High Court quashes An Bord Pleanála decision as block making constitutes development, not exempted works.
Sintesi Legislator
Generato dall'IAThe High Court quashed An Bord Pleanála's decision that block making at a quarry was exempted development. The applicant argued the activity was merely works on existing land, while the Board focused solely on the physical structures. The court held that the Inspector erred by conflating works with use, failing to recognize that storing blocks constituted a material change of use inconsistent with the original quarry function.
Regesto Legislator
Generato dall'IAs. 4(1)(h) of the Planning and Development Act, 2000; s. 5(4) of the Planning and Development Act, 2000: Where works are carried out on land for the purpose of adapting it for a clear change of user, the activity constitutes development rather than exempted works, and a planning authority must consider the resulting use to determine if it is a material change of use.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IAGiurisprudenza citata
Generato dall'IATesto completo
Neutral Citation Number: [2009] IEHC 553
THE HIGH COURT
2007 144 JR
BETWEEN
MICHAEL CRONIN (READYMIX) LIMITED
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
KERRY COUNTY COUNCIL
AND
THE DEPARTMENT OF THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT
NOTICE PARTIES
JUDGMENT of Mr. Justice Ryan delivered on the 15th day of December, 2009
1. On a reference by a planning authority under section 5(4) of the Planning and Development Act, 2000 An Bord Pleanála
may give a decision as to what, in a particular case, is or is not development or exempted development. The applicant in
this case is challenging such a decision, in which Kerry County Council was the planning authority and the decision related
to the applicant’s quarry at Coolcaslagh, Killarney, Co. Kerry. The Board decided that a block making operation at the
quarry was development and not exempted development.
2. The background to the reference can be shortly summarised. The applicant operates a quarry at the above address
where it produces readymix concrete and concrete blocks. In late 2003 the County Council as planning authority became
concerned that the block making activity within the quarry might be unauthorised development. At an inspection on the
16th September, 2003, an official was informed that block-making was being carried out, that there was no new structure
and that the only new work that had been done was the replacement and extension of an old yard for making and storing
the blocks. That information did not prevent the Council from sending a warning letter on the 29th September, 2003.
3. A submission on behalf of the applicant also did not convince the Council and there was another inspection on the 10th
November, 2003 by a planning enforcement official, who recommended that an enforcement notice be issued, which
happened on the 21st November, 2003. There followed correspondence between solicitors for the applicant and the
planning authority and at least one meeting was held, but no further steps were taken to prevent the use of the quarry
for block making.
4. The applicant company was making the case that the block making was exempted development within the meaning of
s. 4(1)(h) of the 2000 Act. It also contended that quarrying and concrete production had been going on at the site since
before the 1963 Local Government (Planning and Development) Act came into effect and block-making was not different
in kind from producing readymix concrete. Some block making was also part of the quarry’s history. The matter remained
unresolved when the Council sought a decision from the Board.
5. The planning authority asked for the Board’s assistance under s. 5 by way of letter of the 4th May, 2006. It is clear
from the heading and the contents of the letter that the principal area of concern to the local authority was the block-
making facility. But it did mention the information from the operator of the quarry “that the only new work carried out was
the replacing of an old concrete yard, the extension of the yard for the making and storage of blocks.” The Council
enclosed its enforcement file and the letter set out factual information as well as the Council’s understanding of the
developer’s contentions. There was no adequate factual basis for some of the stated information but neither the
Inspector nor the Board relied on those facts and so they are irrelevant to the issues in this case.
6. The respondent’s inspector reported on the 17th November, 2006, and the Board’s decision is dated 13th December,
2006. The conclusions and decision of An Bord Pleanála are based on and follow the Inspector’s report, repeating in the
decision all but one of ten recommendations made by the inspector. The decision under s. 5(4) of the 2000 Act is that
the block-making operation at the applicant’s quarry is development and is not exempted development.
