Judgment Title: Weston Ltd -v- An Bord Pleanála
Composition of Court:
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 255
THE HIGH COURT
2009 521 JR
AN BORD PLEANÁLA
SOUTH DUBLIN COUNTY COUNCIL
COMBINED ACTION ON WESTON AERODROME
JUDGMENT of Mr. Justice Charleton delivered on the 1st day of July, 2010
1. Weston Aerodrome has recently been renamed Weston Executive Airport. It is controlled by the applicant Weston, which has recently become an unlimited liability company. This airfield is situated in a green belt area of West County Dublin near Lucan.
2. Weston seeks to challenge a decision of An Bord Pleanála (“the Board”) dated the 20th March, 2009, whereby it was refused permission to erect six conjoined light aircraft hangars, together with all associated site works and services, at the northern end of Weston Executive Airport. Weston argues the refusal was wrong, basically because they claim that the Board arrogated to itself from the planning authority powers to stop an intensification of use by decision as to what buildings were appropriate to the current use.
3. The airfield has a history dating back to the 1930s. It began as some basic kind of landing strip. At some stage prior to 1964 the commencement of planning controls by legislation, apparently, a tarmac landing strip was laid down. Within the era of planning control, various applications for retention permission, or for development, were granted either by the local authority or by An Bord Pleanála, on appeal. These included the extension of the existing runway into a nearby farm which had been bought for that purpose. This increased the size of Weston Executive Airport to around 120 hectares. Because the long taxiway associated with the runway was an exempted development under the Planning Acts 2000 – 2007, this was also built in recent times. The premises originally had some outbuildings in which some business associated with an airfield might be transacted and these were developed in accordance with planning permissions or retention permissions.
4. For the purpose of this judgment I need to refer in detail to two prior planning decisions and the conditions attaching thereto before dealing with the decision under consideration in this judicial review. This is both an application for leave, where substantial grounds for challenging the decision must be shown, and a final hearing; as the procedure has been telescoped by order of Kearns P.
8. Notwithstanding this rejection, the application now under consideration was made. This was an application for six aircraft hangars having an area of 11,103m² on the northern end of the aerodrome, near the boundary and orientated to face south west. The area involved is virtually the same as in the 2003 rejection and the location is the same general area, though the orientation is different and the height of the buildings a bit smaller. By decision reference number PL 06S.231394 on the 20th March, 2009, An Bord Pleanála refused permission. The reasons were stated as follows:-
10. In addition, points are argued to the effect that the inspector’s report under s. 34(10) of the Planning and Development Act 2000, which is part of the decision, is irrational and speculative, compounding an error on the face of the record by contaminating the process. That report, it is said, makes an error of law on the issue of intensification of use. By using that erroneous inspector’s report, it is urged, the reasons given for the decision are undermined. The reasons chosen are argued to be incorrect and deliberately chosen to exclude compensation.
Correction of Record
(b) the Board may amend any decision made by it in performance of a function under or transferred by this Act or under any other enactment, for the purposes of -
(i) correcting any clerical error therein,
(ii) facilitating the doing of any thing pursuant to the permission or decision where the doing of that thing may reasonably be regarded as having been contemplated by a particular provision of the permission or decision or the terms of the permission or decision taken as a whole but was not expressly provided for in the permission or decision, or
(iii) otherwise facilitating the operation of the permission or decision.”
Burden of Proof
12. In Lancefort Limited v. An Bord Pleanála (Unreported, High Court, McGuinness J., 12th March, 1998), the following passage on the burden of proof, at pp. 21-22, which applies as much to a planning authority as to An Bord Pleanála appears:-
“A planning authority is a public authority with a decisionmaking capacity acting in accordance with statutory powers and duties. In my view, there is rebuttable presumption that its acts are valid.”
It appears to me that this submission… is wellfounded. The onus of prove [sic] in establishing that An Bord Pleanála did not consider the question of environmental impact assessment… and thereby rebutting the presumption of validity of the Bord’s decision, lies squarely on the Applicant. That burden of proof, it seems to me, has not been fully discharged.
In addition, the Court has discretion in regard to Orders sought by way of judicial review. In this case, the Bord had before it ample material on which to make its decision. The report of the inspector raises and refers to many of the matters which would also be covered in a environmental impact assessment. Finally, no participant in the oral hearing suggested that an environmental impact assessment was required. … Bearing all these matters in mind I would be reluctant to exercise my discretion in favour of the Applicant on this point”.
