In Ireland, a special regime has been provided for quarries under section 261 of the Planning and Development Act 2000.

The section requires that information on a quarry be registered with the relevant local authority. The deadline for registering the information was 28th April 2005.

Section 261 10 (a) provides;

A quarry to which this section applies in respect of which the owner or operator fails to provide information in relation to the operations of the quarry in accordance with subsection (1) or in accordance with a requirement under subsection (3) shall be unauthorised development.”

The operation of a quarry clearly falls within the definition of “development”.

In this Act, “development” means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land.”

Under Section 32 of the Planning and Development Act 2000 there is an obligation to obtain a planning permission for development.

32.—(1) Subject to the other provisions of this Act, permission shall be required under this Part—

(a) in respect of any development of land, not being exempted development, and

(b) in the case of development which is unauthorised, for the retention of that unauthorised development.

(2) A person shall not carry out any development in respect of which permission is required by subsection (1), except under and in accordance with a permission granted under this Part.”

Taken with the definition of “unauthorised use”:-

“unauthorised use” means, in relation to land, use commenced on or after 1 October 1964, being a use which is a material change in use of any structure or other land and being development other than—

(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or

(b) development which is the subject of a permission granted under Part IV of the Act of 1963 or under section 34 of this Act, being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;”

a quarry requires to have a planning permission or established pre-1964 use AND be “registered” under Section 261 before 28th April 2005.

(Quarries are not “registered” under Section 261; the required information furnished to the local authority is entered on the relevant register.)

There is a canard abroad that “registration” of a quarry has the effect of making it lawful in the way the grant of a planning permission would. This, by definition, is wrong.

Quarries, no less than any other development, are subject to control by application to the High Court under Section 160 of the Planning and Development Act 2000.

Any person may make the application for an injunction under that section.

In construction contracts the payment of liquidated damages is a benefit to the parties. Depending on the circumstances it can benefit the developer by relieving it of the obligation to prove a loss, whereas it can generally benefit the contractor in relieving it from the necessity to resist a [valid] claim and also introduces certainty as to consequences of the contractor’s default. Both parties can avoid expensive disputes in the courts with consequent delay for the project.

However, it is not a carte blanche for the contractor to neglect its obligations in terms of time, say.

In Bath and North East Somerset District Council -v- Mowlem Plc [2004] CA, Mowlem refused to follow an architect’s instruction. The developer council advised Mowlem that if it persisted in its refusal the council would engage another contractor to do the work. Mowlem again refused to do the work and the council instructed another contractor on the matter whereupon Mowlem refused to allow the replacement contractor on the site to do the work.

The council applied for an injunction to effect entry for the replacement contractor. Mowlem, in resisting the application, claimed that the only loss accruing to the council was a loss of time and that was capable of being remedied under the terms of the contract, which fixed liquidated damages for the delay.

The court disagreed and stated:

Mowlem is not entitled to breach its contract. The agreement on liquidated and ascertained damages is not an agreed price to permit Mowlem to do so, and it does not preclude the court granting any other relief that may be appropriate. In my view, the Council’s case is right in principle.”

There was evidence to show that the council’s loss would exceed the liquidated damages and the court affirmed the injunction granted in first instance to the council.

It frequently happens that a Plaintiff is driven by necessity to apply for injunctive relief to the court before the trial of the Plaintiff’s action.

Such applications are heard on Motion, grounded by Affidavit. These applications are fraught with stress and uncertainty.

I have adverted HERE and HERE to the the undesirability of deciding on the liability for costs for such applications at the time of the application. Traditionally, the court reserved that decision to the hearing of the action.

This was a fair and sensible attitude. At the full hearing the trial judge would have been presented with, presumably, all the available evidence. The verdict of the trial judge might, or might not, correspond to the outcome of the application for the injunction. In short, the successful party on the application for interlocutory injunction might not be the ultimate successful party at the trial.

In Chieftain Construction & Anor v John Ryan & Ors. [2008] IEHC, Edwards J. refused an injunction to the Plaintiff applicants and invited submissions on the costs of the interlocutory application from the parties.

In his judgement the judge adverted to the difficulties inherent in the court, at an interlocutory application, engaging in a consideration of the relative strengths of the parties’ cases. He said:

The Court is cogniscent that one of the principal arguments against a judge engaging with any question of the strength of the case at the interlocutory stage is that in many cases the evidence is incomplete. There may be conflicts in the evidence that are incapable of resolution on affidavits alone, and which can only be resolved in the course of a plenary hearing where evidence is tested in the crucible of cross examination.”

In the course of this exercise he quoted Laffoy J. in the case of Symonds Cider v. Showerings (Ireland) Limited [1997] 1 I.L.R.M 481 where she stated:

I am satisfied that, having regard to the decision of the Supreme Court in Westman Holdings Ltd v. McCormack, it is not open to this Court, assuming the plaintiff has established that there is a fair and bona fide question to be tried, to express any view on the strength of the contending submissions in this case. In any event, even if it were open to the court at this interlocutory stage to evaluate the likely outcome of the trial, in my view it would be impossible to do so in this matter, which is bristling with difficult issues of fact arising from conflicting affidavit evidence and difficult issues of law.�?

Because of the clarity of the net point on which the Plaintiff’s case rested (in the opinion of the judge), he went on, in the case, to assess the relative strength of the Plaintiff’s case to that of the Defendants.

The unsuccessful Plaintiffs were hit with a double whammy. Their fundamental case was assessed on the basis of affidavit on an interlocutory application and then the question of the payment of costs of the unsuccessful application was tabled for consideration.

In the particular case this might not be unjust. But if such Plaintiffs are wrong, they will, in due course, be brought to book ultimately at trial or by seeking to discontinue (by agreement with the opposing party or the court) on terms.

To deprecate their case and force the issue of the payment of costs on the application seems unnecessarily abrupt.