UNAPPROVED NO REDACTIONS REQUIRED
THE COURT OF APPEAL
Neutral Citation Number: [2025] IECA 128
Record Number: 2024/274
High Court Record Number: H.JR.2023.0001047
Costello P.
Hyland J.
Collins J.
IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000
BETWEEN/
FRIENDS OF THE IRISH ENVIRONMENT COMPANY LIMITED BY GUARANTEE AND SMTW ENVIRONMENTAL DESIGNATED ACTIVITY COMPANY
APPELLANTS/ APPLICANTS
-AND-
THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/RESPONDENTS
-AND-
OFFICE OF THE PLANNING REGULATOR, FINGAL COUNTY COUNCIL AND DAA PUBLIC LIMITED COMPANY
NOTICE PARTIES
JUDGMENT of Ms. Justice Hyland delivered on the 5th day of June 2025
1. This decision is concerned with a challenge to a Direction made by the first respondent (the "Minister") whereby he required Fingal County Council ("Fingal or the "Planning Authority") to remove text (known as "PA CH 8.1 as modified") from the Fingal County Council Development plan 2023-2029 ("the development plan"), following a recommendation to that effect by the Office of the Planning Regulator ("OPR"). The text identified that the proposed noise insulation scheme at Dublin Airport was inadequate and that it was an objective of the development plan to take measures to expand the noise insulation schemes for householders operated by the Dublin Airport Authority ("DAA") to meet specified decibel requirements. The proposed noise insulation scheme was a condition of a planning permission, granted by Fingal on 8 August 2022, to the DAA to revise the operating restrictions applicable to the North Runway, thus permitting them to increase the number of flights. That condition was specified by the aircraft noise competent authority ("ANCA") under the Aircraft Noise (Dublin Airport) Regulation Act 2019 (the "2019 Act"),
2. The appeal raises three distinct issues: the impact of admitted mistakes in both the text of the Direction and in the documents in the process leading up to its adoption; whether the trial judge was correct to uphold the Minister's conclusion that PA CH 8.1 as modified was not in conformity with the National Planning Objective ("NPO") 65 of the National Planning Framework ("NPF"); and the adequacy of the reasons given for the Direction. The DAA argued that the decision of the trial judge should be upheld on additional grounds. This judgment addresses one of those additional grounds i.e. the entitlement of the elected members of Fingal to adopt PA CH 8.1 as modified having regard to the provisions of the 2019 Act and the Planning and Development Act 2000 Act (the "2000 Act"), as amended by the 2019 Act.
3. The undisputed errors consist of references in certain documents to the unamended version of PA CH 8.1 rather than to the amended version. The appellants were aware of the modified version of PA CH 8.1, made submissions on that version and were not misled by the error. Under the doctrine of jus tertii, the appellants are not entitled to argue an alleged violation of the rights of a third party, where they cannot show their own rights have been affected. Nonetheless, the substance of the argument is addressed.
4. I conclude that the errors were non-material, and did not hinder the appellants, or indeed anyone else as far as can be ascertained, in making a submission on the draft development plan. Insofar as the appellants complain that the Direction referred to a version of the Chief Executive's report on the draft Direction that referred to PA CH 8.1 pre-modification, rather than a later report that dealt with the modified version, I agree with the trial judge that the Direction can be read in a way which gives it validity. This is because the recommendations in the report referred to in the Direction apply equally to the modified version of PA CH 8.1. Moreover, any person looking at the impugned wording would understand that reference was being made to the Chief Executive's Report prior to the modification, due to the date of the report and the date of the modification of PA CH 8.1.
5. I find no fault in the trial judge's conclusion that the challenge to the Direction involved mixed questions of fact and law and as such involved a somewhat deferential review, given the reference to the Minister's "opinion" under s. 31 of the 2000 Act, and the significant factual elements that the Minister was required to consider. Correctly, the trial judge made it clear that, insofar as any issues before him involved questions of law, the normal de novo review standard applied.
6. Insofar as the legal effect of PA CH 8.1 was concerned, I find it was a noise mitigation measure within the meaning of s.20 of the 2019 Act and would have had substantive legal consequences had it remained in the development plan. It identified the inadequacy (as perceived by the elected members) of a proposed noise insulation scheme which ANCA had required as a condition of the planning permission that varied the 2007 North Runway planning permission. It was entirely inconsistent with that planning condition, given that the objective in PA CH 8.1 identifies a decibel level of 40dB Lnight, whereas the ANCA condition identify a decibel level of 55dB Lnight.
7. NPO 65 refers to the proactive management of noise and supporting environmental noise regulations through planning guidance and noise action plans. The Noise Action Plan ("NAP") in question is the Dublin Airport Noise Action Plan 2019 - 2023. It sets out the legal and policy framework, including Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise (OJ L 189/12, "Directive 2002/49") and Regulation (EU) 598/2014 of the European Parliament and of the Council of 16 April 2014 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Union airports within a Balanced Approach and repealing Directive 2002/30/EC (OJ L 173/65, "Regulation 598/2014"). Its stated core objective is to address airport noise using the Balanced Approach as identified in Regulation 598/2014.
8. I am satisfied that the objective in PA CH 8.1 was inconsistent with the NAP and undermined its core objective, given that the NAP required the application of the Balanced Approach and the elected members did not take that approach. The Minister acted lawfully in concluding that the insertion of PA CH 8.1 was not in compliance with the NAP and therefore constituted a failure to support NPO 65.
9. I also affirm the decision of the High Court on the additional ground that PA CH 8.1 is incompatible with the scheme established by the 2019 Act, whereby conditions on a planning application for Dublin Airport relating to noise insulation schemes may only be made by ANCA. By obliging the planning authority to incorporate the ANCA condition in the ultimate planning decision, the legislature has made it clear that only one body may decide upon noise mitigation measures in the planning context. This statutory scheme precludes the elected representatives from adopting an objective in the development plan that treated the ANCA condition as inadequate and specified a different decibel level at which the DAA is required to insulate homes. By adopting PA CH 8.1 in the development plan, the elected members entered an arena that was already wholly occupied by ANCA.
10. Finally, I reject the appellants' appeal on the ground that the Minister ought to have addressed every submission they made in the consultation process in the Determination. The duty to give reasons does not encompass a duty to respond to all submissions. If the submission is not relevant to the reasons why the decision has been made, then as a matter of logic, a response to the submission does not form part of the reasons and is therefore not covered by the obligation to give reasons. Following Balz v. An Bord Pleanála [2019] IESC 90, the extent of the obligation on the decision maker is to address "relevant submissions" i.e. submissions relevant to the reasons for the decision. Doing so is sufficient to vindicate the trust that members of the public are entitled to have in decision-making institutions.
11. Where a Minister proposes to direct a local authority to take specified measures in relation to a draft development plan, s.31 of the 2000 Act requires that a draft direction must be published, and an opportunity given to the public to make submissions on same. The chief executive of the planning authority must prepare a report on any submissions or observations for the elected members, the OPR and the Minister. Here, the appellants' submissions were summarised in the Chief Executive's report, meeting the concern identified in Balz that the public will trust that their voice will be listened to in the decision-making process.
12. In this case, I conclude the Minister was not obliged to address the specific points raised by the appellants in the consultation process.
BACKGROUND TO THE APPEAL
13. This is an appeal from the decision of the High Court (Humphreys J.) delivered on 17 October 2024 ([2024] IEHC 588) dismissing the appellants' challenge to Part 2(b) of the Planning and Development (Fingal Development plan 2023-2029) Direction 2023 (the "Direction") made by the Minister on 28 July 2023. Part 2(b) of the Direction required Fingal to remove text from the development plan which had been proposed as a material alteration to the draft development plan (the "original PA CH 8.1") and was subsequently modified and adopted at a special council meeting convened on 15 February 2023 ("PA CH 8.1 as modified" or "PA CH 8.1").
14. To properly understand PA CH 8.1 as modified, it is necessary to understand that "the proposed noise insulation scheme" to which it refers is a scheme that has been identified as a condition of a planning permission granted by Fingal on 8 August 2022, whereby the DAA was granted permission to revise the operating restrictions applicable to the North Runway under a 2007 planning permission to permit them to increase the number of flights. One of the conditions of that permission relates to the provision of an insulation scheme by the DAA to householders.
15. That condition was specified by the ANCA under the 2019 Act, following an extensive regulatory process. Under s.3(1) of the 2019 Act, Fingal is designated as the competent authority for the purposes of Regulation 598/2014 and the functions of the competent authority shall be performed by the Chief Executive (s.3(2)). The functions of the competent authority shall be treated as an executive function of Fingal (s.3(3)).
16. The modified version of PA CH 8.1 was identified by the OPR as being incompatible with the existing legal regime. On 22 March 2023, the OPR issued a notice to the Minister recommending that the Minister issue a Direction pursuant to s.31 of the 2000 Act directing that PA CH 8.1 as modified be deleted from the development plan. The Minister followed that recommendation and directed the deletion of PA CH 8.1 by Direction of 28 July 2023. By these proceedings, the appellants seek to quash the Minister's Direction.
