Quarries
Overview
There are special provisions applicable to quarries under planning law. Quarries can have severe effects by way of noise and traffic on surrounding properties. They also have a very direct impact on the environment.
A quarry is an excavation or a system of excavations for the purpose of or in connection with obtaining minerals products or minerals not being a mine. A quarry includes the surrounding and adjacent area concerned occupied together, for the storage or minerals or related processes. It includes places used for depositing refuse from quarries and certain other associated places.
Intensification
Quarries which predate planning permission are potentially exempt provided that their use did not intensify. Quarries commencing after the Planning and Development Acts on 1st October 1964 would usually require planning permission.
It is of their nature that a quarry may continuously expand. Many cases have involved issues as to the extent and scope of use and whether the change from the original permitted quarry development or the pre-1964 use, was a material change such as to require planning permission.
An intensification involves a material change in the degree of use. Questions might arise as to whether the use as a quarry had been abandoned at some point, so that planning permission would have been required to reuse the property for quarry use.
Registration
The Planning and Development Act 2000 and the Planning and Development Act 2010 made special provision for quarries. There was an obligation on all quarry operators to provide information to the planning authority within a certain period of commencement of the 2000 Act.
In particular, it required details of the area and extent of the quarry materials being processed, the date of commencement, hours of quarrying traffic generated noise dust and other material particulars. It required confirmation whether the quarry commenced prior to 1 October 1964 or was the subject of a planning permission.
The planning authority was obliged to register the information. There are special powers for planning authorities to regulate quarries.
Categories
There were four categories
- pre-1964 used quarries under 5 acres which are not within a European Site or designated under any protection
- post-1964 quarries under planning permission
- pre-1964 quarries over 5 ha and where operations would have a significant effect on the environment and
- pre-1964 use quarries less than 5 ha but within or affecting a European Site natural heritage area or other designated or protected site.
For the first and second categories, the planning authority had two years from the date of registration to impose conditions on continued use. They give notice of the proposals, take account of comments and eventually confirm them with the possibility of appeal to an Bord Pleanala.
For the third and fourth categories of quarry, the planning authority could require the owner or occupier within a period to apply for planning permission with environmental impact assessment.
2010 Act Reforms
The 2010 legislation amended the provision for registration of quarries introduced in 2000. Where there was a failure to apply for or obtain planning permission under the special provisions, then the continued operation of the quarry is deemed to be unauthorised development.
Where quarries should have been subject to an environmental impact assessment but were not (either above or below the threshold) special provisions apply. This is the case even if a screening would have ruled out the requirement for carrying out an environmental impact assessment.
Each planning authority was to examine quarries within its area within nine months of the legislation. They were to establish those quarries in respect of which an environmental impact assessment, or screening for an environmental impact assessment was required under the habitats directive but was not carried out. This is backdated to 1 February 1990.
Direction for Substitute Consent
The planning authority is then to consider notwithstanding the fact that the EIA / AA requirements were not followed, whether other provisions of the legislation were complied with.Where this is required but was not done, the planning authority made a decision as to whether the quarry should be directed to apply for substituted consent.
There might have been planning permission.It may be authorised as pre-1964 operation.
It must consider whether the original 2000 Act planning registration requirements have been complied with. If they had been complied with then the quarry may be regularised pursuant to a substitute consent. Otherwise an enforcement notice was required.
The Department of the Environment published guidelines in relation to the operation of the special quarry provisions.
The substitute consent regularisation is available only in cases where the operation commenced after the European Court of Justice decision in July 20, 2008.
Special Provisions
The Planning and Development Act 2010 clarifies that failure to comply with conditions imposed under the 2000 legislation makes development unauthorised even in the case of a pre-1964 quarry.
The seven-year time limit does not apply to certain unlawful quarry development. Extractive activities which are immune from enforcement prior to commencement of the 2010 legislation may be required to cease but cannot be the subject of enforcement retrospectively. Extractive activities which were not immune from enforcement on that date, are not subject to any time limit for enforcement.
Where a quarry, had a significant effect on the environment and was required to apply for planning permission but did not obtain it, then it became unauthorised.
Environmental Impact
A number of legislative provisions contained in the Planning and Development (Amendment) Act 2010 and the Environment (Miscellaneous Provisions) Act 2011 relating to quarries were commenced on 15th November, 2011.
The requirements of these legislative provisions are as follows:
- Local Authorities are required to prepare a complete inventory of all quarries in their jurisdiction
- Within 9 months of the commencement of the legislative provisions, all planning authorities to identify the qualifying quarries and determine whether Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) or screening for same was required, and to be carried out if required
- Where a Planning Authority makes a determination that EIA or AA (or screening for same) was required but not carried out, the Planning Authority shall, depending on decisions regarding the planning status of the quarry, issue notice to the owner or operator of the quarry directing them to apply to An Bord Pleanála for consent in respect of the quarry, or issue a notice to the owner or operator of the quarry requiring that the quarry operation cease.
- Quarry operators have the right to request a review by An Bord Pleanála of the Planning Authority’s determination and/or decisions.
Substitute Consent
The Court of Justice of European Union has ruled that retention planning permission for development which would have required environmental impact assessment is not permissible under the EU legislation. A substitute consent procedure was enacted in 2010. An application is made to an Bord Pleanala.
Substituted consent may be granted where
- planning permission requiring an environmental impact assessment or appropriate assessment was found to be invalid or suspect under EU law
- where exceptional circumstances exist to permit the regularisation of the development
- where the planning authority notifies the quarry owner by notice directing that an application be made
An Bord Pleanala has regard to a number of factors as to whether exceptional circumstances exist, such that the development should be potentially regularised.
Consent Application
The planning authority could direct owners or occupiers to make the application. The application could be made by the owners or occupiers of their own accord.
A specific stand-alone procedure applies. The application must be accompanied by a remedial environmental impact assessment statement,a Natura impact statement or both. A special procedure applies similar to the planning procedure. The planning authority is involved in making a report to the Board. The Board may make an order requiring cessation of activities.
Where the application fails or where party required to make an application fails to make it, the planning authority must take enforcement proceedings.