High Court dismisses stay application against planning permission due to lack of evidence and balance of justice.

APPROVED [2025] IEHC 540

THE HIGH COURT

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO SECITON 50, 50A AND

50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

2023 2 JR

BETWEEN

KENNETH PAYNE

APPLICANT

AND

MEATH COUNTY COUNCIL, IRELAND and THE ATTORNEY GENERAL

RESPONDENT

AND

BREEDON CEMENT IRELAND LIMITED

NOTICE PARTY

JUDGEMENT of Mr Justice Nolan delivered on the 14th day of October, 2025

Introduction

1. This is an application for a stay on the implementation of planning permission register reference 22/1184 against the Respondent, Meath County Council (“the Planning Authority”) and the Notice Party (“Breedon”), pending the determination by An Bord Pleanála (“the Board”) of judicial review proceedings which the Applicant has brought. He also seeks interim and/or interlocutory relief. Notwithstanding that the Board has changed its name to the Commission, I shall refer to it in the course of this judgement as the Board.

2. The history of this case goes back many years. Breedon, who was previously known as Lagan Cement, operates a cement, asphalt, limestone and shale quarry on lands in County Meath. The Applicant is a farmer and neighbour.

3. In September of 2022, Breedon made an application for, what the public notice described as, a deepening of the northwestern portion of the existing limestone quarry extraction area, over an area of 4.13 hectares.

4. In his grounding affidavit the Applicant says that the proposed development surrounds and encircles his farm and dwelling house. As it transpires, this is not quite correct. Whilst Breedon’s lands may well encircle and surround his farm, the proposed development does not. It sits quite a distance to the northeast of his land.

5. He alleges that the proposed development will have a very significant negative impact upon him in many ways. He says that his health, marriage, farming activities and livelihood have all been devastated over many years, as a result of emissions and discharges from Breedon’s activities. He alleges this has affected his water supply, by contaminating the groundwater and resulting in the dewatering of his lands to such an extent that his well dried up. He alleges that emissions from the facility and from the general air contamination have resulted in serious physical, psychological and emotional impacts upon himself and his family. As a result, his partner and children moved out of the family home.

6. He complains that he lost over 70 animals of his livestock over a 12 month period in the past. However, none of these alleged effects are directly linked to the development to which this application relates, in the circumstances which I will set out below.

7. He alleges that there is a failure to properly describe the nature and extent of the development in the public notice displayed. It was not located appropriately. Further he alleges that the original planning permission should not have been granted because there was a failure to comply with the Habitats Directive and that the Planning Authority acted contrary to the Environmental Impact Directive, because they failed to carry out an environmental impact assessment in accordance with the Directive and failed to consider the cumulative effects of the proposed development, as required.

8. Further the Planning Authority failed to consider the impact of the development upon the Applicant, as an individual and his farming activities. His mother has filed an affidavit confirming very much the content of what he says. All of these matters are strenuously disputed.

9. Notwithstanding that these complaints go back over nearly two decades, it is somewhat surprising that when the Notice Party sought planning permission from the Planning Authority, the Applicant did not object. As a result, the Planning Authority made the decision to grant planning permission, in accordance with the Planning and Development Act of 2000, (“PDA”), notification of its order being made on the 1st of November 2022, to grant permission.

10. In the meantime, the Applicant sought, without notice to any of the parties, to appeal to the Board, pursuant to Section 37(6) of the PDA, on the 28th of November 2022. The Board refused leave to appeal on the 15th of December 2022.

11. On the 20th of December 2022, the Planning Authority made the grant of planning permission. This prompted him to bring another set of judicial review proceedings against the Board, challenging its refusal to give him leave to appeal. That judicial review was conceded, presumably on the grounds that the Applicant fell within the provisions of Section 37 (6) of the PDA, being a person who has an interest in land adjoining land in respect of which permission has been granted. On the 23rd of January 2024, the High Court made an order of Certiorari, quashing the Board's decision of the 15th of December 2022, refusing the Applicant leave to appeal, and remitted the application back to it. Thereafter on the 26th of February 2024, the Board granted leave to appeal on the remitted Section 37(6) application and on the 11th of March 2024, the Applicant made a valid appeal.

12. On discovering this turn of events Breedon brought its own judicial review proceedings against the Board's decision to grant leave to appeal. Judgement is awaited.

13. In the meantime, Breedon commenced its development in April 2023, not aware of the legal developments. The works have continued and therefore the fundamental issue before this court is the effect of the appeal lodged by the Applicant to the Board. The Applicant says it acts as a stay, in that the decision of the Planning Authority has become inoperable, unless Breedon is successful in its Judicial Review proceedings, whilst the Notice Party says it does not.

