A case against a company involved in the defective blocks scandal across Donegal has been adjourned for a Judge to consider her verdict after it heard the business was forced to close after a public boycott.
The case involving Cassidy Brothers Concrete Products Limited was called at Buncrana District Court before Judge Éiteáin Cunningham.
The case has been taken Donegal County Council against the company for non-compliance with planning conditions at its quarry headquarters at Gransha, Buncrana.
It follows an enforcement order served on the company in May, 2022 which was followed by a summons being issued in January this year.
The conditions included that the company pay a number of financial contributions to Donegal County Council which amounted to more than €670,000 in relation to the quarry.
The money was part of conditions laid down by the local authority in granting planning permission for continuation of the quarrying works.
Other conditions included the resurfacing of a road, the construction of pedestrian crossings and the widening of a junction at the site.
A director of the company, Ms Natasha Cassidy, told the hearing that although they had started to pay the contributions, a boycott resulted in customers not paying and their income ceased.
She explained “It was a campaign to boycott the company; a campaign of intimidation against employees and customers and it came to the point where someone was going to get hurt,” Ms Cassidy told the court.
“We made an executive decision to suspend manufacturing operations and laid off staff.”
Staff were put on notice in June 2021, she said and the last blasting of rock took place in April 2021.
Ms Cassidy added that no extraction works have taken place since around August 2021.
The family operated the quarry since 1980, but could not continue as a result of the campaign, she added.
Having entered into a financial agreement over a contribution of €139,058.28 to Donegal County Council, the company paid nine months of instalments before becoming unable to continue.
“We weren’t receiving any money because customers wouldn’t pay,” Ms Cassidy said. “It was very acute. The business closed within two weeks. We are not in a position now with these financial contributions.”
The council was represented in the case by solicitor Kevin McElhinney while Cassidys was represented by Mr Oisin Collins SC, instructed by Éamonn Dillon of Edmond J Dillon Solicitors, Listowel, County Kerry.
The main witness for the council was Planning Enforcement Officer, Mr Martin McDermott.
He outlined the council’s case stating Cassidys had been granted planning permission for the site initially in June, 2020 but said that discussions on the permission had gone on for a year and a half after that between agents for the operator and the council.
On September 15th, 2020, Mr McDermott visited the Gransha site and noted 18 of the original 23 conditions that had not been complied with.
The council issued a warning letter to the company in November, 2020 and discussions continued between the parties until February, 2022.
There was ‘initial compliance’ for a year. In a follow-up site inspection in April 2022, Mr McDermott said he established that six of the 18 issues of non-compliance were either outstanding or part-outstanding and an enforcement notice was issued in May 2022.
A visit to the site in August 2022 by Mr McDermott found the gates of the quarry closed with no evidence that the quarry was in use.
The non-compliance issues surrounding the outside road issues and conditions could be established as this was outside of the closed premises, added Mr McDermott.
These infrastructural issues related to an upgrade of the Mill Brae junction, the intersection of Gransha Road and Looking Glass Brae, to provide a widened kerbline as heavy goods traffic was mounting and damaging the kerbs.
As well as these, two pedestrian crossings were to be installed at Gransha Road as well as various signage.
Various monies, in respect of a security bond and financial contributions relating to road works and development charges, and which totalled €671,199.64, were still outstanding, Mr McDermott said and were due to have been discharged by December 2020.
Barrister for Cassidys, Mr Oisin Collins SC, put a number of issues on behalf of his client to Mr McDermott.
He initially put it to the council engineer that was it not the case that his client simply could not go out and carry out the infrastructural works because it simply did not have advance planning approval to do so.
He suggested “My client cannot, in the real world, carry out upgrades of 450 metres of road without long discussion and prior agreement. Is my client to go out blind and commit offences under the Roads Act?
“It is simply impossible for my client to comply with that condition. There was no written authorisation or permit or licence for the work and we don’t know what those road works are, would be or could be.”
He said that it was his client who had tried to keep the lines of communication open with the council and also said his client had received ‘repeated apologies’ from the Council over delays in communication.
He cited 37 instances of communication between the parties saying “It’s not like nothing has happened.”
Addressing the reasons why Cassidys had failed to continue their payments, Mr Collins outlined the “complete hiatus” in work since September, 2021.
“The quarry was then closed and in 2022 enforcement proceedings began.
“How are they going to do these things? They have stopped trading, the gates are closed. They are not quarrying material. They are not generating revenue. It is an impossibility for my client to comply.”
“Isn’t it clear that repeated efforts were made and my client was being hampered in response because the Council had Covid and other issues?” he said. “How can blame be laid at my client’s door?”
Mr McElhinney said that ‘other options’ were opened to the defendants, but these were not acted upon.
“An enforcement notice was served and never challenged in the proper manner,” Mr McElhinney said. “The requirements of the enforcement notice were not complied with.”
Mr Collins argued that it was ‘quite clear that no enforcement notice should have been served and no prosecution brought’.
He added that the court knows well that someone cannot be brought on a criminal sanction for “something they could not do.”
“My client has been operating since the 1980s, and it responsibly sought planning permission and did so unusually in time to prevent there being a hiatus under various permissions,” Mr Collins said.
“It did appeal to An Bord Pleanála and thought better to try and resolve at a local level rather than national. Engagement happened across all fronts. There was a degree of delay arising from the Covid-19 hiatus which impeded the process.
“For other reasons entirely, my client was the subject of protest and chose, reluctantly, to close its gates. My client simply is no longer in a position to give effect to the financial contributions sought or in a position to obtain bonds from any bond house or bank.
“The Court knows well that someone cannot be brought on a criminal sanction for something they could not do.”
Mr Collins asked the court to acquit his client as they ‘simply were not in a position to comply’.
“There is a procedure to recoup money, but not to prosecute a criminal sanction,” he said. “My client tried its best, was thwarted by circumstances and should not be subject to criminal offence.”
Judge Cunningham adjourned the case until January 23, 2024 for finalisation.