7. The applicant makes his challenge by reference to the inspector’s report which is the foundation of the adverse
decision made by the Board. There are three issues in the case:-
(a) Did the Board’s Inspector apply s. 4(1)(h) correctly?
(b) Did the Inspector apply the correct test in deciding that there was a material change of use and/or was the
Inspector’s approach to this question irrational?
(c) Did the Inspector fail to distinguish between the concepts of works and use in the 2000 Act in coming to the
conclusion that there was a change of use?
8. If any of these questions is answered in the affirmative, the decision was flawed and the applicant is entitled to an
order quashing it. As to other minor grounds advanced by the applicant, including an argument as to fair procedures, I do
not think that they are of significance.
9. This Court directed that a telescoped hearing be heard in which both the leave and substantive applications are heard.
This does not obviate the need for the applicant to meet the criteria in order for leave to be granted, but since all the
issues were debated at the hearing, it follows that if the applicant succeeds in its application on the substantive
question, consideration of the leave issue is unnecessary.
10. The notice parties took no part in the proceedings. Counsel for the planning authority appeared briefly at the opening
of the case to say that his clients associated themselves with the submissions to be made by the respondent and left
over the question of an application for costs that might arise at a later stage.
11. I should say at the outset that it is accepted on both sides that the role of this court is and ought to be limited in a
case of this kind. If a matter is properly within the field of planning judgment, I should not substitute my own view for
that of the respondent even if I felt entitled to come to a different conclusion than the Board did, provided there is a
rational basis for the finding. See O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. On the other hand, it is very much the
province of the court to see that the Board and its Inspector have properly applied the law and have properly construed
the relevant legislative provisions and have as a result asked the right questions.
12. The first question is whether the Board and the Inspector properly construed and applied s. 4(1)(h) in coming to the
conclusion that development took place at the quarry that was not exempted development. The Board’s conclusions in
this respect appear at para. (d), (e) and (g) of the decision which is as follows:-
(d) the laying out of a hard surfaced area of 2 acres in extent is development,
(e) the laying out of a hard surfaced area of 2 acres in extent does not fall within the scope of s. 4(1)(h) of the
2000 Act, not being works for the maintenance, improvement or other alteration to a structure,
(g) the construction of the yard is development which is not exempted development.
13. It is not disputed that laying out the yard was development. The only question therefore is whether the Inspector
applied the right test, asked herself the right question and approached the issue correctly. The Inspector’s consideration
of this appears on p. 11 of her report as follows:-
“In relation to the enlargement of the yard, which is stated to be about 2 acres in extent, there is no dispute
between the parties that the yard has been extended to facilitate drying and storage essential to the production of
concrete blocks. The operator’s case is that the replacement of the old yard and the extension of the yard are not
visible and that an exemption under s. 4(1)(h) of the 2000 Act applies. Section 4(1)(h) relates to the ‘maintenance,
improvement or other alteration of any structure, being works which affect only the interior of the structure or
which do not materially affect the external appearance of the structure . . .’
“I submit that the replacement/repaving and extension and of a concrete yard would not be described as either
maintenance or improvement of a structure as neither description would allow for an extension of the area. The
term ‘alteration’ is defined to include plastering or painting, removal of plaster or stucco or the replacement of a
door, window or roof that materially alters the external appearance of a structure so as to render the appearance
inconsistent with the character of the structure or neighbouring structures.
I consider that neither the legal definition or the ordinary dictionary definition of ‘alteration’ encompass the concept
of an extension or enlargement as a defining characteristic but rather relates to more minor changes to a structure.
I consider that an extension of the yard has taken place and that this is ‘works’ and is ‘development’, but would not
be described as ‘maintenance, improvement or other alteration of any structure’ and does not therefore fall within
the exempted development provisions set out in s. 4(1)(h) of the 2000 Act and I reject the operator’s arguments in
this regard.”
