Court orders quarrying respondents to remediate land damage under Planning and Development Act 2000.

[2025] IEHC 551

THE HIGH COURT

PLANNING AND ENVIRONMENT

2024 / 333 MCA

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT

ACT 2000 AND IN THE MATTER OF SECTION 11 OF THE LOCAL

GOVERNMENT (WATER POLLUTION) ACTS 1977-1990

BETWEEN

MICHAEL BENCIK and YVONNE NOLAN

Applicants

-and-

HILLTOP QUARRIES LIMITED and DAVID CONDELL

Respondents

-and-

CARLOW COUNTY COUNCIL

Notice Party

JUDGEMENT of Mr Justice Nolan delivered on the 20th day of October 2025

Introduction

1. On the 30th of July 2024 Holland J. made an Order pursuant to Section 160(1)(a) of the Planning and Development Act 2000 (as amended) (“PDA”) directing the Respondents to cease from carrying out unauthorised quarrying and other activities including blasting, extraction, processing, production, storage or distribution of the stone and associated material removed from lands at Craanlusky, Bilboa, Co. Carlow, comprised in Folio 27868F County Carlow.

2. Notwithstanding the clear terms of the Order, the Respondents failed to abide by it. Indeed, the uncontroverted evidence of the Applicants is that the activity intensified over the following two months. Not surprisingly in the face of this clear breach of a Court Crder, the Applicants brought an application for attachment and committal.

3. To that end they served the Court Order again, this time with a penal endorsement. Having issued their motion they have decided not to seek the attachment and committal of the Second Named Respondent but instead simply seek orders, pursuant to Section 160(1)(b) of the PDA, directing the Respondents to remediate the damage that they have done to the lands. That, in essence, is an order directing the Respondents to refill the large crater or craters which were created by their unauthorised quarrying activities. That is the kernel of this application.

Background

4. The Applicants are a married couple who live with their daughter across the road from the lands of the Respondents. Indeed, they are their next-door neighbours. In June of 2020 they purchased their home and noted that there was an abandoned works across the road from them. Being prudent purchasers, they talked to their perspective neighbours and were told that the lands were an abandoned test quarry.

5. Sensibly they checked the Planning Register of Carlow County Council (“the County Council”) and discovered that there was no existing planning permission for a quarry, only an expired one, from over a decade ago.

6. The lands were wild and overgrown with small trees and shrubs. There were two small ponds which attracted wildlife, which were remnants of the previous quarrying activities. Nature had taken back the lands to its bosom.

7. In late of 2020 a large gate was installed on the lands and a roadway built. They met the Second Named Respondent and asked what was going on. He told them that the gate was to stop illegal dumping and that he was planning to rent the lands to local farmers. The Applicants were delighted and said as much, noting that they would be against any quarrying on the site. He reassured them, stating he was reclaiming the land and making it useful for pasture. He even gave permission for them to walk on the lands, if they so wished.

8. All that changed in late 2022. At that stage the Second Named Respondent started bringing large vehicles onto the lands and constructed a new drainage system, moving a lot of earth and as it transpires, stone. He simply stated he was levelling the land out to make it better pastureland for cattle, when challenged.

9. Thereafter a significant amount of topsoil and other material including bedrock was moved, digging up, what was described as an entire field. The Applicants have said that at times there could be anything up to six large machines with diggers and rock crushing machines present. That is not a surprise since the Respondents’ website shows a large number of crushing machines with associated vehicles used for the purposes of primary and secondary crushing. Mr Flynn SC for the Respondents has told me, on the basis of his instructions, that the photographs which appear on the website, are not of the quarry in question. I accept what he says. Naturally if it transpires that even one of those photographs represent the work done on the quarry, it would be a matter of grave concern.

10. Not only were the Applicants worried in relation to what was going on, so was the County Council. On the 23rd of August 2023, the County Council wrote to the Respondents saying that it had come to their attention that an unauthorised development may have been or was being carried out on the lands. It said in clear terms that such a development was against the law. It pointed out that it was an offence to carry out such activity and on conviction of indictment a fine of €12 million plus could be imposed or imprisonment of two years.

11. In the face of this correspondence one would have thought that a reasonable person would be most concerned and would seek advice. Not only did that not happen but the activity continued. Indeed, it continued right up to the day of service of the Order made by Holland J.

12. Again, one would have thought that in the face of a High Court order, which ultimately carried a penal endorsement, the activity would stop, but it didn't. It only stopped when the motion for attachment and committal was listed, at which point that the Second Named Respondent gave an undertaking that the works would stop.

13. In the papers are photographs taken of some of the activities of the Respondents on the lands. They show significant digging and quarrying works. There is no doubt that there would have been some previous works undertaken at the old quarry, but it is clear from the photographs, and not significantly disputed, that new works have caused dramatic and detrimental damage to the lands.

14. Mr Flynn points me to a report which was prepared in relation to the groundwater assessment. That is the only expert report which has been produced and it simply deals with the risk of groundwater presented by the quarry. It says nothing about planning permission.