14. This issue is so relevant to the case, that I asked the parties to make submissions to me on the statutory interpretation of relevant sections.

Other Proceedings

15. It would seem that the Applicant has brought a number of sets of proceedings. He brought a nuisance action in 2021, which his counsel Mr. Bland SC, describes as Hanrahan type proceedings (see Hanrahan v Merck Sharp & Dohme (IRL) Ltd [1988] ILRM 629). He also brought judicial review proceedings against the Board as set out above and has issued proceedings under the Waste Management Act against Breedon in February of 2024. Finally, he issued these proceedings, a total of four.

Sections 34 and 37 of the Act of 2000

16. Section 34(11) provides: “(11) (a) Where the planning authority decides under this section to grant a permission—

(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,

(ii) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals— (I) it is withdrawn, or (II) it is dismissed by the Board pursuant to section 133 or 138, or (III) in relation to it a direction is given to the authority by the Board pursuant to section 139, and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.

(b) Where the Board decides on appeal under section 37 to grant a permission, it shall make the grant as soon as may be after the decision.”

17. Therefore, on the face of it, in normal circumstances, where the Planning Authority decides to grant permission and there is no appeal, it must then make the grant. Where there is an appeal, before the grant is made, then it shall not make the grant, unless it is withdrawn, dismissed or directions are given by the Board pursuant to Section 139, which is not applicable in this case.

18. Section 37(1) reads as follows: -

“(1) (a) An applicant for permission and any person who made submissions or observations in writing in relation to the planning application to the planning authority in accordance with the permission regulations and on payment of the appropriate fee, may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34. (b)Subject to paragraph (c) and (d),where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and subsections (1), (2), (3) and (4) of section 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority.”

19. Section 37(6)(a) reads: -

“Notwithstanding section (1)(a), a person who has a interest in land in respect of which a decision to grant permission has been made may, within the appropriate period and on the payment of the appropriate fee, apply to the Board for leave to appeal against a

decision of the planning authority under section 34.”

20. While subsection 6(g) reads: -

“where an application is made under this subsection a planning authority shall not make a grant of permission unless the application is refused.”

21. The import of Section 37 seems to be that the effect of an appeal means that the Board shall determine the application as if the application had been made to it in the first place. Further the decision of the Board operates to annul the decision of the Planning Authority. In other words, if the Board upholds the Planning Authority’s decision, then it becomes a decision of it, as opposed to the Planning Authority.

22. Subsection 6(a) deals with the circumstances of the Applicant, who I have noted above is a person who has an interest in land, adjoining land in respect of which permission has been granted. Subsection 6(g) has the effect of preventing a Planning Authority from making a grant of permission unless the application is refused. The provision seems to be framed on the assumption that any applicant would move with speed. That unfortunately is not what happened here. No appeal was lodged within the statutory period, and therefore the Planning Authority granted planning permission. It did not envisage that a judicial review would be brought, which has had the effect of having in place both a grant of planning permission and an appeal to the Board at the same time. Thus, we have a lacuna.

Submissions on the Statutory Interpretation

23. Mr. Bland SC for the Applicant submits that the Act is structured to provide that the Planning Authority notifies the parties to the application of a decision to grant, and that the Planning Authority does not grant the permission if there is an appeal to the Board. But here there is both a grant of planning permission and an appeal to the Board, at the same time. This is something which he says is impermissible.

24. He says it is not addressed in the leading text on planning law, namely Simons on Planning (3rd ed, 2021), which simply states at para. 6-255 that: “The effect of an appeal to An Bord Pleanála is that it annuls the planning authority’s decision.”

25. The Applicant submits that on a proper construction of Section 37(1)(b) of the PDA, a grant of planning permission from a planning authority is annulled by a successful application under the section. To hold to the contrary would lead to results that are illogical and inconsistent with the purpose and scheme of the PDA and inconsistent with EU environmental law. The underlying decision to grant is not annulled until the Board makes its

decision on appeal, but the grant of planning permission should never have issued and should be construed as having been annulled on a purposive construction of the Act.

26. He refers to the various subsections of Section 37, all to the same effect, namely that the provisions are intended to ensure that there cannot be a live grant of planning permission and a live appeal to the Board at the same time. It is discordant to the scheme for development control under the PDA that this could happen.

27. He submits that Section 37(6)(g) should be construed so as to annul a grant of planning permission that issues on foot of a decision to refuse leave to appeal that is subsequently quashed and replaced with a decision to grant leave to appeal. This would be a purposive construction.

