Under Section 154 of the Planning and Development Act 2000 a planning authority may issue an enforcement notice on an owner or occupier of land in relation to any development.

The matters to be specified in the notice are set out in Section 154. Suffice to say that, pursuant to Section 154 (8), failure to comply with the notice is a criminal offence.

This is very strange.

Firstly, the Planning and Development Act 2000 places no express obligation on the prosecution to prove that the “development” is unauthorised. Development, whether of use or of works, is not unauthorised unless it post-dates 1st October 1964.

Secondly, the Planning and Development Act 2000 makes no express provision for some obvious defences to any requirement that might be made in a notice, such as;

that the “development” is authorised;

that the “development” is not unauthorised;

that the “development” is exempted development:

In short, the offence seems not to be related to planning (sustainable or otherwise), just a failure to follow what may be a caprice of a planning authority official.

If that is true, it raises constitutional issues in any prosecution under Section 154 (8).

“Seems”, in this context is important. It is not inevitable that the offence actually constitute a failure to comply with a notice simpliciter.

The District Court (the offence is triable summarily) is at liberty to interpret the the Section and the evidential burden on the prosecution to avoid working a breach of the constitution. Under the European Convention on Human Rights Act 2003, there is an obligation on Irish courts to interpret legislation to avoid breaches of the European Convention on Human Rights (in this particular instance Article 6 thereof). It is regularly asserted that the Irish constitution already embodies standards equal to if not greater than the European Convention on Human Rights. A prosecution under Section 154 (8) is the ideal occasion to show that this is true.

Section 261 of the Planning and Development Act 2000 made special provision for the control of quarries. A quarry is as defined in the Mines and Quarries Act 1965.

On the coming into force of Section 261 (on 28th April 2004) a quarry to which Section 261 applied (most quarries), had to be registered with the local planning authority within one year of 28th April 2004. Failure to register rendered the quarry an unauthorised development. “Registration�? refers to the supply of the required information, not the entry on the register. (S. 261 (10) (a)).

The section set out the information which had to be supplied on registration, with provision for the planning authority to make further enquiries. Failure to provide the further requested information also will render the quarry an unauthorised development.

Under S. 261 (12) provision was made as follows:

(12) The Minister may issue guidelines to planning authorities regarding the performance of their functions under this section and a planning authority shall have regard to any such guidelines.�?

The Minister has issued guidelines to the planning authorities on quarries. The guidelines emphasise that “registration�? does not authorise an unauthorised development.

Under S. 261 (7) provision was made, in respect of quarries the “extracted area�? of which was greater than 5 hectares; or was on a European site or other protected site; and that commenced operation before 1st October 1964; and would be likely to have significant effects on the environment, for the planning authority to require, within one year of registration, that the owner apply for a planning permission and to submit an environmental impact statement.

The effect of Section 261 of the Planning and Development Act 2000 is to establish a baseline for the operations of registered quarries. (Assuming the information furnished with the “registration�? is accurate). The public may compare the current operation of any quarry with the details in the register (which details relate to a period in 2004) and they or the planning authority may take action if the comparison shows intensification of use.