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in -
(ii) a report of a person assigned to report on an appeal on behalf of the Board,
16. In Deerland Construction Limited v. The Aquaculture Licences Appeal Board  1 IR 673, the statutory provision just quoted was under review. A general reference was made in the decision to refuse such a licence by reference to the mater before the appeals board. Kelly J. struck down this approach stating at p. 695 of the report that:-
(92) I do not see why an applicant such as the applicant should not know from reading the decision the reasons for it. That is what the legislature expressly required when it passed s. 10 of the Fisheries (Amendment) Act 2001. It is not good enough that an applicant, in order to find out the reasoning, if any, should have to trawl through board minutes and then through a technical adviser's report running to some 52 pages in order to try and glean the reasons for the decision in suit.
(93) Even at that it is to be noticed that the first respondent did not utilise the formula suggested in the final paragraph which I have quoted from Simons' work, but contented itself by merely saying that it decided to issue a licence as recommended in the technical adviser's report.
(94) Even if I am wrong in the approach which I have adopted and a more indulgent view of the first respondent's performance should be taken, I note that the technical adviser made a single recommendation based on eight separate conclusions. Is the court to assume that some or all eight conclusions were concurred in by the first respondent? If just some, which ones? And what of their juxtaposition with s. 61 of the Act of 1997?
(95) It has also been suggested that no prejudice was suffered by the applicant because it was put in receipt of the technical adviser's report within a few days of being told of the first respondent's decision. True it is that the technical adviser's report was furnished to the applicant within days of the decision in suit, but the actual approach of the first respondent only became clear in the course of these proceedings and in particular, when the affidavit of the first respondent's secretary was sworn and filed.”
"One device often employed by the courts to overcome the paucity of reasoning in the formal statement of reasons was to supplement same by reference to the planning officer's, or the inspector's internal report ('planning reports'). The reasoning contained in the report would, in effect, be imputed to the planning authority or An Bord Pleanála. With respect, this practice is undesirable and, hopefully, will not survive the amendments introduced under s. 34(10). The statutory requirement (now) is that the decision itself state the main reasons and considerations on which it is based. The report is not part of the decision, and thus no matter how detailed the reasons contained therein, it cannot be regarded as fulfilling the statutory requirement. This would be the position even were the formal decision to include an express cross-reference to the report, such as 'the board decided to grant permission in accordance with the inspector's recommendations'. The decision itself must state the main reasons and considerations.
19. But, in addition, of themselves, Weston seeks to argue against the incorporation of the inspector’s report and that the inspector should not have reached any conclusion which he did in his report, because of serious error by the inspector.
The Inspector’s Report
21. The inspector’s report is a carefully drafted and closely considered document that deals with the site of the aerodrome, the level of activity that might reasonably be regarded as having been permitted prior to 1964, the retention of unauthorised development permissions and planning permissions that are relevant to its operation, the appropriate planning considerations, the objections of those who appealed and the situation on the ground. All that was in the inspector’s report is germane to the appeal. It is both careful and objective. It is honest and it is reliable.
22. Planning applications seek to change the character of a neighbourhood and landscape. The granting of permission can be the fulfilment of a modest domestic ambition or the opening up of what is perceived to be the path to riches. Human nature, with its inescapable tendency to exaggeration, evasion and deception, is an integral part of this process. The role of an inspector under the planning code is to bring objectivity to bear in circumstances where assertions may be made that are unsupported; where what appears on the ground may be different to the maps and plans supplied; and where wishful thinking may be seen in the cold light of reality. An inspector is entitled to make his own observations not only in the context of the arguments advanced in favour of a planning permission, but as to how facts may be assessed. It may be fair to observe, in the context of planning applications especially, that those who seek permission rarely make errors against their own interest.