14. Mr. Galligan SC for the company contends that the work done to the yard surface was an alteration or an
improvement of the structure. Structure includes an excavation and a quarry is an excavation. The work clearly amounted
to the alteration or improvement or even maintenance of the structure and it was not an extension. This applies whether
the structure, the planning unit, is considered to be the quarry as a whole or the concrete yard surface. The Board was
obliged to go on to consider the later part of the exempted development provision in s. 4(1)(h) but it did not do so. This
is a matter of statutory interpretation that it is for this Court to decide. If the Inspector and the Board misconstrued s.
4(1)(h), the application must succeed. The respondent agrees this point.
15. The Board submits that s. 4(1)(h) does not apply to extensions. Counsel Ms. Butler S.C. draws attention to the
applicant’s submission documents to the Board for support for her proposition that the company has accepted that the
laying down of the yard was indeed an extension. She also contends that this is a planning matter in which the Inspector
and the Board have particular expertise and it is for them and not for the court to decide in contradiction of that expert
view unless there are strong grounds for doing so and there are no such grounds in this case. An Bord Pleanála by itself
and through its Inspector felt that this was a development consisting of an extension and the applicant also treated it as
such. The Board’s written submissions express the point as follows:-
Thus a subset of works – those carried out for maintenance, improvement or other alteration of a structure – are
exempted provided they do not materially affect the external appearance of the structure. By implication all other
works – which must include any act or operation of construction, excavation, demolition, extension, repair or
renewal – are not exempted irrespective of whether they materially affect the external appearance of the structure
or not.
At para. E(1), the applicant claims that the Board was incorrect because the exemption under s. 4(1)(h) “extends
to any alteration affecting the external appearance of a structure and is, therefore, not confined to alterations of
the structure itself”. This sentence is a little difficult to parse, but it appears that the applicant contends that the
exemption under s. 4(1)(h) extends to all works that do not affect the external appearance. This is transparently
incorrect. The Act specifically includes “extension” as a type of works but then specifically omits that type of works
from the type that can gain an exemption under s. 4(1)(h). Accordingly, irrespective of whether extension affects
the external appearance, it cannot benefit from s. 4(1)(h). The Act draws a clear distinction between “alteration”
and “extension”. It therefore was not open to the Board or its Inspector to subsume the latter within the former.
For the same reason, contrary to what is suggested in para. E (3), the extension could not be treated as an
“improvement” and avail itself of s. 4(1)(h) as that would again merge two categories of works which the Act has
rendered distinct and separate.
At para. E (5), the applicant complains that the Board and its Inspector did not properly consider the issue of
materiality of impact on the external appearance of the structure. Again, however, this misses the point. As the
types of works engaged in by the applicant did not come within s. 4(1)(h) in the first instance, the question as to
materiality of impact did not arise.
16. It follows that the interpretation of s. 4(1)(h) is central to the decision in this case. I was not referred to any
authority that would assist in the construction of the provision. It is necessary at this point to set out some of the
relevant provisions of the 2000 Act.
17. Section 4(1)(h) defines exempted development as follows:-
“development consisting of the carrying out of works for the maintenance, improvement or other alteration of any
structure, being works which affect only the interior of the structure or which do not materially affect the external
appearance of the structure so as to render the appearance inconsistent with the character of the structure or of
neighbouring structures;”
“‘alteration’ includes-
(a) plastering or painting or the removal of plaster or stucco, or
(b) the replacement of a door, window or roof, that materially alters the external appearance of a structure so as
to render the appearance inconsistent with the character of the structure or neighbouring structures;
‘works’ includes any act or operation of construction excavation, demolition, extension, alteration, repair or renewal
and, in relation to a protected structure or proposed protected structure, includes any act or operation involving
the application or removal of plaster, paint, wallpaper, tiles or other material to or from the surfaces of the interior
or exterior of a structure.”