15. In his replying affidavit in October of 2024, the Second Named Respondent says that he first had the benefit of legal advice on the 26th of September 2024. That is hard to understand in circumstances where he was served with a warning letter from the County Council a year before and then was served with correspondence before legal proceedings were issued.

16. Mr Flynn says Mr. Condell, the Second Named Respondent, is a man of limited education. I do not accept this explanation whatsoever. He is a company director and has been able to operate, what seems to be a very successful quarrying type of business, for what seems to be, for a number of years.

17. He said that he struggled to get to grips with the large amount of paper served but acknowledges that he should have sought legal advice beforehand. He confirmed that he purchased the lands in July of 2023, to do that he must have had the benefit of a solicitor. He then goes on to say that his understanding was, that a portion of the lands had a history of quarrying and were compliant with the requirements of the planning legislation. How he could have formed that opinion in circumstances where the Planning Register was clear that there was no planning permission, is difficult to comprehend and has not been explained. I do not accept this explanation.

18. He says that he should have acted with more diligence, but that does not explain the barefaced lies he told the Applicants, which has not been challenged, that he was preparing the lands so that they could be returned to pasture. He says that he fully accepts that all quarrying should have stopped on foot of the Order of Holland J. in July 2024. He should have stopped well before then. Indeed it should never have started, but should certainly have ceased once he received communication from the County Council.

The Nature of the Unauthorised Development and Contempt

19. It is clear and is admitted that there has been unauthorised quarrying development on these lands since 2023. The court is left in little doubt but that the Respondents deliberately carried out and intensified that unauthorised work on receipt of the Court Order, as evidenced by the affidavit that on at least seven different days, works were undertaken subsequent to the service of the Order.

20. The issue to be addressed now however is what sanction to impose in the context of the Notice of Motion.

21. Mr Flynn SC argues that the court should not impose any significant sanction, and in particular not make an order directing that the Respondents remediate the damage they have done, in circumstances where it is hoped that an application can be made to the County Council for retention of the works undertaken. The Applicants say that that would be a travesty and would in essence reward the Respondents for their illegal behaviour.

The Law

22. The case law relating to Section 160 shows that the jurisdiction of the court is discretionary. The principles governing it are set out and Meath County Council v Murray [2017] IESC 25 (see also Clare County Council v McDonagh [2022] IESC 2). In Murray, McKechnie J. identified the courts approach to the exercise of its discretion pursuant to the Section 160 jurisdiction. At para. 88 of his judgement he said as follows: - “[88] The principal starting point on planning control is that no development can lawfully be commenced without the cover of an appropriate permission; this subject to certain specific exemptions which are not to the fore of this discussion. Failure to apply, even where an application might be favourably looked upon, is in itself a serious breach where works are carried out or uses made of the subject lands. The legislative view is to criminalise such unauthorised conduct, with both terms of imprisonment and fines on indictment up to over €12m. This is a significant expression of the high level of public concern there is in regulating orderly and sustainable development…. Consequently, this demonstration of intent must always be given its justifiable position in the court's evaluation of the section 160 exercise. [89] In addition, it must be borne in mind that a breach of planning law will previously have been established and that the defaulter is seeking the indulgence of the court as to what resulting consequences he should face. As such, it must be that the interests of the public will be ever present on the enforcing side. Whilst the importance of that interest and the weight which it must be given, having regard to what is previously stated, will vary on a vertical scale by reference to a number of influencing factors, nonetheless it will always exist and most likely will stand first in the queue for consideration. Such was expressly acknowledged in the passage above quoted from Morris v. Garvey [1983] I.R. 319, as is evidenced by the lead-in requirement that any excusing factors must be found within “exceptional circumstances”. Equally so with Wicklow Co. Co. v. Forest Fencing [2007] IEHC 242, [2008] 1 I.L.R.M. 357. Such is and has been recognised as an important factor. [90] What, then, are the factors which play into the exercise of the court's discretion? From a consideration of the case law, one can readily identify, inter alia, the following considerations: -

(i) the nature of the breach: ranging from minor, technical, and

inconsequential up to material, significant and gross;

(ii) the conduct of the infringer: his attitude to planning control and his engagement or lack thereof with that process…

(iii) the reason for the infringement: this may range from general mistake, through to indifference, and up to culpable disregard;

(iv) the attitude of planning authority: whilst important, this factor will not necessarily be decisive;

(v) the public interest in upholding the integrity of the planning and development system;

…

(vi) the conduct and, if appropriate, personal circumstances of the applicant;

(vii) the issue of delay, even within the statutory period, and of acquiescence;

(viii) the personal circumstances of the respondent; and

(ix) the consequences of any such order, including the hardship and financial impact on the respondent and third parties. [91] The weight to be attributed to each factor will be determined by the circumstances of a given case… This list is not in any way intended to be exhaustive, and it may well be that other matters might require consideration in an appropriate case.”