17. The appellants are respectively an environmental NGO which has been active in the protection of the Irish environment for over 20 years, including campaigning against the expansion of Dublin Airport, and an environmental NGO representing local residents in planning/environmental matters, in particular regarding airport noise in St. Margaret's and the Ward areas, and surrounding areas in North Dublin/South Meath.
18. I am grateful to the legal teams of both the appellants and the Minister for providing a chronology of events leading up to the Minister's decision, which have informed the below chronology.
CHRONOLOGY OF RELEVANT EVENTS
March 2021:
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Fingal began its review of the draft development plan 2017 to 2023 by publishing an issues paper inviting public submission. |
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2 July 2021: |
The Chief Executive of Fingal (the "Chief Executive") published a report on the pre-draft consultation. |
24 February 2022:
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Fingal published the draft development plan for public consultation and issued a public notice pursuant to s. 12 of the 2000 Act. |
28 July 2022: |
The Chief Executive issued a report on the draft plan consultation. |
8 August 2022: |
Fingal granted permission to DAA for a "Relevant Action" within the meaning of s. 34C of the 2000 Act (Fingal Planning Register Reference F20A/0668) amending two operating restrictions imposed as conditions on the permission granted in 2007 for the North Runway at Dublin Airport. The Relevant Action permission included a condition requiring DAA to put in place a noise insulation scheme for dwellings situated in the 55 dB Lnight contour ("the proposed noise insulation scheme"), as directed by ANCA under s. 34C(14) of the 2000 Act. |
11 November 2022:
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Fingal published proposed material alterations to the draft development plan including the original PA CH 8.1 |
22 December 2022: |
The OPR recommended that the planning authority make the development plan without the original PA CH 8.1. |
15 January 2023: |
The Chief Executive, in a report of 15 January 2023, recommended that the planning authority make the development plan without the original PA CH 8.1. |
15 February 2023: |
The elected members voted at a Special Council Meeting of Fingal to adopt PA CH 8.1 as modified. |
22 February 2023: |
Fingal made the draft development plan pursuant to s. 12 of the 2000 Act, which includes PA CH 8.1 as modified. |
1 March 2023: |
The Chief Executive issued a Notice under s. 31AM(6) of the 2000 Act notifying the OPR that in making the draft development plan Fingal had not complied with the OPR recommendation. |
22 March 2023: |
The OPR issued a Notice to the Minister pursuant to s. 31AM(8) of the 2000 Act recommending that the Minister issue a Direction pursuant to s. 31 thereof, requiring Fingal to inter alia delete the amended and additional text inserted by PA CH 8.1 as modified. |
4 April 2023: |
The Minister issued a Notice of his intention to issue a Direction under s. 31(3) of the 2000 Act to Fingal. That Notice appends a draft Direction requiring Fingal to inter alia delete the amended and additional text inserted under PA CH 8.1 as modified. |
5 April 2023: |
The development plan came into effect in accordance with s. 12(17) of the 2000 Act. In accordance with s. 31(6) of the 2000 Act, the text inserted by PA CH 8.1 as modified did not come into effect pending the decision of the Minister as to whether to issue a Direction pursuant to s. 31 of the 2000 Act. |
18 April 2023: |
Notice of the Draft Direction was published by the Chief Executive in accordance with s. 31(7) of the 2000 Act and a public consultation on the Draft Direction took place between 18 April 2023 and 2 May 2023. |
28 April 2023: |
Friends of the Irish Environment made a submission. |
1 May 2023: |
DAA made a submission. |
2 May 2023: |
SMTW Environmental DAC made a submission. |
30 May 2023: |
The Chief Executive published a Report on the Draft Ministerial Direction Consultation dated 30 May 2023 pursuant to s. 31(8) of the 2000 Act, summarising the submissions received on the Draft Direction. |
19 June 2023: |
The OPR issued a Notice pursuant to s. 31AN(4) of the 2000 Act recommending the issuing of a final Direction requiring Fingal to delete inter alia the amended and additional text inserted under PA CH 8.1 as modified, consistent with the recommendation of the Report of the Chief Executive of 15 January 2023. |
28 July 2023: |
The Minister made the Direction under s. 31(1) of the 2000 Act. Part 2(b) of the Direction requires Fingal to delete the amended and additional text inserted under PA CH 8.1 as modified. |
PLEADINGS
19. Proceedings were initiated on 19 September 2023. The ex parte application was opened and adjourned to 9 October 2023 by O'Higgins J. on the same day with liberty to issue a motion seeking to transfer the proceedings to the Planning and Environmental List. The transfer motion was issued on 22 September 2023 returnable to 16 October 2023. The matter was mentioned on 2 October 2023 and entry and leave were granted by Humphreys J. on 9 October 2023 with liberty to amend the Statement of Grounds.
20. The originating notice of motion was issued on 13 October 2023; the Amended Statement of Grounds was filed on the same day. The respondents filed their Statement of Opposition and affidavit on 12 January 2024. The OPR filed its Statement of Opposition and affidavit on 14 March 2024. Fingal did not file a Statement of Opposition but filed an affidavit on 26 April 2024 exhibiting its Statement of Opposition in the related proceedings DAA plc v Fingal County Council (2023/383 JR). The DAA filed its Statement of Opposition and affidavit on 7 May 2024.
21. The Respondents filed two supplemental affidavits on 25 June 2024. The hearing took place between 24 and 26 September 2024. Judgment was delivered on 17 October 2024. The final order dismissing the application for judicial review was perfected on 6 November 2024.
OPR NOTICE
22. As noted by the trial judge, the core basis for the OPR objecting to PA CH 8.1 was the incompatibility of the proposed amendment with NPO 65. However, there was also an associated line of reasoning based on the 2019 Act. Having addressed the NAP and NPO 65, the OPR's Notice of 19 June 2023 observes that matters of noise control at Dublin Airport are subject to a separate statutory code under the 2019 Act, and that s. 34B and s. 34C of the 2000 Act (as amended by the 2019 Act) establish a regulatory role for ANCA in setting a noise abatement objective. The Notice includes the following:
"The inclusion of PA CH 8.1 in the plan would create overlapping and potentially conflicting regimes with regard to planning policy, the regulatory role of ANCA and the role of Fingal County Council in setting out the Noise Action Plan. DAA noted in its submission that the inclusion of PA CH 8.1 would create a conflict with other legislative provisions and the office would concur with this view.
23. The Notice observes that the wording of the proposed objective seeks to expand the Noise Insulation Scheme operated by DAA to include all areas exposed to 40dB Lnight or higher as produced by aircraft during nighttime, and that this represents a noise mitigation measure, the regulation of which is subject to a specific regime established by the 2019 Act. It observes that the proposed objective would in effect amend the NAP and the scope of the Noise Insulation Scheme without going through the relevant statutory procedures, but that the NAP can only be amended pursuant to the process under Regulation 598/2014. It points out that the objective of PA CH 8.1 is contrary to the provisions of the NPO 65 and will create conflicting overlapping mechanisms which the policy of the legislation seeks to avoid.
MINISTERIAL DIRECTION
24. By letter of 28 July 2023, the Minister wrote to the Chief Executive, indicating that he was of the opinion that a Direction should be issued in line with the recommendations of the OPR. He enclosed a Direction directing Fingal to take two steps with regard to the development plan, the second, paragraph (b), being in the following terms: "Delete the amended and additional text inserted under PA CH 8.1 as modified, consistent with the recommendation of the chief executive's report dated 15 January 2023".
25. The Direction included a Statement of Reasons in the Direction which contained, inter alia, the following reasons:
"V. The development plan as made includes provisions that state that the proposed noise insulation scheme to protect the health of those affected by aircraft noise is inadequate and that it is an objective to take measures including the expansion of noise insulation schemes operated by DAA to include all areas exposed to 40dB Lnight or higher as produced by aircraft during night time, which matters are subject to separate statutory provisions and processes including the European Communities (Environmental Noise) Regulations 2018, the Aircraft Noise Regulation 598/2014 and the Aircraft Noise (Dublin Airport) Regulation Act, 2019. This includes the designation of separate action planning authorities under the 2018 Regulations for the purpose of preparing Noise Action Plans, while the 2019 Act designated Fingal County Council as competent authority for the purposes of Aircraft Noise Regulation 598/2014 and that 2019 Act, which is statutorily independent of the planning authority. The inclusion of an objective in the development plan, which conflicts with and undermines these separate statutory provisions and processes, including the Noise Action Plan, is therefore inconsistent with National Policy Objective 65 of the National Planning Framework.
The inclusion of this particular objective is not in compliance with the provisions of the Planning and Development Act, 2000 (as amended) and the Aircraft Noise (Dublin Airport) Regulation Act 2019 and the exclusive jurisdiction conferred on ANCA and the Chief Executive under the 2019 Act in respect of the subject matter of the objective. There is a conflict with section 15 of the Planning and Development Act, 2000 whereby it is a general duty of the planning authority to secure the objectives of the development plan, and with section 3 of the Act of 2019 having regard to obligations of independence, influence and Direction contained therein.
In particular, the inclusion of an objective in respect of a noise insulation scheme in the Development plan is a noise mitigation measure and noise related action, or in the alternative an operating restriction, without having complied with the provisions of the Balanced Approach or the other requirements of the Aircraft Noise Regulation or the Act of 2019."