23. The inspector’s assessment of the application is scrupulously balanced. The proposed development is considered in the context of its overall relationship with the usage of the existing aerodrome. The inspector is not guilty of speculation to suggest that the granting of permission for 11,103m² of light aircraft hangar space suggests an intensification of the use of the aerodrome or a change in the type of aircraft using the facility. Any argument against that obvious proposition in his report is placed in his report in the context of the planning permissions which have already been refused, those which have been granted and what was asserted by Weston when, essentially, a similar application had been made on a previous occasion in 2003. In the context of this application, Weston claimed that it was accommodating some 100 aircraft on the aerodrome. In fact, 30 aircraft were found to be outdoors on site during the inspector’s visit and 20 were in the hangar. It is said on affidavit that aircraft disappear in the morning and come home at nightfall; rather like some species of roosting birds. In previous planning applications, Weston had indicated that 80 aircraft were accommodated on site. No justification at all is given by Weston for the change. The inspector was right to query a 25% increase in recent years in the total number of aircraft claimed to be serviced on site, from 80 to 100, and to compare that with the 50 aircraft actually present on the day of his inspection. A 25% increase, in the context of airport activities, might reasonably be regarded as substantial in terms if intensification of use. The absence of an explanation is also important.
24. Whereas Weston have claimed on affidavit that the use of the airport is controlled by previous planning permissions and by the Irish Aviation Authority, that is a statement that needs to be qualified. It should not be taken at face value. Previous retention of unauthorised development decisions or planning permissions had been granted for the retention or development of limited facilities at the aerodrome, on the basis that any increase in the intensity of use of the aerodrome, now called an airport, requires a separate planning permission. The Irish Aviation Authority has had no role in deciding on the number of flights to and from what is now called Weston Executive Airport. Instead, they have restricted the range and capacity of aircraft entitled to use its runway by reference to approach speed, thereby ruling out heavier jets, and by reference to capacity and aircraft type. This has no effect on the number of flights. While the Irish Aviation Authority has control over Irish airspace and Irish registered aircraft, it is inaccurate for Weston to aver on affidavit that they have any power to control the use of an airport or the buildings that may be appropriate for an established use. That requires planning permission and the democratic consultative process which goes with any application to intensify use or otherwise develop land. These controls are vital to the local, and to the national, community.
25. Any planning application must be processed with scrupulous rigour. The inspector was right to query the figures proffered in the context of aircraft movements; meaning take-offs or landings. These supposedly indicate an established user according to Weston. The aerodrome was, in fact, previously used extensively for training flights which could include 12 or more take offs and landing as part of pilot training, called “touch and go”. The inspector noted that prior to the acquisition by Weston of the aerodrome in 2002 detailed records of flight movements to and from the site had not been maintained. Between 2005 and 2007 a 10% increase of movements were recorded. This, for an aerodrome, is capable of being regarded as substantial. The relationship of “touch and go” landing and take off for training pilots with the aircraft movement numbers claimed now by Weston could reasonably have been queried.
26. Having taken these matters into account the inspector recorded:-
28. Whereas Weston have argued that the nature of aircraft have changed over time so that it is now less appropriate to leave aircraft in the open air, because of their sophisticated computerised avionics, it should be borne in mind that permission has already been granted for 3,500m² space of hangarage accommodating 20 or more such sophisticated aircraft, a substantial number given what can be objectively gleaned as to the established user at this airfield.
29. The Court has no legal authority to substitute any view which it might have for the views expressed by the inspector, unless they are shown to be manifestly unreasonable so that they fly in the face of fundamental reason and commonsense. That case has not been made out.
Intensification of Use
32. The law as to intensification of use is not, in my view, either a judicial invention that is subject to abuse or a distortion of planning laws. Rather, it is an integral part of the planning code whereby what could reasonably be regarded as authorised prior to the introduction of planning regulation in 1964 may be held to that level so that development through stealth, that undermines the character and amenity of an area, is not made an exception to proper control under planning legislation. Had the law not developed control over intensification, a large gap in regulation would have been opened up. The de minimis exception to the enforcement of planning controls where permission is granted should be born in mind in this context. That is the standard for accepting a departure from development, and an intensification of use beyond what may reasonably be expected at a site should not be made an exception to planning controls. To do that would be to modify the law.
