up to 1981 and again from 1981 to 1991 after the death of Mr. Driver by his personal representatives.
	Accordingly, I reject this submission.	
	With regard to submission No.2.  It is submitted that the use of the lands commenced prior to 30th April, 1991 and that accordingly since the Notice of Motion is dated the 29th May, 1996 the proceedings are precluded by Section 27(6)(b)(1) of the Local Government (Planning and Development) Act, 1976 as substituted by the 1992 Act.
	This is the sub-section which sets time limits on applications preventing an unauthorised user of land.  In this case the complaint made by the Applicant is that of an unauthorised development because of the artificial meaning given to "development" and "use" by Section 2 of the Act of 1963.  The appropriate time limit of five years for the commencement of proceedings in these circumstances is that provided by Section 27(6)(a)(ii).
	Section 27(6)(a)(ii) provides:-

	"Section (6)(a)(i)......(ii) - An Application to the High Court or the Circuit Court for an Order under this Section in relation to a development to which sub-section(1)(a) of this Section applies shall not be made after the expiration of a period of five years beginning on the date on which the development was substantially completed."

	To consider the effect of this section in the present case it is necessary to find certain facts.
	I am satisfied that the following are the facts in relation to the period after the acquisition of the lands by the Respondents.  On the acquisition of the lands by the Respondents the work of extracting sand and gravel commenced in April 1991.  Mr. Gerard Roche inspected the lands on the 29th April, 1991 and spoke to Mr. Thomas Goode who wrote to him as already indicated.  The warning notice was served on 30th April, 1991 and work in the pit ceased.  This is followed by an Application made on behalf of the Respondents for planning permission on 7th February, 1992 by Mr. John Barnett, a Mineral and Environmental Science Consultant.  This Application was refused on 2nd April, 1992 and was not appealed.  Thereafter for some time no further use was made of the lands.  The next significant event was that in May of 1994 the first named Respondent or one of his companies, obtained permission for the carrying on of a Ready-Mix business in or near the town of Naas and that company needed raw material.  I am satisfied that it was this need for sand and gravel which brought about the re-commencement of the work in the sand pit.  Accordingly, for a period of approximately three years the pit remained un-worked.
	If the Respondents were correct in their submissions it would mean that the performance of an act of mining or taking sand by the Respondents for however a limited period of time, would be sufficient to cause the limitation period to start and, not withstanding the fact that the Respondents might have, in response to a warning notice discontinued the activity, would still continue to run.  In my view, this cannot be correct.  On the correct interpretation of this subsection it appears to me when applied to mining and quarrying cases that the limitation period must be defined as commencing upon the date upon which an unauthorised development of the land occurs and that period will continue to run unless there is a manifest interruption or abandonment of the said development.  If it were otherwise then warning notices would be meaningless and a local authority would be required to ignore the fact that a person engaged in an unauthorised development of removing sand, gravel, rock etc., had responded to the notice, but would be required to move in Court.
	Accordingly, a manifest interruption or abandonment of the development is in my view sufficient to stop the time provided for in the subsection, running and this time will only commence to run upon the re-commencement of the unauthorised development.  It appears to me that each case must be determined on its own facts and it is for a Court to decide if there has been an abandonment or discontinuance of the development so as to interrupt the time running.  In the present case, I am satisfied that the conduct of the Respondents in discontinuing their activities upon the service of the warning notice followed by the third paragraph of the Respondents letter of the 1st May, 1991 satisfies me that there was a sufficient abandonment or discontinuance of the activity to defeat the defence based on this sub-section.
	With regard to submission No.3, that is to say the defence based upon the absence of the Manager's Order, I believe that there is vested in the Court a discretion to permit the Applicant to prove this Order by producing it in Court.  Section 19(8) provides that every document purporting to be certified in writing by the County Manager to be true copy of an Order made by the Manger shall "without proof of the signature of the person purporting to so certify or that such a person was a County Manager, be received in evidence and shall, until the contrary is proved, be deemed to be evidence of the contents of the Order of which it purports to be a copy and the fact that such Order was duly made and signed by such County Manager.
	In the exercise of the discretion vested in me I propose to permit the Applicant to hand in this Order.  I do so for the following reasons:-
	At the commencement of the case I requested Counsel for the Applicant and the Respondents to identify the issues which would arise in the case.  This Counsel did and for this I am grateful as it was of assistance to me in identifying the relevant evidence.  At no stage did Counsel for the Respondents identify the Managerial Order as an issue in the case.  I am satisfied that Counsel for the Applicant directed the evidence towards the identified issues.  In the circumstances that it would be unjust to the Applicant  to refuse the Application now made to the Court for liberty to present this formal proof to the Court particularly as I am aware, since it has been exhibited in the Affidavit of Discovery filed in the matter that such an Order was in fact made.  In Morris -v- Garvey, Henchy J. delivering the judgment of the Supreme Court referred to the Courts function in applications under Section 27 and in the course of his judgment said:-

	"When Section 27(2) is invoked, the Court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations, and in carrying out that function it must balance the duty and the benefit to the developer under the permission as granted against the environmental and ecological rights and amenities of the public present and future particularly those closely and immediately affected by the contravention of the permission."

	I am satisfied that the Court, acting in its capacity as guardian and supervisor of matters relating to planning, has a duty to receive all relevant evidence.
	Accordingly, I will receive the evidence relating to the Managerial Order, if forthcoming, and on the basis that such is forthcoming, I reject this submission.
	Accordingly, the Applicant is entitled to the relief claimed.
	I will hear Counsel on what reliefs are sought.