PA CH 8.1 - ORIGINAL AND MODIFIED VERSIONS
26. It is necessary to consider the original and modified versions of PA CH 8.1 to understand the differences between them, and the impact of same. The original version is as follows:
"That the development plan recognises the inadequacy of the proposed noise insulation scheme to protect the health of those affected by aircraft noise and that in view of the increasing knowledge and scientific evidence of the serious health impact of aircraft noise on the physical health of Fingal residents that it is an objective to take measures including the expansion of noise insulation to ensure noise levels produced by aircraft during night time are reduced to below 40dB Lnight, as night time aircraft noise above this level is associated with adverse effects including increased mortality, stress, high blood pressure and a deterioration in cardiovascular health".
27. The modified PA CH 8.1 is in the following terms:
"That the development plan recognises the inadequacy of the proposed noise insulation scheme to protect the health of those affected by aircraft noise and that in view of the increasing knowledge and scientific evidence of the serious health impact of aircraft noise on the physical health of Fingal residents that it is an objective to take measures including the expansion of noise insulation schemes operated by DAA to include all areas exposed to 40dB Lnight or higher as produced by aircraft during night time.
The insulation schemes should be designed to ensure that internal noise levels are in keeping with BSI standards publication BS 8233:2014 Guidance on sound insulation and noise reduction for buildings, Table 4: Indoor Ambient Noise Levels for Dwellings, as referenced in Chapter 14: Development Management Standards of the development plan 2023 - 2029. This approach is in response to the knowledge that night time aircraft noise above this level is associated with adverse effects including increased mortality, stress, high blood pressure and a deterioration in cardiovascular health".
28. There was some dispute between the parties as to the substantive difference between these versions. The Minister contended that there was little difference in substance between them, while the appellants observed that there was a concern that the first version could be considered to be a requirement that the noise produced by aircraft during the nighttime was required to be below 40dB Lnight, whereas what was intended was that the areas exposed to 40dB Lnight would be entitled to noise insulation schemes, as no noise insulation could ensure the noise levels produced by aircraft would be reduced to below 40dB Lnight. I do not think I need to resolve this dispute, given that the modified PA CH 8.1 is in relation to the level of noise experienced by specific areas.
NOISE INSULATION CONDITION IN 2022 PLANNING PERMISSION
29. Both the original and modified versions of PA CH 8.1 refer to the "inadequacy of the proposed noise insulation scheme". The scheme in question is required as one of the conditions of the planning permission granted to the DAA on 8 August 2022. To understand the issues between the parties, it is necessary to understand the noise insulation scheme considered to be inadequate. For that reason, I will set out in some detail the factual background to the imposition of the condition as part of the planning permission.
30. The application for planning made by the DAA in 2021 identifies the development being the taking of a "relevant action" within the meaning of s.34C(23) of the 2000 Act relating to the nighttime use of the runway system at Dublin Airport, involving the amendment of the restrictions in the 2007 North Runway planning permission, as well as proposing new noise mitigation measures. The relevant action proposes a removal of the numerical cap on the number of flights permitted between 11pm and 7am daily, and to replace it with an annual nighttime noise quota between the hours of 11.30pm and 6am, as well as permitting flights to take off or land on the North Runway for an additional two hours i.e. 23:00 hrs to 24:00 hrs and 06:00 hrs to 07:00hrs. This would allow for an increase in the number of flights taking off and/or landing at Dublin Airport between 23:00 hrs and 07:00 hrs, over and above the numbers stipulated in Condition 5 of the 2007 North Runway planning permission. The application included a revised noise insulation scheme.
31. The grant of permission of 8 August 2022 notes that the Planning Authority referred the application to ANCA in accordance with s.34C(2) of the 2000 Act, that ANCA determined that the proposed relevant action would result in a noise problem at the airport and, having done so, was required to apply the "Balanced Approach" and to that end established a Noise Abatement Objective ("NAO"). I should explain that the planning application was made under s.34(C) of the 2000 Act as it was in respect of an operating restriction, although the insulation requirement ultimately imposed as a condition of the permission was a noise mitigation measure and not itself an operating restriction. ANCA completed its assessment processes in accordance with the Balanced Approach which included Appropriate Assessment ("AA"), Strategic Environmental Assessment ("SEA") and public consultation. Pursuant to s.34C(14) of the 2000 Act, it published the final NAO and regulatory decision and associated documents on 20 June 2022.
32. That decision permitted the variation of the 2007 permission and directed a revised noise insulation scheme. The impact of the application is set out by the Planning Authority as part of its environmental impact assessment ("EIA"). In respect of the Insulation Scheme, it notes that, as amended by and incorporating the regulatory decision of ANCA, the application would introduce a voluntary Residential Sound Insulation Grant Scheme focused on dwellings situated within the 55dB Lnight contour. It is noted that this is the first time that a sound insulation scheme is proposed specifically for reduction of the effects of nighttime noise, and that eligibility for inclusion in the scheme would be reviewed every two years, as from 2027. The Planning Authority notes that the relevant action application has, over time, the potential to reduce overall noise generation taking into account the NAO, including nighttime noise generation at the airport. It is noted that the NAO would set specific expected outcomes for the reduction of all noise from aircraft operations with monitoring and assessment to ensure achievement of these outcomes. It is also noted that the first, second and third conditions of the regulatory decision of 20 June 2022 are required to be included and incorporated into a grant by the Planning Authority of permission on foot of a relevant action application under s. 34C of the 2000 Act.
33. Turning to the conditions to the grant of permission, the first condition is that the development shall be carried out in accordance with the plans as lodged, as well as in accordance with the ANCA regulatory decision made on 20 June 2022. There is a revision to the existing operating restriction and a further revision to the operating restriction imposed by a condition of the 2007 North Runway planning permission.
34. Condition 5, i.e. the sound insulation condition, is in the following terms:
"A voluntary Residential Sound Insulation Grant Scheme (RSIGS) for residential dwellings shall be provided. Initial eligibility to the Scheme shall apply to all residential dwellings situated within the Initial Eligibility Contour Area as shown in Figure 3.1 - Regulatory Decision, Third Condition. Residential Sound Insulation Grant Scheme (RSIGS) - Initial Eligibility Contour Area - June 2022. Eligibility to the Scheme shall be reviewed every two years commencing in 2027 with residential dwellings situated in the 55dB Lnight Contour being eligible under the Scheme as detailed below."
35. The reason given for condition 5 is as follows: "To mitigate the impact of aircraft nighttime noise as a result of the use of the airport's runways". There then follows a considerable amount of detail in relation to the Scheme stretching over four pages, including a definition of eligibility contour area as follows: "The 55dB Lnight contour area as varied from time to time pursuant to the review process set out in Part 3.2 below". The definition of "target performance" is as follows: "An improvement of at least 5dB where feasible in the sound insulation of each bedroom of the eligible dwelling. Where possible the Guidelines recommended in BS 8233:2014 for internal ambient noise levels shall be targeted." That is important because it is the same standard as that identified in PA CH 8.1 as modified, thus showing that both PA CH 8.1 and condition 5 operate in the same or a very similar sphere of operation.
36. Under the heading "Purpose of the Scheme", it is identified that the purpose is to provide financial assistance by the DAA to property owners in the form of a grant in the sum of €20,000 towards the cost of noise insulation measures to bedrooms in eligible dwellings. There is a reference to the interaction of this Scheme with the existing insulation schemes offered by the DAA i.e., the Residential Noise Insulation Scheme and the Home Sound Insulation Programme. Eligibility conditions are set out. The nature of the insulation is set out in some considerable detail. There are conditions in relation to the acceptance of the scope of works, the engagement of the approved contractor and access to the dwelling by the approved contractor, as well as detail in respect of the nature of the works.
GROUND 1: ERRORS OCCURRING DURING DECISION MAKING PROCESS
37. The first ground of appeal is that the High Court erred in finding that the presence of acknowledged mistakes in the process by which the Direction was made were immaterial and/or further erred in refusing to grant declaratory relief. In summary, this ground arises where, in some of the documentation leading up to the Direction (both from the OPR and from the Minister) reference was made to the original version of the PA CH 8.1 and not to the modified version. However, the only ground of appeal is in relation to material emanating from the Minister. This ground of appeal was elaborated upon as follows:
"That the applicant had identified a large number of errors in the procedure followed by the Minister in preparing the ministerial Direction including in the public notice and the draft Direction and that such mistakes deprived the Minister of jurisdiction to make the Direction and/or was an error on the face of the record. It is argued that the legal effect of the ministerial Direction is to order the removal of text that has already been removed and leaves the text of PA CH 8.1 as adopted by Fingal County Council undisturbed by the ministerial Direction."
38. It is argued that the High Court erred in dismissing the errors as non-material drafting errors and not relevant to the Minister's central concern; failing to consider the cumulative effects of the errors; failing to assess the errors as statutory non-compliance; and excusing the identified errors as harmless and refusing relief.