33. With these considerations in mind, and having regard to the case law, I wish to offer some further observations. It seems to me that the decided cases, up to this point, have identified five principles by reference to which a material change of use through the intensification of, ostensibly authorised, activity may be found to exist:-
(2) A change in the method of production, whereby a low level of production is geared into an industrial scale, through the application of chemicals or machinery, may lead to a finding of intensification. In Patterson v. Murphy  I.L.R.M. 85 blasting had replaced manual extraction. In addition, stone crushing and grading plant and machinery had been introduced. The labour force had also expanded. These factors may be identified as important
(3) The most common complaint of intensification of use, amounting to an unauthorised development, arises in a comparison of the scale of operations at the time when an application is brought to injunct that level of use pursuant to s. 160 of the Planning and Development Act 2000 as amended, as compared with the prior use. Here, as I have previously said, some reasonable, but not extensive, level of variation should be seen as integral to any business. This should not be used, however, as an excuse to circumvent planning controls through gradual accretion. If the base line is a pre-1964 use, a historical comparison of what was then done, and what was then possible, in terms of technology, labour force and output is a right point for comparative purposes to the date of proceedings. If there was a grant of planning permission, after a pre-1964 use or independently, then what might objectively be regarded as authorised is a point of comparison. Using a motor racing track every day is an intensification of use, as compared to a planning permission which authorises it on a weekend, or during a particular part of the year; so is using screeching drag racing cars in place of quieter motor vehicles; Lanigan v. Barry,  IEHC 29 (Unreported, High Court, Charleton J., 15 February, 2008). Markedly increasing extraction from a quarry so that there is substantial increase in the toeing and froing of lorries can also amount to an intensification; Cork County Council v. Slaterry Pre-Cast Concrete Limited  IEHC 291 (Unreported, High Court, Clarke J., 19 September, 2008). A material change by increase in production process can amount to an intensification of use: Galway County Council v. Lackagh Rock Limited  I.R. 120.
(4) Since the concept of intensification of use is one which relates to considerations of proper and sustainable planning, the Court has regard to “the effects in planning or environmental terms of such intensification in order to assess whether there has been a material change for planning purposes”; per O’Sullivan J. in Molembuy v. Kearns  I.E.H.C. (Unreported, High Court, O’ Sullivan J., 19 January, 1999). A more successful use of particular land, which has a low impact in terms of such planning considerations as traffic, visual amenity, appropriateness to the area, strain on infrastructure and sustainability, will not necessarily be found to be an intensification of use; Dublin County Council v. Carty Builders and Company Limited  I.R. 355. In Cork County Council v. Slattery Pre-Cast Concrete, Clarke J. at para. 7.5 stated:-
“The assessment of whether an intensification of use amounts to a sufficient intensification to give rise to a material change in use must be assessed by reference to planning criteria. Are the changes such that they have an effect on the sort of matters which would properly be considered from a planning or environmental perspective? Significant changes in vehicle use (and in particular heavy vehicle use that might not otherwise be expected in the area) or one such example, changes in the visual amenity or noise are others”.
The nature of the activity in question is therefore vital. An airport can be regarded as causing high environmental stress and, from the point of view of the community living in its vicinity, a close need for appropriate regulation. Whereas it might be thought that an increase by a chicken farm in the number of eggs or live birds produced might be within the range of appreciation that is integral to the law in this area, a much smaller increase in the traffic to an airport is to be regarded from a planning perspective as considerably more serious. As the de minimus rule is the only exception to full compliance with a planning permission, it is hard to see how substantial deviation from an established use can be regarded as consistent with the legislative intent enshrined in the Planning and Development Act 2000, as amended, that any development be subject to proper scrutiny. I do not see intensification, either gradual or sudden, openly or by stealth, as capable of being lawfully used to avoid planning controls.