28. Mr. O’Connell SC for the Notice Party says that there are particular reasons why it must be the decision on an appeal and not the making of an appeal that has the effect of annulling the decision of the Planning Authority. In short, the machinery of the Act depends upon this understanding. The Act draws a clear distinction between the making of a decision to grant permission (under Section 34(1)), and the making of a grant of planning permission (under Section 34(11)).

29. If the mere making of an appeal annulled the decision, then there would be no

decision to subtend the making of a grant in the event of a withdrawal or dismissal of an appeal or the making of a direction under Section 139.

30. He says that the wording used in Section 37 (1) (b) is unambiguous. It is the decision of the Board that has the effect of annulling the decision of the Planning Authority, not the making of an appeal to the Board. He says the onus is on the Applicant to establish that the meaning of Section 37, is something other than the plain meaning of the words.

Case Law

31. In Friends of the Irish Environment CLG v. The Legal Aid Board [2023] IECA 19 the Court of Appeal (Murray J.) emphasised that the general rule of statutory interpretation is that the Court ascertains the meaning of a provision by reference to its language, place, function and context. The language of a statutory provision under consideration is central, but the Court must also ascertain if a construction of the Act in context demonstrates a particular meaning of the provision. This can arise where the purpose and architecture of the Act are clearly and decisively probative of an intended effect.

32. He said at para. 40 of the judgement: -

“The sequence of decisions of the Supreme Court in DPP v. Brown [2018] IESC 67, [2019] 2 IR 1; Minister for Justice v. Vilkas [2018] IESC 69, [2020] 1 IR 676; Dunnes Stores v. The Revenue Commissioners [2019] IESC 50, [2020] 3 IR 480; Bookfinders Ltd. v. The Revenue Commissioners [2020] IESC 60; and The People (DPP) v. AC [2021] IESC 74, [2021] 2 ILRM 305 have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in the provision must still be construed having regard to the relationship of the section to the statute as a whole, the place of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute”.

33. The Applicant submits that it must be presumed that the legislature did not intend to create a void or ineffectual provisions, and therefore that a purposive construction must be preferred to a literal construction, (see McGlinchy v. Governor of Portlaoise Prison [1988] IR 671), and relies upon the Supreme Court decision of Frescati Estates Ltd v. Walker [1975] IR 177, in the context of Section 9(1) of the Planning and Development Act, 1963. In that case the defendant argued that because there were no limiting qualifications defining an applicant, anyone can be an applicant. The court in a rather understated manner described this as “a farreaching proposition”. (See also Twil Ltd v. Kearney [2001] 4 IR 476 and O v. M [1977] 1 IR

33 where Kenny J. noted that “A purposive interpretation of the Act … carries out the aim of that Act; a literal interpretation frustrates it.”). That is not quite the position here.

34. The purposive approach has been given legislative approval in Section 5 of the Interpretation Act, 2005: “(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or fail to reflect the plain intention of … the Oireachtas … the provision shall be given a construction that reflects the plain intention of the Oireachtas … where that intention can be ascertained from the Act as whole.”

35. A construction leading to an absurd or an unintended result should not be adopted unless the language leaves no alternative: Murphy v. GM; Gilligan v. Criminal Assets Bureau [2001] 4 IR 113.

36. In this case I agree that a literal interpretation does give rise to something of an unintended result. However, the question is whether the language is obscure or ambiguous and leaves no alternative.

37. In Heather Hill v An Bord Pleanála [2022] IESC 43, §214, the Supreme Court (Murray J.) summarised the principles of statutory interpretation: “The words of the section are the first port of call in its interpretation, and while the court must construe those words having regard to the context of the section, of the Act in which the section appears, the pre-existing relevant legal framework and the object of the legislation insofar as discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the legislature to establish this”.

38. In this case that is the Applicant.

Discussion on the Statutory Interpretation

39. It seems clear that it was never envisaged at the time of the enactment of the legislation, that a factual matrix such as occurred here would ever happen. Once the Board rejected the Applicant’s appeal and he brought his judicial review, which the Board conceded, the door was open to bringing an appeal late in the day, which the Board has now accepted. Thus, we have a grant of planning permission and an appeal before the Board at the same time. The Applicant calls this impermissible. There is no doubt it seems to be somewhat contradictory.

40. The issue to be addressed therefore is whether in those circumstances it is appropriate to put a stay on that planning permission. The rules of statutory interpretation are only of some assistance. This is not a situation where there is a statutory provision in place which requires to be interpreted. The words of the section are not obscure or ambiguous. This is a position in which there is no statutory provision which governs the situation and the court is being asked to, in essence, insert a section or sub section into the Act.