39. The appellants identify an error in the draft ministerial Direction of 4 April 2023, and the public Notice published on 18 April 2023, both of which erroneously summarise the unmodified version of PA CH 8.1 as opposed to the modified version. Taking the draft Direction first, it identified that, consequent to a recommendation made to the Minister by the OPR and pursuant to s.31 of the 2000 Act, the Minister gave notice of his intention to issue a Direction to Fingal to take the measures specified in the notice. The letter enclosed a draft Direction, part of which directed Fingal to "delete the amended and additional text inserted under PA CH 8.1 as modified, consistent with the recommendation of the chief executive's report dated 15 January 2023". The mistake may be found in the statement of reasons which included a paragraph (iv) that erroneously summarised the text of the original, rather than the modified version, of PA CH 8.1 as follows:
"The Development plan as made includes provisions that recognise the inadequacy of the proposed noise insulation scheme to protect the health of those affected by airport noise and that it is an objective to take measures including the expansion of noise insulation to ensure noise levels produced by aircraft during night time are reduced to below 40 dB Lnight, which matters are subject to a separate statutory code which includes the designation of a separate action planning authority, the Aircraft Noise Competent Authority and the preparation of a Noise Action Plan. The inclusion of matters which should be determined through the appropriate statutory process, including the Noise Action Plan, is therefore inconsistent with NPO 65."
40. That error then made its way into the public Notice of the draft Direction which was published under s.31(7) of the 2000 Act as regards the making of the development plan for the purpose of seeking submissions or observations. The Notice identified the reasons given for the making of the draft Direction, including the reason referred to in italics above. The Notice indicated that the draft Direction was available for public inspection at various locations and identified the date by which submissions or observations were required to be made.
41. Submissions were made by the first appellant on 28 April 2023 and the second appellant on 2 May 2023. Those submissions make it clear that both appellants were aware of the modified version of PA CH 8.1 and that their submissions addressed that version and not the previous version. They were therefore not misled by the error, and they make no argument to that effect. In advancing an argument that the decision is invalid due to these errors they are seeking to make a case on behalf of unknown persons - not themselves - but have not produced any evidence to show that any person was misled by the mistake in the public advertisement or the draft Direction and/or that it impacted on the submissions that were made. Indeed, the issue excited considerable public interest as 163 submissions on the draft Direction were made to Fingal.
42. The appellants are not in my view entitled to assert another person's cause of action where they themselves cannot identify that they suffered any harm. Counsel for the appellants said that because the consultation invited public participation, the public nature of same meant that they were entitled to raise the argument even though they themselves had not been personally affected. He offered no authority in support of this proposition. I do not believe it to be correct. There is no justification for displacing the normal rules on standing in the circumstances of this case. Under the doctrine of jus tertii, the appellants are not entitled to argue an alleged violation of the rights of a third party, where they cannot show that their own rights have been affected. Nonetheless, I propose to deal with the substantive argument since the trial judge addressed it and an appeal has been raised against his findings.
Findings by the trial judge
43. The trial judge refers to the legal submissions of the OPR in the proceedings to the effect that, when the draft Direction is read as a whole and in a way that makes sense, it is obvious that the draft Direction and the public Notice relate to PA CH 8.1 as modified given the reference in the draft Direction to the text "as modified". He refers to the OPR submission that the appellants were not misled or inhibited from making a submission at all. He refers to the DAA's arguments that the alleged errors were not ones which otherwise affect the integrity of the decision. He noted the submission of the Minister that the error in the draft Direction was corrected in the Direction of 28 July 2023, that the Minister was aware of the text of PA CH 8.1 as modified, that the applicants were not in any way misled or prejudiced by the error and the error did not deprive the Minister of the power to make the Direction or constitute an error on the face of the record. The trial judge found as follows:
"113. There certainly are some drafting errors in the material from the OPR and Minister towards the latter stages of the process... and the Council's advertisement reflected that, but the Council can't be blamed because they were required to publish the Minister's text.
114. However, the basic problem for the applicants is that to the extent that the material from the OPR and Minister was erroneous, the errors were immaterial to the Minister's central concern. The essential thrust of the original and modified wordings was insufficiently different in its essentials to make the errors in the notice, draft decision and decision particularly relevant or material. The substance of the OPR and Ministerial objections applied equally to both versions of the contested section of the draft plan. There is no real doubt as to the provision which the Minister wanted deleted. The problem unfortunately comes under the heading of harmless error. It would be an improvident exercise of a discretionary power of judicial review to quash the decision on such a basis."
Analysis
44. I agree with the observations of the trial judge. I do not believe that there is a such a material difference between the two versions of PA CH 8.1 that the summary of the original version in the draft Direction and public notice was so different that it meant that the consultation process was fundamentally flawed. The errors were non-material: they did not hinder the appellants, or indeed anyone else as far as can be ascertained, in making a submission as to the core issue i.e. should there be an amendment to the development plan that would (a) make a finding on the adequacy of the proposed insulation scheme required by condition 5 of the permission; (b) specify an objective to take measures including the expansion of noise insulation schemes; and (c) identify a specified decibel level to be achieved by those schemes. Both versions of PA CH 8.1 included these core elements. For these reasons I agree that the errors were non-material. Moreover, there is no error on the face of the record. As discussed below, the Direction as adopted contained a summary of the modified PA CH 8.1.
45. There is a linked ground of appeal that focuses on the operative words in the Direction: "Delete the amended and additional text inserted under PA CH 8.1 as modified, consistent with the recommendation of the Chief Executive's report dated 15 January 2023". That report was provided prior to the amendment being made and reported on the original version of PA CH 8.1. As may be seen from the chronology at para. 18, above, the Chief Executive provided a later report on the submissions made in the consultation process
46. At para. 119 of his judgment the trial judge identified that the wording was suboptimal, in that it referred to the original Report of the Chief Executive of 15 January 2023, rather than the report on the modified version. He notes that the applicants read the words "consistent with the recommendation ... dated 15 January 2023" in a sense that would render the decision invalid rather than valid, and that the latter reading is preferable if reasonably available. He concluded that it is available here because, while technically incorrect, the Report of the Chief Executive of 15 January 2023 is basically consistent with the later report on the material amendments and so the operative part of the Direction can be read as meaning simply that the contested wording be deleted.
47. To test the strength of the appeal on this ground, it is helpful to consider the content of the report of the Chief Executive of 15 January 2023 in relevant part. There the Chief Executive noted there was a need to minimise the adverse impact of noise without placing unreasonable restrictions on development. She pointed out that ANCA rather than the planning authority was responsible for ensuring that noise generated by aircraft activity was assessed in accordance with the EU and Irish legislation and to ensure that the Balanced Approach was applied. She noted that Fingal was fully committed to the continual engagement with local communities, and she referred to policies DAP 8 and DAP 9 and objective DAO 23 in the draft development plan relating to community engagement. She referred to the fact that the Noise Insulation Scheme had originally been established in compliance with Condition 7 of the An Bord Pleanála decision to approve the development of the North Runway and included a requirement to review the dwellings eligible for insulation under the Scheme every two years. She noted it was beyond the scope, and not within the remit. of the draft development plan to include the text as set out in the proposed PA CH 8.1 which relates inter alia to the adequacy or otherwise of the insulation scheme. She therefore agreed with the recommendation of the OPR that the plan be made without material alteration to PA CH 8.1.
48. A second report was made by the Chief Executive following the submissions made on the draft Direction of 30 May 2023. In that report, she summarised the views of persons on PA CH 8.1, quoted the modified version and maintained her earlier recommendation that PA CH 8.1 be deleted from the development plan. However, she did not repeat the reasoning referred to above from her first Report.
49. In fact, the recommendations in her first report are as applicable to the modified version as they are to the original version of PA CH 8.1. Whichever version is considered, the points made by the Chief Executive about the division of competences, the Balanced Approach, the nature of the Noise Insulation Scheme, the requirement for community engagement and a necessity for appropriate mitigation proposals to be implemented where required are relevant. For that reason, the Minister's reference to the deletion of the modified text, consistent with the recommendation of the Chief Executive's Report, is in my view an entirely coherent Direction. Had the reader of the Direction been directed to the Chief Executive's second report of 30 May 2023, he/she would not have been provided with the reasoning explaining why she recommended deletion of the proposed wording.
50. Furthermore, any person looking at the impugned wording would understand that it referred to the Chief Executive's Report prior to the modification of PA CH 81 since that was not made until 15 February 2023 i.e. after the date of her report of 15 January 2023.
51. In the circumstances, I agree with the trial judge that the Direction can be read in a way which gives it validity, both because it refers on its face to the "amended and additional text inserted under PA CH 8.1", and because it is consistent with the recommendation of the Chief Executive of 15 January 2023 to delete that text, even allowing for the modification of PA CH 8.1 - which change did not alter its essential nature.
52. Finally, one of the grounds of appeal was that the process showed that the Minister had considered the wrong version of the draft development plan, and the High Court was incorrect to excuse the identified errors as harmless. In fact, the affidavit evidence put before the High Court on behalf of the Minister makes it clear that the amendments were put before the Minister, that he was aware of same, that he asked for a briefing in relation to the differences between the original version and the modified version and that there was no question of him being unaware of the new version or making a decision on the basis of the old version. There was no cross-examination on those affidavits in the High Court. There is therefore no factual basis for this ground of appeal, and none was identified at the hearing by counsel for the appellants.