18. The Board’s argument is that what was done here was that the structure was extended, whether the structure is
considered to be the quarry itself or the concreted area of the floor of the quarry. There was an extension. Since s. 4(1)
(h) covers “maintenance, improvement or any other alteration,” that excludes an extension. The reason it does that is
because the definition of “works” includes alteration of a structure as well as extension. Therefore, the argument goes,
the fact that there is no reference in s. 4(1)(h) to extension means that it was intended to be excluded so that only
alterations that do not constitute extensions or any of the other actions or things in the definition of works, other than
alterations, can qualify.
19. I may mention in passing that no argument was advanced as to whether “maintenance, improvement or any other
alteration”, is to be construed so that other alteration is eiusdem generis with maintenance and improvement. Does the
paragraph permit all kinds of alterations or only alterations that are related to maintenance or improvement? I am not sure
that this question is material to this case, but it seems to me that it could explain why alteration could be given a
particular meaning in s. 4(1)(h) that might not apply elsewhere.
20. I want to simplify s. 4(1)(h) to reduce it to the part that is relevant to this case, whereby it reads: -
“the carrying out of works for the maintenance, improvement or other alteration of any structure, being works
which do not materially affect the external appearance of the structure.”
21. If one inserts into this condensed definition the meaning of “works” from s. 2, exempted development then means the
following:-
“the carrying out of works (including any act or operation of construction, excavation, demolition, extension,
alteration, repair or renewal) for the maintenance, improvement or other alteration of any structure, being works
which do not materially affect the external appearance of the structure.”
22. I think that this approach makes sense. The word “works” in s. 4(1)(h) has to be given its meaning as set out in s. 2.
But the approach suggested by the Board and by the Inspector requires that some of the meanings of “works” must be
excluded for no reason that is apparent from s. 4(1)(h). Neither does it make sense from a practical point of view. If we
ignore any other alteration and simply consider maintenance or improvement, there are many kinds of construction and
extension works that would constitute maintenance or improvement. A person might put on a small extension at the back
of his house similar to what his neighbours did and it makes complete sense that that should be considered exempted
development. If it were not so, planning authorities would be inundated with applications for very small changes in
people’s houses simply because they amounted to extensions. Anything that increases the footprint of the original house
is an extension. This would include the slightest porch or outer door at the front and the smallest addition to the building
beyond the back wall or indeed the side walls. It seems to me that the proposition contended for by the Inspector and
relied on by the Board is untenable. It requires that the word extension be given a special meaning that is independent
and exclusive of the terms maintenance, improvement or other alteration and the result of that is worse than
meaningless; it is actually impossible to apply. This analysis treats the concept of an extension as if it were a term of art
in a criminal statute or a Tax Act and even then in my opinion it might be illegitimate to construe it in the way the
Inspector did.
23. The Board was wrong in its interpretation of s. 4(1)(h), in my view. An extension is not excluded as a matter of
definition. An extension can be an improvement or an alteration. Maintenance and supervision (and other alteration) are
the purposes for which the work is done in exempted development. The definition of works in s. 2 lists the kind of
activities of which any act or operation constitutes works. So, an act of demolition amounts to works; so does an
operation of renewal etc. An act or operation of construction or repair may be required for the purpose of maintenance
of a structure and that is obviously intended to be exempted development, but it would be excluded if the Board’s
submissions are correct. By insisting that the work done must be actual maintenance, improvement or other alteration,
rather than for [the purpose of] maintenance etc., the Board confuses purpose and act and overlooks “the carrying out of
works” in s. 4(1)(h). The paragraph is best understood first by inserting after “works” the words from its definition that
are relevant, that is, excluding references to a protected structure, and secondly by splitting it into its constituent
phrases as follows. I have emphasised some words for clarity: -
“the carrying out of works (including any act or operation of construction, excavation, demolition, extension,
alteration, repair or renewal)
for the maintenance, improvement or other alteration of any structure,
being works which do not materially affect the external appearance of the structure so as to render the
appearance inconsistent with the character of the structure.”