41. The structure of the planning acts has created two steps. The first is the making of a

decision to grant planning permission, the second is the making of a grant of that planning permission. The making of the decision is notified to any potential appellants who, if they wish, may appeal. In those circumstances, it is the decision that is stayed. Here the decision was made and there was no appeal so as to prevent the issuing of a grant, therefore it issued, as the law mandates.

42. It seems to me that the provisions of Section 34(11) are clear. Where the Planning Authority decides to grant planning permission and no appeal is taken against that decision, it must grant it as soon as maybe after the expiration of the period for taking an appeal. That is what happened here.

43. It is only in circumstances where the appeal is withdrawn, dismissed or in the unique circumstances of Section 139, that it should make a grant. If the mere making of an appeal annulled the decision, then there would be no decision to support the making of a grant.

44. I accept in full that the golden rule is that the Act must be construed as a whole, with the words given their ordinary meaning. However, in this case it is not a question of interpreting words in such a way so as to prevent an absurdity, it would be a question of rewriting the section by inserting a new provision. It is the role of the courts to interpret the statute not to write them, no matter how laudable or appropriate it may seem.

45. It may well be that primary amending legislation may be necessary, since without it, there does not seem to be an easy way to resolve the admittedly, unacceptable situation of there being both a grant of planning permission and an appeal in existence from the very same planning permission.

46. Therefore, somewhat reluctantly, I have come to the view that even with a purposive construction, the precise words of the section do not permit for an interpretation which the Applicant urges me to adopt. In those circumstances it seems to me that it would be unsound for the court to construe the statutory provisions so as to provide for a stay where a grant of planning permission, as opposed into a decision to grant planning permission, has been made.

47. That being the case I now turn to the substantive grounds upon which the Applicant moves.

The Applicant’s Submissions on the Substantive Grounds

48. Mr. Bland SC for the Applicant submits that in a judicial review such as this, there are two issues which the court needs to address. The first issue is whether or not there is an arguable case, the Okunade test (see Okunade v The Minister for Justice, Equilty & Law Reform [2012] IESC 49), or in planning matters, substantial grounds, and the second is the balance of justice. Given that leave to bring the judicial review proceedings has already been granted, he says that the first issue has already been addressed. I agree, therefore the real issue is the balance of justice. While at the time of the first hearing in this matter the judicial review proceedings brought by Breedon had not been progressed it would seem that it has now been heard and judgement is awaited.

49. He submits that the sheer size of the scale of the development, being the digging of a very large part of Co. Meath, will inevitably cause environmental pollution, however he has no evidence of any pollution, in circumstances where the development has gone on for over two years.

50. He says that it is well established that the balance of justice has to lean towards protecting EU law and in particular the Habitats Directive and the Environmental Impact Assessment Directives. This argument is premised on there being no planning permission, in which case the development is clearly in breach of EU law.

51. He argues that there was no substantial delay on the part of his client, since there was a pause in the litigation when the matter went to mediation, which cannot be taken into consideration pursuant to the Mediation Act.

52. He submits that the court should look at the conduct of Breedon in the manner in which it has continued the development with no planning control. Again, this argument is based upon the premise that there is no planning permission. The fact that the Planning Authority, has not acted should not in any way influence the court. Breedon was certainly aware from March 2024, of the position but decided to continue with its works none the less. In those circumstances it is up to the court to ensure compliance with EU law.

53. He disputes the argument that any delay on his client’s part would cause inconvenience or economic loss to Breedon. Financial hardship should not weigh against breaches of the planning code.

54. Finally, he submits that the court should have regard to the public interest. Since this is a public law matter, the Applicant does not have to prove damage. EU law has become engaged and therefore the public interest rests with halting the development in circumstances where the planning permission has been annulled. This argument is based upon his contention that there is no planning permission but as I have found above there is a valid planning permission in existence.

The Notice Parties Submissions

55. In response Mr. O'Connell SC says the evidential burden rests on the Applicant, and to that extent he is correct. He says very serious allegations have been made of damage to the Applicant’s health and that of his family, as well as the environment, his lands and farming business, but there is no evidence to support these allegations. This is particularly the case in circumstances where the failure to supply any independent evidence or professional evidence, was highlighted in the affidavits from the commencement of the application.