53. In summary, the appellants have failed to establish any error on the part of the trial judge in relation to this ground of appeal.
GROUND 2: INCOMPATIBILITY OF PA CH 8.1 WITH NPO 65 AND ADDITIONAL GROUNDS UPON WHICH THE DECISION SHOULD BE UPHELD
54. The next ground of appeal is concerned with the substance of the Minister's decision. It is articulated as follows in the notice of appeal:
"The High Court erred in holding that the Minister had correctly concluded that the modified version of PA CH 8.1 of the Fingal County Development plan came within the exclusive jurisdiction of the Council as the aircraft noise competent authority to the exclusion of the elected members. The modified version of PA CH 8.1 is consistent with National Policy Objective 65 ("NPO 65") of the National Planning Framework ("NPF") and the 2018 Regulations, the Aircraft Noise Regulations 598/2014 and the Aircraft Noise (Dublin Airport) Regulation Act, 2019 ("the 2019 Act") and the Minister's conclusion to the contrary is wrong in law.
55. It is further asserted that the High Court erred in its conclusion at para. 151 of the judgment that the reason given to justify the Ministerial Direction was based on an evaluative judgment as to the application of NPO 65 of the NPF rather than an interpretation of law, i.e. the interpretation of NPO 65 and the 2019 Act. At the hearing, that ground was expanded somewhat by counsel for the appellants to the effect that the trial judge was obliged to, but did not, interpret NPO 65 and the Regulations and the Act as he was obliged to.
56. The appellants are challenging the High Court decision both on a substantive basis, and on the standard of review. As set out earlier, Fingal was directed to delete the text inserted under PA CH 8.1 as modified, inter alia because the inclusion of an objective in the development plan, which conflicts with and undermines identified statutory provisions and processes, including the NAP, was inconsistent with NPO 65 of the NPF. Although the Statement of Reasons in the Direction does not identify which Noise Action Plan is being discussed, when the Direction is read with the OPR's letter of 19 June 2023, it is obvious that the reference is to the Noise Action Plan for Dublin Airport 2019 - 2023. The Direction treats PA CH 8.1 as conflicting with, and undermining, the NAP and it is therefore necessary to consider both NPO 65 and the NAP in some detail.
National Policy Objective 65
57. NPO 65 is short. It is in the following terms:
"Promote the proactive management of noise where it is likely to have significant adverse impacts on health and quality of life and support the aims of the Environmental Noise Regulations through national planning guidance and noise action plans".
58. The commentary in the NPF relevant to NPO 65 observes that noise is unwanted sound but is an inevitable consequence of everyday life with difference tolerance levels varying from person to person. It notes that, as it is sought to promote more complex and efficient forms of development, it is important to more proactively manage noise and that in addressing these issues the NPF will support inter alia noise management and action planning which include measures to avoid, mitigate and minimise or promote the proactive management of noise where it is likely to have significant adverse impacts on health and quality of life through strategic noise mapping, noise action plans and suitable planning conditions.
Noise Action Plan
59. The NAP is dated December 2018 but inside the first page of the document the following notation may be found: Final Document 19 December 2019, which suggests that the NAP was not finalised till late 2019. The summary and conclusions section of the NAP identifies that the plan has been prepared as required by the Environmental Noise Regulations 2006 that give effect to Directive 2002/49/EC. Neither of these statutory measures are specific to airport noise: rather, they deal with all noise. In contrast, Regulation 598/2014 relates specifically to noise in the context of airports in the European Union.
60. The objective of the NAP is as follows:
"To avoid, prevent and reduce, where necessary, on a prioritised basis the effects due to long term exposure to aircraft noise, including health and quality of life through implementation of the International Civil Aviation Organisation's 'Balanced Approach' to the management of aircraft noise as set out under EU Regulation 598/2014". (section 1.1).
61. The introduction refers to the Noise Action Plan being designed to manage noise issues and effects associated with Dublin Airport in its existing two runway operations and, when necessary, to present measures to reduce the adverse effects of aviation noise where practical. There is a reference to the permission granted for the construction of the North Runway in 2007, which ultimately opened in 2022. It is pointed out that a revision to the Noise Action Plan and associated strategic noise maps will be required to account for the first full year of three runway operations at Dublin Airport. Para. 1.2 identifies the purpose of the NAP as follows: "[to] provide an overview of the Environmental Noise Regulations 2006, to review the results of the strategic noise maps for Dublin Airport, and to set out the approach to the strategic management and control of environmental noise over the next five years having regard to the existing noise management framework." Importantly, at para. 1.1, the policy objective is stated as: "to avoid, prevent and reduce, where necessary, on a prioritised basis the harmful effects, including annoyance, due to long term exposure to environmental noise from road traffic, rail and aircraft".
62. The NAP sets out the legal and policy framework, including Directive 2002/49 and Regulation 598/2014, as well as national and local measures. There is a summary of the International Civil Aviation Organisation ("ICAO") Balanced Approach which is stated to relate to the management of aircraft noise and is set out within the ICAO published manual "A Balanced Approach to Aircraft Noise Management" 2001 (discussed further below). Under the summary of Regulation 598/2014, it is noted that a fundamental requirement of the Balanced Approach as implemented within that Regulation is that, in determining the most appropriate combination of noise mitigation measures for a given airport, operating restrictions should only be introduced after consideration of the other three elements. There is a reference to the proposed legislation to give full effect to Regulation 598/2014 in national law and a reference to the Aircraft Noise (Dublin Airport) Bill, 2018. In fact, by the time the NAP was adopted, that Bill had been enacted (May 2019) and had largely been commenced (September 2019).
63. Paragraph 5.6 of the NAP refers to the existing Sound Insulation Scheme which consisted of a home sound insulation programme launched in 2017 by the DAA. It was indicated that it is broadly based on the voluntary residential noise insulation scheme required under the consent for the North Runway permission granted in 2007, the Home Sound Insulation Scheme. The NAP identifies various actions for different areas, and the relevant action for insulation is that the DAA must demonstrate it is promoting the scheme and report the number of households participating.
64. Paragraph 6.3 of the NAP points out that noise contours prepared by the DAA underpin the Home Sound Insulation Programme. At para. 7.1 the long-term noise strategy refers to the proposed policies and objectives set out in the development plan which aim to safeguard the current and future operation of Dublin Airport and its ongoing development. Reference is made to Objective DAO 9 of the development plan which considers Regulation 598/2014 and the Balanced Approach, as well as the involvement of communities in ensuring a collaborative approach to mitigating noise pollution. At para. 7.2, actions that should take place over the duration of the Plan are identified, including that land use policies must be kept under review in relation to aircraft noise through the review of existing land use planning frameworks, and that noise encroachment must be monitored to ensure that airport noise policy is appropriately informed through land use planning frameworks.
Findings by the trial judge
65. Under the heading "The Standard of Review" at para. 45 of his judgment, the trial judge observes that there is no special law for the standard of review for challenges to ministerial Directions under planning law and notes that general law applies, as Clarke J. pointed out in Tristor Ltd v Minister for the Environment, Heritage and Local Government (No. 1) [2010] IEHC 397. At para. 46, the trial judge refers to his findings on the standard of review in the judicial review context in Four Districts Woodland Habitat Group and Others v. An Bord Pleanála [2023] IEHC 335 and identifies three applicable standards of review, being non-deferential or de novo review, somewhat deferential review and highly deferential review. He points out that the first applies to review of issues of legality or procedural impropriety, whereas the second applies to mixed issues of fact or law, where a review in court must be somewhat deferential to the decision maker's evaluations of factual component but any such deference does not extend to issues of legal interpretation. The third approach, i.e. highly deferential review, concerns discretionary exercises of judgment or purely factual assessments by a decision maker.
66. The trial judge identifies Tristor and Cork County Council v Minister for Housing [2021] IEHC 683 as examples of non-deferential review on legality, specifically a correct understanding of the legal parameters of the jurisdiction of the OPR/Minister. He notes that McCarthy Meats v Minister for Housing [2020] IEHC 371 is an example of deferential review on issues of fact or discretionary judgment. He points out that whether an evaluation conclusion is correct is a matter for the Minister, subject to a reasonableness review. He notes that if the question is genuinely a purely legal issue the court must decide it, and putting the words "of opinion that" before the question does not render subjective that which is inherently objective. Where the question is at least partly evaluative, then the decision maker's assessment is subjective to that extent, within a zone of reasonableness.
67. Moving to the substantive findings, the trial judge looks first to the OPR approach and notes at para. 128 that the centre of gravity of the objection was the breach of the NPF (s. 31(1)(b)(a)) of the 2000 Act), this being the basis of the OPR's view that there was no overall strategy for proper planning and sustainable development. The trial judge notes at para. 136 that it is an aim of the NAP to effect aircraft noise management through the Balanced Approach as set out in Regulation 598/2014 and, it follows, in accordance with the requirements of the 2019 Act, which implements that Regulation.