24. The first phrase describes acts, the second purposes and the third effect.
25. It is clear when the paragraph is analysed in this way that work that is exempted development can materially affect
the external appearance of the structure provided it does not make it inconsistent with its own character or that of
neighbouring structures. This is precisely the point that was decided in Cairnduff v. O’Connell [1986] 1 I.R. 73, where the
Supreme Court was satisfied (although Griffin J. had some reservation on the point) that the works did materially affect
the external appearance of the defendant’s house. The Court held that the work was not inconsistent with the character
of the house itself or adjoining houses and was therefore exempted development. The balcony and staircase at the back
of the defendant’s house could well be described as an extension, as well as an alteration or an improvement.
26. I should add perhaps that the word “alteration” does in my view have to be understood in a different sense in s. 4(1)
(h) from its general definition in section 2. When it is defined in section 2 as including painting etc., it has a different
meaning from s. 4(1)(h) which refers to maintenance, improvement or other alteration. The s. 2 definition describes act or
activities, including painting or plastering, which result in a material impact on the external appearance of the building so
as to make it inconsistent with the character of the building or with neighbouring structures. Alteration in this sense
expressly envisages the material impact that is inconsistent with, for example, the character of the building. By contrast
with this, alteration in s. 4(1)(h) expresses purpose. Moreover, the provision excludes work that changes the exterior so
as to make it inconsistent. If one does not accept the different functions of the word in s. 2 and s. 4 (1)(h), alteration
seems to have more or less opposite and certainly conflicting meanings in these two parts of the Act. Even if that were
the case, it seems to me that these provisions and definitions are not intended to express legally watertight and
hermetically sealed concepts and the expressions have to be given their reasonable meanings in the particular contexts in
which they are used. This approach is consistent with proper principles of statutory interpretation, which look to the
overall scheme and the context in which expressions are used.
27. In the result, the Inspector and the Board did not ask the correct question or questions. It was clear that works had
been carried out. The fundamental question therefore was not about the nature of the work done but rather about its
purpose and effect. Did the work make the structure inconsistent with its character? If it did not, the next question was
whether the work was done for the maintenance, improvement or other alteration of the structure. In the circumstances
of this case, I think that neighbouring structures did not enter into the question of whether the works made the quarry
inconsistent with them.
28. This misunderstanding of s. 4(1)(h) in its statutory context is fatal to the decision made by the Board.
29. I now turn to the second issue that has to be considered. The Board’s conclusions on this were: -
“(h) The manufacture of blocks is dependent on the use of a large area of land for drying and storage which gives
rise to material planning effects, and
(i) The production of concrete blocks is an intensification of use that consists of a material change of use of the
land:”
30. The Inspector’s reasoning appears at pp. 11 and 12 of her report. In the following quotation, which is a single
paragraph in the original, I have broken the passage into two for ease of discussion.
“Manufacture of concrete blocks
“I propose to now discuss the manufacture of concrete blocks and whether or not this constitutes a material
change of use. In relation to the production of blocks instead of 25% of the production of readymix I accept the
points made on behalf of the operator in relation to the absence of material planning impacts in terms of the type
and quantities of raw materials used and the traffic implications. I agree that the development would not constitute
an intensification of use above the production level of the concrete in terms of materials sourced from the site and
then processed and exported from the site in relation to noise and dust impacts, I note that the hard surfaced yard
is close to a dwelling house and consider that the regular movement of blocks would be likely to give rise to some
additional noise and dust related disturbance. In addition, as the operators submissions indicate there are material
changes in terms of the land use requirements as the concrete block production relies on the use of an extensive
area of land for the purpose of open storage and I consider that in this respect there is a significant change in the
nature of the process and an intensification of use of the lands.