56. The Applicant has had many months to dispute the points raised by his client but has failed to do so. These are matters of a technical nature and yet he has no expert evidence of any description. He says that his client was given planning permission after a technical process. It holds an EPA license, having satisfied the licensing body as to its technical requirements. All of that was based upon expert evidence. But here all that can be said by the Applicant was that the EPA was “pathetic”, a reference to an averment of the Applicant’s affidavit.

57. His second point relates to, what he calls, the futility of a stay. A stay will not prevent the present output from the mining operation. It will operate exactly in the same way as it did before. The output will be the same. It is noteworthy that the Applicant could not say when the work started, because he did not notice it, thus highlighting his assertion that the development surrounds his property, when it does not. If a stay is granted, all that will happen is that a greater amount of blasting of the land, which already has planning permission, will occur. Stone will be taken from those lands with a greater intensity. This will mean a further intensification of the act of mining, but also the transportation of the product. None of this would have any benefit to the Applicant. It seems to me that this argument has much force and is one which in my view leans in favour of the Notice Party.

58. The Applicant does not distinguish between the area where the new works are being carried out, as opposed to what has been going on for years.

59. He submits that there has been inordinate delay and notes that no statement of claim has been delivered in the nuisance proceedings issued in 2021, which all points against the Applicant. In relation to the argument that the Applicant moved within the statutory period, he does not agree, but either way, he points to the lack of warning.

60. There was no notification or fair warning of the bringing of the application. There was no notification of the judicial review against the Board. There was no notification of any of the other proceedings. There were no warning letters of litigation. These matters also go against the Applicant.

61. Whilst the Applicant says he is suffering from depression there is no evidence to support this.

62. He submits that the issue of scale is neither here nor there. Just because it is large, does not mean it is in any way more dangerous or harmful. Further there is no evidence to support such a contention. In relation to the issue of economic loss, that is dealt with by the futility argument. Finally in relation to the public interest he says that again that depends upon Section

37 argument which I have just determined.

Discussion on the Merits

63. The first observation I would make is that the Applicant has brought a number of different sets of proceedings against Breeden and yet has failed to progress with speed. The onus on any litigant to move speedily has recently been restated with force, in the Supreme Court’s decision in Kirwan v Connors and others [2025] IESC 21.

64. Ironically the difficulty which this case highlights, is one which derives from his failure to engage with the planning permission sought by Breeden in the first place. He then brought judicial review proceedings which have given rise to a grant of permission coming into existence at the same time an appeal.

65. I do not accept that the alleged sheer size of the development gives rise to pollution concerns, to such an extent, that it alters the balance of justice. No evidence of any description has been put before the court in relation to pollution. A mere assertion is not evidence. In this case the Applicant has asserted a lot but shown little or no evidence to support such assertions. Therefore, I do not find any merit in the argument that the size of the development will give rise to pollution or the risk of pollution. Further, the planning permission was granted with all appropriate statutory bodies being engaged. Therefore, this is not a circumstance where there has been an uncontrolled development. The Habitats Directive and the Environmental Impact Assessment Directives have all been taken into consideration. All appropriate infrastructure parties have given their permission.

66. As I have already intimated above, I do not believe there is any delay on the part of the Notice Party. There has however been significant delay on the part of the Applicant, which if anything, must mitigate against him in regard to the issue of the balance of justice. Further I note his complete failure to notify the Notice Party of the various sets of proceedings. It ill behoves any applicant to complain of the actions of a notice party where he or she fails to engage with that party in relation to such important matters such as planning.

67. I do not think that Breeden has acted in an unlawful manner, as has been suggested, in circumstances where its development is being undertaken in accordance with the planning permission granted from the Planning Authority.

68. Notwithstanding his numerous complaints of harm, no evidence of any description has been furnished to support these complaints. No expert reports have been commissioned.

69. While the court must have regard to the public interest and EU law, it seems to me that that is putting the cart before the horse. In this case there is a valid grant of planning permission in existence. There is no evidence of harm to the public nor that EU law has been breached. Therefore, it seems to me that this argument does not avail the Applicant.

Conclusion

70. There is one further observation that I would make. The Applicant commenced his proceedings on the basis that the proposed development surrounds and encircles his farm and dwelling house. That is simply untrue. It is true to say that the lands of Breedon surround his property but the development does not. I find it hard to understand how he could have sworn an affidavit to that effect in circumstances where he knew better than anybody else precisely where the development was located.

71. In those circumstances it seems to me there has been a lack of candour on his part such that if it were the only issue before the court, would disentitle to him to the relief he seeks. Nonetheless I have decided this case not on that basis but on the fact that there is in existence a grant of planning permission and that the balance of justice does not favour granting a stay.

72. Therefore, I shall refuse the application for a stay.