68. At para. 137, he makes findings that have correctly been described by counsel for the appellants as the essence of his judgment. Para. 137 is in the following terms:
"Joining these provisions together, the requirement in NPF Objective NPO 65 to support the environmental noise regulations through noise action plans itself has the consequence of supporting the contents of the current Dublin Airport NAP, which sets out mechanisms for addressing airport noise particularly via Regulation 598/2014 and the mechanisms in transposing legislation, specifically the 2019 Act. Thus it is reasonably open to a decision-maker to conclude that inclusion in a development plan of an objective to take measures that are premised on the inadequacy of existing noise mitigation measures is not consistent with the division of functions envisaged by the 2019 Act, and thus is not consistent with the current noise action plan, and is therefore not consistent with the requirement to support the environmental noise directive through noise action plans as embodied in objectives of the NPF, and is therefore a valid basis for a finding of inconsistency with s. 10(1A) of the 2000 Act, and is therefore also a valid basis for a finding of a lack of an overall strategy for the proper planning and sustainable development of the area concerned, and thus ultimately a lawful basis for a notice by the OPR, a draft Direction and a final Direction."
69. At para. 141 he observed as follows:
"Thus, ultimately the conclusion that '[t]he inclusion of an objective in the Development Plan, which conflicts with and undermines these separate statutory provisions and processes, including the Noise Action Plan, is therefore inconsistent with National Policy Objective 65 of the National Planning Framework' is not based on an error of law. Insofar as it constitutes an evaluative judgment as to the application of NPO 65, that, on the facts, hasn't been shown to fall outside the zone of legitimate planning judgement by the Minister."
Analysis - Standard of Review
70. Logically, I should consider the standard of review appeal first. In short, the appellants challenge the conclusion of the trial judge that this attracted a "somewhat deferential review" on the basis that the Minister's decision involved mixed questions of fact and law. They argue the review ought to have been entirely de novo as the Direction ought not to have been treated as involving evaluative judgment.
71. I can find no fault with the approach of the trial judge in this respect. The Direction was made under s.31 of the 2000 Act, which gives the Minister power to make Directions regarding development plans where he is "of the opinion" that various criteria have been met. There is necessarily a subjective element to that decision. Naturally, that subjective element does not mean that the Minister is at large to make errors of law.
72. But when coming to his opinion in this case, the Minister was required to consider the factual matters covered by PA CH 8.1 and to consider the substance of the measures proposed, evaluated by reference to the Noise Action Plan and the legal instruments referred to above. PA CH 8.1 refers to the "inadequacy of the proposed noise insulation scheme to protect the health of those affected by airport noise" and proposed "an objective to take measures including the expansion of insulation schemes operated by DAA to include all areas exposed to 40dB Lnight or higher as produced by aircraft during night time". The measures referred to are clearly designed to address the level at which insulation is required to be provided to households. It requires the Minister to understand the nature of the measure, the body upon whom it is imposed, the existing legal and factual context including the planning application made by the DAA and registered by Fingal on 21 September 2021, the regulatory decision by ANCA of 20 June 2022 imposing an obligation on Fingal to include a specified condition in respect of a sound insulation scheme in any decision to grant permission, the grant of permission by Fingal (Decision Order PF/1692/22) incorporating the conditions specified by ANCA, section 8.5.7 in the draft development plan to the extent that it addresses airport noise, and related matters. Given the presence of these factual matters, and the express statutory reference to the opinion of the Minister, the Direction cannot be said to be purely a legal decision.
73. In the circumstances I am satisfied that the trial judge was correct in concluding that this was an evaluative judgment. I am also satisfied he was correct in making it quite clear that, insofar as issue before him involved questions of law, then the normal de novo standard would apply. Nor can I agree, contrary to what is contended by the appellants, that the trial judge did not carry out a de novo review of such questions of law. That review may be found largely in para. 137 of his judgment, discussed further below, although it is true that his reasoning is dense and presented in a summary fashion.
Regulation 598/2014
74. Before engaging with the substantive argument of the appellants, it is important to describe Regulation 598/2014 in some detail, given its centrality to the issues in this case. It mandates a process, called the Balanced Approach, that contains several different stages and is defined as:
"...the process developed by the International Civil Aviation Organization under which the range of available measures, namely the reduction of aircraft noise at source, land-use planning and management, noise abatement operational procedures and operating restrictions, is considered in a consistent way with a view to addressing the noise problem in the most cost-effective way on an airport-by-airport basis" (Art. 2(3)).
75. Noise related action is defined at Art. 2(5) as "any measure that affects the noise climate around airports, for which the principles of the Balanced Approach apply, including other non-operational actions that can affect the number of people exposed to aircraft noise". Given that PA CH 8.1 contains a noise mitigation objective rather than an operating restriction, Art. 5 is of particular relevance as it goes beyond operating restrictions, being entitled "General rules on aircraft noise management". Counsel for the appellants argued that Regulation 598/2014 is only concerned with operating restrictions, referring inter alia to its title: but I think this argument is defeated by the express terms of Art. 5.
76. In summary, Art. 5 sets out a framework for aircraft noise management, starting with an assessment of the noise at an individual airport, followed by a decision as to whether a Noise Problem exists. If it does, then the Balanced Approach must be adopted. To that end Member States must ensure the following: definition of the noise abatement objective for the airport, identification of the measures available to reduce the noise impact, evaluation of the likely cost effectiveness of the noise mitigation measures, consideration of safety, consultation with stakeholders, adoption and implementation of the noise mitigation measures and provision for dispute resolution. Article 5(3) provides that:
"Member States shall ensure that, when noise related action is taken, the following combination of available measures is considered, with a view to determining the most cost-effective measure or combination of measures:
(a) the foreseeable effect of a reduction of aircraft noise at source;
(b) land-use planning and management;
(c) noise abatement operational procedures;
(d) not applying operating restrictions as a first resort, but only after consideration of the other measures of the Balanced Approach."
77. Article 5(6) provides that measures taken in accordance with Regulation 598/2014 for a given airport shall not be more restrictive than is necessary to achieve the environmental noise abatement objectives set, and that operating restrictions shall be non-discriminatory and shall not be arbitrary.
78. Annex I, headed "Assessment of the Noise Situation at an Airport", identifies noise management information for land use planning and management as including mitigating measures in place such as building codes, noise insulation programmes or measures to reduce areas of sensitive land use.
The 2019 Act
79. The 2019 Act constitutes Ireland's implementation of Regulation 598/2014 but as agreed by all parties, it goes significantly beyond that and introduces various other measures in relation to the management of noise at Dublin Airport. As the title of the Act identifies, it makes additional provision for the regulation of aircraft noise at Dublin Airport and for those purposes amends the 2000 Act to cater for the situation where development at Dublin Airport may give rise to an aircraft noise problem. Fingal is designated as the competent authority for the purpose of the aircraft noise regulation. Section 3(2) provides that the functions of the competent authority shall be performed by the Chief Executive of Fingal. Section 3(3) provides that the functions of the competent authority shall be treated as an executive function within the meaning of s.149 of the Local Government Act 2001. Section 3(4) provides that the Chief Executive shall be independent in the performance of the functions of the competent authority.
80. Section 3(5) provides that the Chief Executive in performing the functions of the competent authority shall not be subject to the directions of any other person including the elected council acting by resolution under s.140 of the 2001 Act. As previously noted, s. 3(6) provides for the Chief Executive to have regard to any plan adopted by the elected council. Section 3(7) provides that the members of the elected council shall not influence or seek to influence the Chief Executive in the performance of a function of the competent authority or any employee. There are carve outs from this last provision. For example, s.3(7)(b) provides that s.3(7)(a) shall not be construed to prevent the members of the elected council from discussing the noise situation at the airport relevant to the performance of the functions of the elected council. Similarly, s.3(8) provides that nothing in the section shall operate to prevent a member of the elected council from making a submission or observation to the competent authority pursuant to Regulation 598/2014, the 2019 Act or the 2000 Act.
81. Section 4 provides for the exclusive competence of the competent authority in relation to operating restrictions, including to impose, revoke, revoke and replace, or amend the terms of an operating restriction.
82. The functions and/or powers of ANCA include the assessment of the noise situation at the airport (s.9(1)), the adoption of the Balanced Approach where a noise problem has been identified and the identification of a noise abatement objective (s.9(2)). All the obligations identified above under Art. 5 of Regulation 598/14 are placed on ANCA under s.9.
83. Separately, the 2019 Act amends the 2000 Act in respect of the grant of planning permission. Without exhaustively describing the extensive statutory provisions in this respect, in summary where the planning authority receives an application for development at the Airport, it must give a copy of the application to ANCA. The planning authority cannot go ahead with the decision on the application until it receives a notice from ANCA in respect of the application. ANCA is obliged to apply the Balanced Approach in relation to all its considerations of the planning application.
84. Section 34C relates specifically to a relevant permission, defined as a permission granted under s. 34 for development at the airport that includes an operating restriction. As noted earlier, the planning application by the DAA was made under s. 34C, since the application proposed to impose operating restrictions and/or vary existing operating restrictions. Section 34C(11) provides that ANCA shall make and publish, at the same time as its draft regulatory decision, a report outlining the planning authority's reasons for its decision. Provision is made for an extensive consultation process. After the consultation process has ended, s. 34C(14) provides that the competent authority shall make a regulatory decision consisting of the adoption by it of the draft regulatory decision, with or without amendments. There is an entitlement to appeal to An Bord Pleanála against the relevant regulatory decision.
