This
matter comes before the Court as an Application under
Section 27 of the
Local
Government (Planning and Development) Act 1976 as inserted by
Section 19(4)(g)
of the Local Government (Planning and Development Act) 1992.
The
facts of the case which are not in issue between the Parties may be summarised
as follows:
The
Applicants are farmers and reside with their family at Drumbawn Farm,
Newtownmountkennedy, Co Wicklow. The Respondent is the owner of a farm of
approximately 300 acres which adjoins the Applicant's farm on two sides. In
1991 the Respondent acquired approximately 45 acres from Coillte (hereinafter
referred to as "The Coillte lands"). This lands adjoins the Applicant's lands
on the southern side and it has a common boundary which comprises a hedge or
bank with a pole and wire fence erected thereon.
On
the 7 September 1990 the Respondent obtained from the Wicklow County Council a
planning permission for the construction of a house and new road and entrance
on to his lands. This planning permission envisaged that the entrance road
would cross the Coillte lands. However, one of the conditions attaching to the
permission was that the proposed new road would be constructed at a distance of
not less than 30 metres from the Applicant's lands.
This
planning permission lapsed due to non implementation but on the 4 September
1999 the Applicants became aware of the fact that the Respondent was engaged in
work consistent with road making activities at a point adjacent to their
boundary with the Coillte lands at a point at which, if the planning permission
was still valid, the road making activities would not have been authorised.
They accordingly, immediately applied to the court for an order restraining
these activities. On the 7 September 1999 that application was compromised by
an undertaking by the Respondents to discontinue this activity pending the
hearing of the matter. That undertaking has been honoured in full.
The
Applicant's complaints include complaints that the road making activities
engaged in by the Respondent have (a) disturbed the drainage on their lands,
(b) destabilised and resulted in the demolition, at least in part, of part of
the common bank between their respective properties, (c) deprived the fencing
of the support which it had from the bank and has become as a result unstable,
(d) disturbed the trees in the area.
In
response to these complaints the Respondent denies the allegations of damage to
the fencing, banks and drainage and the other complaints made by the Applicants
and he claims that he is entitled to carry on the work on the grounds that it
is an exempted development within the meaning of the Planning Acts. He claims
that the Coillte lands are very boggy and wet and that he has invested
significantly in their improvement. He says that from time to time the lands
become so wet that they are impassable and on these occasions he has to travel
some miles around by the main road to reach the far side of his lands. The
Respondent says that to overcome this problem on the occasion complained of he
spread spoil, clay and earth which he had excavated some years ago so as to lay
a rough road or path which would enable him to pass across his lands. The area
at which this soil is laid has been shown marked X/Y on the map exhibited. The
Respondent says that this work is an exempted development for which no planning
permission is required.
There
are two statutory provisions to which reference must now be made.
The
first is
Section 4(1)(a) of the 1963 Act.
The
second is Part 3 of the Local Government (Planning and Development) Regulations
1994.
With
regard to
Section 4(1)(a) of the 1963 Act this provides:
"4(1)
The following shall be exempted developments for the purposes of
this Act.
(a)
Development consisting of the use of any land for the purpose of agriculture or
forestry (including a fore station) . . ."
The
use which the Respondents made of his lands on this occasion, according to his
own Affidavit, was the dumping and spreading of clay and spoil which he had
previously excavated with the overall purpose of creating a path or road. This
would provide him with a more convenient way of accessing his lands and avoid
his having to travel around by main road. The issue therefore is whether this
is to be regarded as a use of lands "for the purpose of agriculture or fishery
(including afforestation)." In my view it clearly is not. There is no doubt
that it is a development within the meaning of the Section and may and probably
will ultimately facilitate the working of the lands. However, if one refers to
the definition of "agriculture" at
Section 2(1) of the 1963 Act one finds a
comprehensive description of the activities contemplated by the word. They
include "horticulture, fruit growing, seed growing, dairy farming, the breeding
and keeping of livestock . . ."
I
am in no doubt that the laying of a path or road, all be it for the ultimate
benefit of the lands, falls outside this definition.
I
am confirmed in this view by the view of Costello P when he considered Irish
Wild Bird Conservancy and Commissioners of the Office of Public Works v
Clonakilty Golf and Country Club Limited and others (unreported) in which the
work contemplated was the repairing of the banks of a stream, cleaning of
drains and repairing of the flap gate on the causeway. Costello P held that
this was not a development consisting of the use of any land for the purpose of
agriculture and was not an exempted development.
In
my view the mere fact that the work in question may eventually benefit and
enhance the lands and make them more suitable and more convenient for use for
agricultural purposes does not in itself render the works a "use of land for
the purposes of agriculture or forestry" for the purposes of
Section 4 of the
Act.