“The production of concrete blocks is reliant on the laying out of 2 acres of a 130 acres site, of which only 96 acres
is used for excavation, and the use of that land for drying and storage of blocks. There are changes in terms of the
surface water flows in the area and the extensive nature of the operation in land use terms compared with the
production of readymix with possible resulting impact on geology and hydrogeology. The development of an
extensive hard surface area at this location would also militate against the development of a habitat which would
potentially be of ecological importance and this is a further consequence in terms of the proper planning and
sustainable development of the area. I conclude that the development of a 2 acre hard surfaced area has material
planning consequences. The process of production of concrete blocks is therefore materially different to that of
production of readymix and constitutes a material change of use.”
31. The applicant company challenges the decision of the Board and the conclusions of the Inspector in respect of
material change of use on the grounds that the Inspector did not approach the question in a legally appropriate or
permissible way and, secondly, that she took into account irrelevant considerations and appeared to have confused or
conflated the concepts of works and use in the legislation which is of central importance in this case.
32. The Board’s responses are summarised in two paragraphs of its written submissions. As to the decision on
intensification of use para. 19 says:
The Board followed the Inspector’s recommendation in concluding at (h) that the manufacture of blocks was
dependent on the use of a large area of land for drying and storage which gives rise to material planning effects and
at (i) that the production of concrete blocks was an intensification of use that consists of a material change of use
of the land. It is submitted that the Board’s conclusion on this point was amply supported by the material before it,
principally the inspector’s report.
33. On the complaint that the inspector and the Board failed to distinguish works from use in the interpretation and
application of the legislation, para. 22 set out the definition of “use” in s. 2(1) and para. 23 submits:
The Applicant’s reliance on this measure is misplaced. The purpose of the exclusion in the definition, as noted by
Keane J in Kildare County Council v. Goode [1999] 2 I.R. 495 is simply to ensure that planning permission is not
required for statutorily exempted works merely by reason of the fact that the carrying out of such works would also
be a use. The two categories are not mutually exclusive and the Supreme Court recognised that certain activities -
in that case notably quarrying- may be characterised as both. Moreover, there is no authority for the proposition
that the materiality of a change of use cannot be assessed by reference to impacts associated with works.
34. The applicant’s contention is first that the inspector failed to establish an essential baseline for the planning impacts
that result from the original use, for the purpose of comparing those impacts with the results of the present use. The
earlier use “A” must first be established before it can be compared with the later use “B” and the proper mode of
comparison is not simply to assess the difference in the nature of the operations but to contrast the planning impacts of
the two different activities or levels of activity. It seems to me that this is requiring too formal an approach by a planning
Inspector. I think it is legitimate to consider the available evidence and to deduce to the extent that is legitimately
possible the quantum of change that has taken place and the resulting planning implications. And that is primarily a matter
for the planning Inspector and not for the court. Mr. Galligan S.C. for the applicant relies on Galway County Council v.
Lackagh Rock Company [1985] 1 I.R. 120 but I do not read that case as laying down a rigid rule as to the mode of
comparison or as excluding reference to relevant evidence. I reject this ground accordingly.
35. Another objection that the applicant makes in relation to the taking into account of irrelevant considerations has more
substance. If the Inspector had stopped about half-way down the paragraph I have quoted above, at the point where I
have made a break, I think that this error would have been avoided. Although I believe that the evidence is fairly thin, it
is nevertheless in the realm of planning to consider all the matters that the Inspector detailed up to that point in her
analysis. Had she reached a conclusion as to material change of use at that point, I do not think that it could be
challenged since I have rejected the applicant’s main complaint that it failed to establish the original use.