85. Section 34C(16)(a) of the 2019 Act is of great significance. It provides that the planning authority shall incorporate ANCA's regulatory decision under s.14(a) in its decision and shall do so whether the planning authority decides to refuse or to grant permission for the development. If necessary, it must revoke or amend or replace the terms of a condition of the relevant permission to make the permission compatible with the regulatory decision of ANCA.
86. There is one other section of special relevance in the 2019 Act i.e. s.20, headed up "Noise Insulation Scheme". It is of considerable importance given the arguments of Fingal that PA CH 8.1 is not a noise mitigation measure or a noise related action. A scheme is defined as "a noise insulation put in place by the DAA before the relevant day" i.e. the day the section came into operation, being 1 September 2019, and "in force immediately before such day". Under s.20(2), after the relevant day, a scheme shall be deemed to be a noise mitigation measure introduced by the competent authority and the provisions of both the 2019 Act and the 2000 Act shall apply to the scheme. Relevant noise contours are defined as including areas of noise exposure determined by the competent authority on or after the relevant day, including such an area which replaces an area of noise exposure to which the scheme applied before the relevant day. Because there was a noise insulation scheme in being before the relevant day, which scheme the DAA sought to amend in its planning application, and because ANCA has in its regulatory decision identified the noise contours to which it applies after the relevant day, I am satisfied that the effect of s.20 is to establish that a noise insulation scheme specified by ANCA as a condition of the planning permission (as is the case here) must be treated as a noise mitigation measure.
87. That in turn means that the objective in PA CH 8.1 to take measures to expand noise insulation schemes operated by the DAA to achieve a specified decibel level at night must be treated as a noise mitigation measure. Moreover, the PA CH 8.1 specifically characterises as inadequate the "proposed noise insulation scheme". That must be treated as a scheme introduced by ANCA as it was introduced (by way of a planning condition) after the relevant day.
Legal Effect of PA CH 8.1
88. The first issue requiring to be determined is the character of PA CH 8.1, and its legal effect. At para. 6 of the High Court judgment, the trial judge states that dispute is about "fairly symbolic wording", and that the objective of a more demanding insulation scheme does not itself do anything and could not bring such a scheme into existence. At para. 150 he repeats that view, stating that the inclusion or exclusion of the disputed wording in the development plan "doesn't seem to change very much of anything". The appellants argued that the trial judge had made findings in this respect that had not been appealed, and that therefore his approach to the legal effect of PA CH 8.1 was binding. The respondents argued that in fact those comments were obiter, and the core of his ruling was to uphold the Minister's Direction. My own view is that this appeal necessarily requires me to interpret PA CH 8.1 and its legal effects - not as a ground of appeal but as part of the legal context necessary to permit a resolution of the appeal.
89. In my view PA CH 8.1 did two things: it identified the inadequacy (as perceived by the elected members) of a proposed noise insulation scheme that was required by ANCA as one of the conditions of the planning permission that permitted modification of the 2007 permission for the North Runway, currently under appeal to An Bord Pleanála; and it specified as an objective of the development plan the expansion of noise insulation schemes operated by the DAA to achieve a specified decibel level at night.
90. Contrary to what Fingal argued, in my view this cannot be treated as a general statement: rather it was a clearly defined objective. Equally, I cannot accept the submission that this was not a noise mitigation measure, since s.20 of the 2019 Act makes it clear that noise insulation schemes are to be defined as such. That section means the appellants' argument that it was not a noise mitigation measure because it did not affect the noise climate at the airport cannot succeed.
91. Development plans are important; their status as an environmental contract is well defined; they set an overall strategy for the proper planning and sustainable development of an area. If PA CH 8.1 had remained in the plan, some obvious difficulties would have presented themselves. First, ANCA would have been permitted to have regard to PA CH 8.1 by reason of s.3(6) of the 2019 Act. I do not place great significance on this insofar as the risk of inconsistent approaches and conflict is concerned, since ANCA could chose to disregard it. But the potential for inconsistency comes into sharp focus when considering the obligations of Fingal qua planning authority in future applications, and the obligations of An Bord Pleanála in determining the appeal against the planning permission of August 2022 that is currently before it. The stark nature of the clash is apparent by the fact that the objective in PA CH 8.1 identifies a decibel level of 40dB Lnight, whereas the conditions imposed by ANCA identify a decibel level of 55dB Lnight.
92. Under s.37(1)(b) of the 2019 Act, An Bord Pleanála would be required to have regard to the objective in the context of the appeal before it, including with respect to the operation of the material contravention provisions (ss. 34(6) and 37(2)). Thus had PA CH 8.1 remained in the development plan, An Bord Pleanála would have been faced with an "ANCA" condition in respect of a noise insulation scheme specifying night decibel levels at which the DAA was obliged to insulate but would also have been obliged to have regard to an objective identifying the "ANCA" condition as inadequate and specifying different decibel levels at which the DAA should insulate. This is even though the ANCA condition was reached after taking the steps required by Regulation 598/2014 in respect of the Balanced Approach, whereas no such exercise was carried out by the elected members. Given the specificity of PA CH 8.1, it is quite possible that An Bord Pleanála would decide it was necessary to treat that decision as a material contravention under s.37(2), depending on its decision on the appeal.
93. Equally, given s.15 of the 2000 Act, which requires a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan, and s.34(2), which obliges a planning authority to have regard to the development plan when deciding upon a planning application, Fingal would be faced with a very difficult decision indeed in considering any future planning applications in respect of development at Dublin Airport involving noise mitigation measures affecting insulation schemes. On the one hand, the amendments to the 2000 Act introduced by the 2019 Act require it to accept the decision of ANCA in relation to noise mitigation measures without amendment. On the other, its obligations under s.34(2) and s.15 would necessitate a consideration of PA CH 8.1.
94. One can see from this analysis the undesirable confusion and lack of legal certainty the inclusion of PA CH 8.1 would generate, including in the minds of the public, who would understandably be confused faced with two competing decibel levels at which insulation is to be provided.
95. Counsel for the appellants argued in reply that in such a situation, the Balanced Approach need only be applied by ANCA, and PA CH 8.1 really functioned as a way of allowing the elected representatives to be heard on what they considered to be a desirable level of insulation, having regard to its legitimate health concerns on the effects of noise. That can be done by the elected members making submissions to ANCA when it is carrying out its functions under the 2019 Act. But an objective in a development plan cannot be treated as a vehicle for expressing views, where the decision-making function lies elsewhere. The whole purpose of a development plan as an environmental contract would be undermined should that approach be adopted.
96. For all the reasons identified above, I consider that PA CH 8.1 would have had substantive legal consequences had it remained in the development plan.
Arguments of the appellants and of Fingal
97. I turn now to consider the arguments to the effect that the trial judge's conclusions were erroneous in law. As these conclusions involve an interpretation of law, equally this court does not accord any deference to the trial judge's conclusions but approaches the matter on a de novo basis.
98. The appellants argue that the 2019 Act does not preclude Fingal qua planning authority from adopting objectives relevant to noise from Dublin Airport via the development plan, and that s.3(6) of the 2019 Act specifically envisages that ANCA may have regard to any development plan adopted by the elected members, thus suggesting that the elected members continue to have a role in relation to the regulation of noise at Dublin Airport. Section 3(6) provides that the Chief Executive, in performing the functions of the competent authority, may, to the extent he or she is satisfied that it is appropriate to do so, have regard to any plan adopted by the elected council pursuant to the functions of the elected council. They argue that an express exclusion would be required to prevent the elected members from incorporating otherwise legitimate planning policies into the plan.
99. They refer to Art. 28A.1 of the Constitution which recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities. While acknowledging the limitations of Art. 28A, as identified by Hogan J. in Conway v. An Bord Pleanála [2024] IESC 34, the appellants argue that it supports the argument that if the Minister is to override the elected members, he must do so with accuracy and precision.
100. They point to an inconsistency in the Minister's approach, in that no objection is taken to any other part of section 8.5.7 of the development plan, which deals inter alia with airport noise and includes Objective DAO13 - Aircraft Operations and Noise in the following terms:
"Ensure that aircraft-related development and operation procedures proposed and existing at the Airport consider the requirements of the Aircraft Noise Regulations, the Noise Abatement Objective (NAO) for Dublin Airport, the Noise Action Plan, Health Issues and all measures necessary to mitigate against the potential negative impact of noise from aircraft operations (such as engine testing, taxiing, taking off and landing), on existing established residential communities, while not placing unreasonable, but allowing reasonable restrictions on airport development to prevent detrimental effects on local communities, taking into account the EU Regulation 598/2014 (or any future superseding EU regulation applicable) having regard to the 'Balanced Approach' and the involvement of communities in ensuring a collaborative approach to mitigating against noise pollution."
101. The appellants further argue that NAPs are not the exclusive means of meeting the objectives of NPO 65, and that PA CH 8.1 did not conflict with the NAP which included an existing noise insulation scheme, and that DAO 15 in the plan called for review of the noise zones on an ongoing basis.