Accordingly
since the onus is on the Respondent to establish to the satisfaction of the
court that he is entitled to the benefit of the statutory, exemption claimed, I
am of the view that he has failed to do so.
Secondly
with regard to Part 3 of the Local Government (Planning and Development)
Regulations 1994:-
Article
9 provides
9(1)(a)
Subject
to paragraph (b) and article 10 development of a class specified in column 1 of
Part 1 of the Second Schedule shall be exempted development for the purposes of
the Acts, provided that such development complies with the conditions and
limitations specified in column 2 of the said Part 1 opposite the mention of
that class in the said column 1.
Subsection
(3) provides:
(3)
Subject to article 10, in areas other than county boroughs, boroughs, urban
districts, towns specified in the First Schedule to
the Act of 1963 and the
excluded areas as defined in
section 9 of the
Local Government (Reorganisation)
Act, 1985 development of a class specified in column 1 of Part III of the
Second Schedule shall be exempted development for the purposes of the Acts,
provided that such development complies with the conditions and limitations
specified in column 2 of the said Part III opposite the mention of that class
in the said column 1."
Article
10 is not of relevance in the circumstances of this case.
The
development to which Article 9(1)(a) refers is headed "land reclamation Class
9." It is described as "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)
Improvement of existing fences
(e)
Improvement of hill grazing
(f)
The reclamation of exturine marsh land or callows . . ."
I
have considered the activities described by the Respondent in his Affidavit
with a view to ascertaining whether they fall within the description of the
works of land reclamation set out at Class 9. I am satisfied beyond any doubt
that they do not. Nowhere among these activities is any reference made to the
construction of a pathway or road, or to the spreading of soil. I am satisfied
that insofar as field drainage is referred to this contemplates work by a
landowner upon his own holding for the purpose of improving his own drainage
and not interfering with the drainage of an adjoining landowner. Insofar as the
removal of fences is concerned, I am satisfied that this activity cannot
properly be construed as a reference to the removal of boundary fences to the
detriment of adjoining landowners.
Accordingly
the Respondent has failed to satisfy me that he is entitled to an indemnity
based upon the Local Government (Planning and Development) Regulations 1994.
A
secondary and subsidiary issue developed during the course of the hearing and
that is the use by the Respondent of his lands for the purpose of quad sports.
This recreational activity involves the hiring of vehicles, described as mini
tractors, which will traverse rough terrain. In that way visitors can be
brought on a tour of the Respondent's lands. These vehicles will travel at a
speed of up to 20 miles an hour. They are driven by a 2 stroke engine. They are
relatively noisy.
It
was part of the Applicant's case that this newly constructed road was being
used and indeed may well have been constructed for the purpose of providing a
path for the quad sport vehicles. At paragraph 15 of his Supplemental Affidavit
the first named Applicant sought an Order "restraining the use of the
Respondent's lands for or in connection with the operation of a quad biking
business."
During
the course of the hearing the Respondent has given an undertaking to the court
not to use any part of the Coillte lands for the purpose of his quad sports
activity. For their part the Applicants are content to accept this undertaking
and on the basis thereof are not proceeding with their claim for the injunction
restraining the Respondent from so using his lands. I accordingly do not
propose to deal with that relief. I wish to make it clear however that my
decision in this regard is not to be taken at any future date as a
determination of any issue between these Parties relating to the use of the
Respondent's lands for quad sport activities. For the moment and for the
purposes of this application only the Court is not required to deal with this
issue.
Accordingly
I now pass to consider the reliefs to which the Applicants are entitled.
I
propose to make an Order in accordance with paragraph 1 of the Notice of Motion
that is to say restraining the Respondent or his Servants or Agents from
spreading any further soil in the area referred to in these proceedings (which
I propose to define more exactly in a moment) or from removing ditches or trees
in this area. I propose to make an Order requiring that the Respondent
reinstate the area by the removal of the soil from this area so that it may be
reinstated and restored to its original condition in as close a manner as is
possible in all the circumstances. I will make an Order directing that the
Respondent reinstate the banks where they have been damaged by the carrying out
of this works so that they will again provide a support for fencing between the
two lands and I will direct that the Respondent reinstate the fencing to the
condition that it was prior to the unauthorised acts.
I
do not propose to make any Order in relation to the drainage work of which
complaint has been made as I believe that that was an exempted development nor
do I propose to make any Order in relation to the Applicant's complaint of
damage to trees.
I
will hear Counsel as to the precise location of the area upon which the path or
roadway has been constructed for the purpose of clearly identifying it on a map
to be lodged with this Order.