(5) If there is a planning permission in an intensification of use claim, then it must be construed objectively as to what it permits. If there is pre-1964 use, then the gathering of evidence by way of ordinance survey photographs and the testimony of those in the area is a useful way of finding the historically appropriate level of usage. In principle, both pre-1964 use and existing planning permission construction are the same. The question is: what is permitted by law on this site? The intensification of the use of development which is already subject to planning permission can give rise to a material change in use. What one has regard to in these instances is the documents lodged in support of planning permission, the nature of the permission granted, and any conditions attached thereto. As is pointed out in Simons ‘Planning and Development Law’ (2nd Ed., 2007) at para 2- 64, even if no use is formally specified, the letter in support of planning and the documentation accompanying the planning application, will imply “the level or scale at which the development is to be carried on”. That statement is correct. In the planning permissions referred to here and, as I understand from Simons, it is “almost a universal condition of all planning permissions that the development be carried out in accordance with the plans and particulars lodged with the application, or as part of a response to any request for further information”. Therefore, a court adjudicating on whether there has been a material intensification of use looks, in the context of existing planning permission, to what has been allowed, seen against the backdrop of what has been sought. It seems to me to follow that where an industrialist has lawfully carried on an activity of manufacturing with twenty machinists, that a grant of planning permission for a factory accommodating 200 such machinists is, of the nature of that process, an authorisation of intensification of use. Older applications used to be less detailed, so what was permitted is harder to construe from them. This issue of the implication of use from the grant of planning permission will rarely cause problems in the context of modern applications. Detailed applications are appropriately made to planning authorities asking for a development in order to do something like live in a bigger house, or operate a pharmaceutical factory, or process fish in a massive factory. If there are any areas of uncertainty the planning authority can ask questions both as to the physical development and what is to be done on site. Both are within planning controls. If there is ambiguity as to what is sought, the planning authority should ask appropriate questions. The purpose for which planning permission is sought, and its relationship to the development plan for the area, is integral to the planning process. Thus, in the last example given, no industrialist would seek permission to build an empty factory. That flies in the face of common sense. Rather, it is specified in the planning application what is proposed to be done there and how many people will be employed in that activity. It is possible that earlier planning permissions, when the process was less precise, will have to be construed closely so as to seek out, by reasonable and necessary implication, what it is that was permitted.
35. It is not wrong for a planning authority, or An Bord Pleanála on appeal, to refuse planning permission on the basis that the development proposed is consistent with a more extensive use of an existing facility such as that which would amount to an intensification of use. In Kelly v. An Bord Pleanála (Unreported, High Court, Flood J., 19th November, 1993), the applicants had been engaged in scrapping motor cars at an address in County Kildare, but without planning permission. They applied in 1987 to regularise their position. Kildare County Council granted permission for retention of the development but subject to a condition that it should not be intensified “in scale, area or mode of operation from the level at the date of granting of this permission”. Four years later the applicants made an application for a planning permission to erect a new and larger workshop with stores on the site of the existing buildings. This application was refused by Kildare County Council, inter alia, on the basis that the new development would involve the erection of a “new permanent structure on the site, which would permit and facilitate an intensification of use and increase in activity on the site which would materially contravene” the prior condition as to intensification of use. The decision was appealed to An Bord Pleanála and permission was refused. The schedule indicated that the Board considered that the size of the proposed building was excessive in relation to the scale of the scrapyard business carried on at the site and “it is considered that intensification of use, and, increase in activity on the site, which would be likely to arise from the said proposed development, would be contrary to the proper planning and development of the area”. Blayney J. struck down that decision in an unreported judgment of 6th April, 1992, quoted by Flood J. in his judgment in Kelly v. An Bord Pleanála (but otherwise unavailable). Blayney J. held:-
In my opinion…the Board’s decision is not in disregard [of the decision of Blayney J.] of April 6th, 1992 and does not proceed upon the same defective and incorrect assumptions. It proceeds on the basis that the proposed building was inappropriate to the authorised throughput of the scrap-yard and unnecessary.”
39. I am assisted by this authority to reach a decision that An Bord Pleanála was correct in refusing this application for six hangars at Weston Executive Airport covering some 11,103m² and catering for potentially a further 110 sophisticated aircraft. On the prior planning applications of Weston, it cannot have been expected by any reasonable planner that they exaggerated the number of planes using the airport. That would have been a mistake against their commercial interest and, in this context, very unlikely. Since that level was set at 80, and since a more recent planning permission has given the space for 20 to 30 aircraft in hangars covering 3,500m², and since 30 aircraft are parked outdoors, it has become impossible to attempt to undermine this decision by reference to any alleged error of law, or any basis whereby it is asserted that it flies in the face fundamental reason and common sense.
40. On the contrary, the refusal of any further hangar space to Weston by An Bord Pleanála is impeachable. A reasonable intelligent person reading the decision of objectively would find that it accords with the proper use of Weston Executive Airport and has been arrived at in consequence of a proper process and for rational and legally correct reasons.