36. The problem is that the Inspector then went on to take into account matters that in my view were irrelevant to the
issue or that were speculative or confusing and the combination of these inappropriate conclusions and observations with
the earlier, legitimate ones contaminated the process and rendered it invalid. Let me be more specific. The visual impact
of the development when viewed from surrounding lands is of questionable relevance in this case to the issue of material
change of use; the fact that natural regeneration of the site could have occurred if the area was not surfaced is wholly
irrelevant – it may be relevant to other aspects of planning process but I simply cannot see how that matter can affect a
decision as to whether there has been a material change of use. The next sentence in the Inspector’s reasoning deals
with changes in surface water flows with “possible” resulting impacts on geology and hydrogeology. The hard surface
“would also militate against the development of a habitat which would potentially be of ecological importance”. This
includes no more than possible impacts and changes that might potentially be of ecological importance. This is not the
language or the thinking that is expected of an expert making an assessment for the purpose of reporting to a statutory
body such as the respondent. The Inspector’s conclusion could have stood on its own but was fatally undermined and
devalued by the inclusion of these irrelevant matters, some of them only on a basis of possible or potential impacts. The
Inspector’s conclusion on this question as to material change of use must also be invalidated.
37. Turning to the third objection that has to be considered, namely, the proposition that the Inspector has invalidly
confused or conflated “works” and “use”, I think this complaint is also justified. In the case of an exempted development,
the qualifying works can be undertaken because they are excluded from the planning process. It follows that they will
often if not always affect the ecology of the land on which the works are carried out. They will do so more or less
permanently. If an addition (or extension) is built to the front or the rear of a house, the ground underneath is
permanently affected, so are the water flow and the ecology. The same consequences arise where the planning authority
gives planning permission. In Cairnduff v. O’Connell, Finlay C.J. said with reference to the similar exempted development
provision in the 1963 Act:
“The scheme of the statute, however, appears clearly to me to be that work by way of construction or alteration
and a change of user are separately dealt with. Therefore, to construe the section as to permit on unbuilt land the
carrying out of works which are an exempted development but are for the purpose of adapting that land for a clear
change of user and to prohibit the carrying out of works within the same category on a structure would, in my view,
be to create a meaningless anomaly.”
38. A planning authority will take into account the use to which developed land will be put when it is considering whether
or not to give planning permission. There is therefore an overlap of the concepts of works and use when permission is
being granted. The same consideration can arise if the development is exempted. Part of the process deals with the works
that are actually carried out on the land and then there is the use to which the developed area is put. If an exempted
development were put to a use that was wholly inconsistent with the building then the local authority might challenge it
because it was a material change of use of the land.
39. That is the situation that arose in ESAT Digifone v. South Dublin County Council [2002] 3 I.R. 585. There, the real
issue was not the works but the change of use from a business outbuilding to a centre of communications, which was
considered a material change of use and was condemned on planning grounds as a result. Kearns J (as he then was) said,
at p. 596:
“Insofar as the placing of telecommunications equipment is concerned, I cannot see how, insofar as the same may
be described as works, it can be seen as going to either the “maintenance, improvement or other alteration of any
structure” so as to qualify for exemption under s. 4(1)(g). It seems to me that the activity associated with the
placing and utilisation of the telecommunication equipment falls to be considered more properly as a change of use,
whether taken together with the placing of the antennae or by itself.”
40. Suppose the householder builds a modest extension to his house. If it is consistent with the neighbouring structures
that will constitute exempted development, generally speaking. If he uses that as a kitchen or a garage or an extra
bedroom that is consistent with the whole structure as extended. However, if a communications company were to load up
the extension with sophisticated electronics for the purpose of supplying a major part of a city with a mobile phone
service, the situation would be entirely different. It would not be entirely different by reason of the works that were
carried out, but because of the radical change to the use of the premises. Applying this thinking to the present situation,
it seems to me that the Inspector should have looked at the concreted area and asked the question whether the use of
that area of land for storing or resting or drying blocks in connection with block making operations constituted a material
change of use in all the circumstances. She did not do that. She addressed herself to the question whether the
concreted surface itself amounted to a material change of use and that is where, in my view, she fell into error and did
indeed conflate works and use, as submitted by the applicant.
41. My conclusions on these issues mean that the impugned decision by the respondent must be quashed and I propose
to order accordingly.