23. The impact of an unauthorised structure on neighbours is a factor which weighs in favour of granting relief under Section 160. In Bailey v Kilvinane Windfarm Ltd [2016] IECA 92, Hogan J. held inter alia: - “90. In view of these conclusions regarding the unauthorised nature of the development, the next question is whether an order under s. 160 should be refused on discretionary grounds. The starting point, however, must be that the applicant is prima facie entitled to such relief, subject only to the question of discretion.

91. It may be said immediately that the breaches disclosed here are not de minimis or trifling… has the potential to have appreciable consequences in terms of visual impact and noise for the neighbours living in the immediate vicinity. These are also relevant planning considerations.

92. These changes are permanent and long-lasting…

93. In the present case there is clear demonstrable evidence of interference by the turbines with the enjoyment by Mr. Bailey, his family and other local residents of their property and other local amenities. For all the reasons already stated, such interference is, moreover, relevant to planning considerations. All of this re-inforces the case for the making of the appropriate s. 160 orders.”

24. In Donegal County Council v. Planree Ltd & Anor [2024] IEHC 193, Holland J. identified at para. 42 “sight should not be lost of the legal fact that a planning permission is a permission to do something which, but for that permission, is a criminal offence.” Holland J. also stated that establishing unauthorised development is a jurisdictional precondition to an injunction but also creates a prima facie entitlement to Section 160 relief subject only to the question of discretion. If the prima facie entitlement to the relief is established, the discretion to refuse it will be sparingly and rarely exercised. Its exercise in refusal of relief requires “exceptional circumstances”. Holland J. also noted that, if relief is to be granted, the court has an “extremely wide” power to order anything that the Court considers necessary and specifies in the order to ensure the achievement of the aims listed in Section 160.

Discussion

25. As noted in the case law above, the admitted actions of the Respondents amount to a criminal offence. Therefore, prima facie the Applicants are entitled to the orders sought. Nonetheless the matter is subject to the discretion of the court and Murray sets out clearly the factors which the court should take into consideration in exercising that discretion.

26. First and foremost is the nature of the breach. In this case it could not be said to be a minor, technical or insignificant breach, it was the extensive digging of a very large quarry and therefore is a material, significant and gross breach. I accept that in the past there was a quarry, but nature had taken over the site. By destroying what nature had put in place, the Respondents were carrying out a grave wrong.

27. The second factor which the court should take into consideration is the conduct of the infringer. Mr. Condell and the company have exercised an egregious attitude to planning control. Not only did he and the First Named Respondent carry out their illegal activities, for what seems to be in excess of a year, but in the face of a Court Order directing him to stop, he seems to have intensified the works, or to use the vernacular, he doubled down. Therefore, not only did he and the company have a very poor attitude to planning control, he failed entirely to engage with the planning authorities, his neighbours and most crucially the court.

28. Their actions could not be regarded as a mistake or indifference. They must be regarded as culpable disregard. They have failed to engage with the Planning Authority when it directed him and the company to cease and desist in 2023. This is another factor which the court can take into consideration.

29. The public interest in upholding the integrity of the planning and development system could not be more engaged. The development of a quarry adjacent to housing without any planning permission, is the type of action which the planning code was put in place to ensure did not happen. Nonetheless the attitude and actions of the Respondents has meant that it has happened. It must be put right.

30. The Applicants went to the trouble prior to purchasing the property of checking the Land Registry. They wanted to ensure that their family home with their young child would not be subject to any significant developments which were unauthorised. They were reassured by the Land Registry. Further they were reassured by the lies told to them by the Second Named Respondent. I do not accept that the Applicants are guilty of delay. They relied upon the representations of the Second Named Respondent.

31. The next issue which the court should consider are the personal circumstances of the Respondents, but there is nothing before the court. Indeed, everything that is before the court shows that the personal circumstances of both Respondents are healthy. It would not be unreasonable for the court consider that they are even in a healthier condition because of this illegal activity. Quarrying is a lucrative business. No doubt the stone and soil removed from the site were sold at a profit. The only suggestion made by Mr Flynn SC is that the economic viability of the project maybe threatened somewhat, if an order to remediate the lands is directed. But the project was an illegal one. By failing to direct the Respondents to remediate the lands and allow them to seek retention from the County Council, the court would be rewarding them for their illegal behaviour. There are no exceptional circumstances which would come to their aid and I do not regard the giving of an undertaking to the court as being some form of mitigation which comes to their assistance. It was the least the court would expect in circumstances of the egregious contempt of the Court Order.

32. Therefore in those circumstances, it seems to me that the justice of the case dictates that an order of remediation should be made and accordingly I shall make an order in terms of paragraph three of the Notice of Motion pursuant to Section 160(1)(b) of the Planning and Development Act 2000 (as amended) requiring the Respondents, their servants or agents, licensees or anyone acting in concert with them, to cease the unauthorised use and unauthorised development and that the lands are restored to their condition prior to the commencement of the unauthorised development.