102. In respect of ANCA they contend that, even if PA CH 8.1 gave rise to the possibility of encroaching upon ANCA's exclusive competence, which is not accepted, the 2000 Act makes express provision for ANCA to act in areas where it has exclusive competence i.e. in respect of operating restrictions. PA CH 8.1 is not an operating restriction. In respect of the application of the Balanced Approach, they note that Objective DAO 13 mandates use of the Balanced Approach and there is nothing in PA CH 8.1 seeking to disapply this objective.
103. Fingal argues that PA CH 8.1 is not a noise mitigation measure (or a noise action measure) as it does not have any legal impact on any current or proposed noise mitigation measures and refers to paragraphs 6 and 150 of the High Court judgment in this respect. As such it says there is no basis for the complaint that it was introduced without adopting the Balanced Approach. It states that it simply highlights the preference of the elected members for existing schemes to be revised or improved. It is argued that it protects the human health of Fingal residents, not the regulation of the airport. It argues that it is inconsistent for the Minister to object to PA CH 8.1 but not to Objective DAO13 - Aircraft Operations and Noise, and to the noise zoning contours at Table 8.1. This identifies four different aircraft noise zones by referring to the applicable decibel levels within those zones and identifies a planning objective for each zone. For example, the objective for Zone A is as follows: "To resist new provision for residential development and other noise sensitive uses. All noise sensitive developments within this zone may potentially be exposed to high levels of aircraft noise, which may be harmful to health or otherwise unacceptable. The provision of new noise sensitive developments will be resisted".
Analysis - Incompatibility of PA CH 8.1 with NPO 65
104. As identified at para. 137 of the judgment under appeal, I agree that the requirement in NPO 65 to support the environmental noise regulations through noise action plans has the consequence of supporting the contents of the NAP for Dublin Airport. The core objective of the NAP is to address airport noise using the Balanced Approach as identified in Regulation 598/2014. The trial judge appropriately referred to the legislation to give effect to that Regulation, i.e. the 2019 Act. But I should add that, even if he was incorrect in referring to the 2019 Act since it was not explicitly mentioned in the NAP, it does not affect his conclusions since Regulation 598/2014 was already part of Irish law, having entered into force on 13 June 2016 and being directly applicable in its entirety from that date.
105. The trial judge concluded that it was reasonably open to a decision maker to conclude that the inclusion of an objective to take measures premised on the inadequacy of existing noise mitigation measures is not consistent with the division of functions envisaged by the 2019 Act and thus inconsistent with the NAP. I agree that the objective in PA CH 8.1 was inconsistent with the NAP and undermined its core objective, given that the NAP required the application of the Balanced Approach and no such approach was taken by the elected members. In those circumstances, there was no legal error in the trial judge deciding that the Minister acted lawfully in concluding that the insertion of PA CH 8.1 was not in compliance with the NAP and therefore constituted a failure to support NPO 65.
106. The remainder of para. 137 of the High Court judgment identifies why a failure to support NPO 65 justified the Minister in making his Direction. The trial judge identifies that a failure to support the NAP constitutes a failure to comply with the objectives of the NPF and is therefore a valid basis for a finding of inconsistency with s. 10(1A) of the 2000 Act. Section 10(1) thereof provides that a development plan shall set out an overall strategy for the proper planning and sustainable development of the area and shall consist of a written statement and a plan or plans indicating the development objectives for the area in question. Section 10(1A) requires the written statement to include a core strategy which shows that the development objectives in the development plan are consistent as far as practicable with the objectives set out in the NPF.
107. Where the elected members had adopted an objective in the development plan i.e. PA CH 8.1, that was not consistent with NPO 65 in the NPF, the Minister was entitled to conclude that the objectives were not consistent with the latter, and the trial judge was correct in so finding. Additionally, the trial judge held that there was a valid basis for the Minister to find a lack of an overall strategy for the proper planning and sustainable development of the area concerned. Section 31(1) of the 2000 Act provides that the Minister may, for stated reasons, direct a planning authority to take such specified measures as he or she may require in relation to that plan including, inter alia, in the case of a plan, where it fails to set out an overall strategy for the proper planning of sustainable development of the area, or is not consistent with the national and regional development objectives set out in the national planning framework.
108. Given the trial judge's previous findings in respect of NPO 65 identified above that I have upheld, his conclusion in this respect is clearly consistent with the terms of s.31 of the 2019 Act. In fact, there is no ground of appeal challenging the trial judge's conclusions referable to the s.10(1) and s.31 grounds for the Minister's Direction.
109. In the circumstances, I reject both the argument that the trial judge erred in upholding the Minister's Direction, and that he failed to interpret NPO 65 and the Regulations and the Act. It is fair to say that he interpreted them in a summary fashion: but the key elements of the analysis were present.
Analysis - Compatibility of PA CH 8.1 with 2019 Act and 2000 Act
110. I turn now to certain additional grounds upon which the DAA say the decision should be affirmed, namely the compatibility of PA CH 8.1 with certain provisions of the 2019 Act. The DAA identifies two additional grounds upon which the decision should be affirmed in this respect as follows:
"(2) In particular that part of the development plan which comprises or relates to PA CH 8.1 is a noise mitigation measure within the meaning of Regulation 598/2014, the 2019 Act and/or section 34A of the 2000 Act, the regulation of which is the subject of a specific regime established by the 2019 Act including section 9 thereof and sections 34A to 34C of the 2000 Act as inserted by the 2019 Act."
"(4) In making the Direction the Minister correctly concluded that PA CH 8.1 was a noise mitigation measure within the meaning of the 2019 Act and Regulation 598/2014 in respect of which the Balanced Approach required to be applied but contrary to EU and national law was not applied prior to its adoption."
111. Those additional grounds are related to additional reasons given by the Minister for the Direction, previously identified earlier in this judgment, which address inter alia the impact of the 2019 Act on the ability of the elected members to adopt objectives in relation to noise mitigation matters. The trial judge did not go on to consider the additional reasons that referred to the provisions of the 2019 Act as he took the view that the reasoning of the Minister in respect of the incompatibility of PA CH 8.1 with NPO 65 issue was sufficient to resolve the case.
112. However, I have decided that it is important to adjudicate on those additional grounds given the importance of the 2019 Act in the intricate statutory framework in respect of noise management at Dublin Airport. To adjudicate on this appeal without considering the 2019 Act would be artificial and would leave certain arguments of the appellants and Fingal unaddressed. Given the importance of this issue to the elected members (and their constituents), it is important that there be as full an engagement with their arguments as possible. I should add that the matters covered by the additional grounds were fully ventilated in the High Court, so the parties had an opportunity to be heard at that stage. Equally, at the appeal hearing before this court, parties made arguments both in writing and orally as to the 2019 Act and its impact upon the scope of competence of the elected members.
113. In my view, the net question that requires resolution is whether the Minister was correct in concluding that PA CH 8.1 should be deleted because its inclusion in the development plan was not in compliance with the 2000 Act, the 2019 Act and what he described as "the exclusive jurisdiction conferred on ANCA and the Chief Executive under the 2019 Act in respect of the subject matter of the objective". I think it important to state that the findings made herein are arrived at in a specific factual context, i.e. the grant of a planning permission containing conditions in respect of noise insulation schemes imposed by ANCA in the context of a noise problem at Dublin Airport. The judgment does not go beyond that.
114. I should observe that, in adopting PA CH 8.1, the elected representatives were obviously motivated by seeking to achieve health benefits, which are a legitimate planning consideration. This may be seen inter alia from the summary by the Chief Executive of the submissions received in response to the draft Ministerial Direction public consultation, which focus upon the negative health impacts associated with excessive aircraft noise. This judgment does not reflect a view that such health concerns are not significant, but is rather about the narrower question as to who has the power to make decisions on noise insulation schemes and how those decisions ought to be made.
115. What is entirely clear from the framework of the 2019 Act is that, once an application for planning is made that involves a noise mitigation measure or an operating restriction at Dublin Airport, the only body that can determine that aspect of the application is ANCA (ss.34A to 34C of 2000 Act, as amended by the 2019 Act) and that the planning authority - Fingal - must incorporate ANCA's regulatory decision in that regard into the planning decision (s.34C(16)(a)). The process to be followed by ANCA in that regard is elaborate and set out with great specificity in the 2019 Act. It reflects the Balanced Approach required by Regulation 598/2014. A consultation process is required, whereby ANCA is required to publish a draft regulatory decision and seek submissions from the public. Section 34C(11) requires that a report be published summarising the reasons for the draft regulatory decision.
116. The list of matters that may be included in that report give an idea of the detail of the process that is required to be undergone: a summary of the data examined, the noise abatement objective, measures considered to address any noise problem, the evaluation of the cost-effectiveness of the various measures considered; the application of the Balanced Approach; the identification of additional or alternative measures; particulars of any proposed noise mitigation measures and operating restrictions; reasons for the proposed introduction of same and the relevant technical information in relation to the proposed measures.
117. The regulatory decision report in this case ran to 216 pages with at least 220 additional pages of appendices. Of course, not all of this was concerned with noise insulation; but the issue of noise insulation, and the scheme proposed by the DAA, formed a significant part of the report.
118. Equally, it is quite clear from s.20 of the 2019 Act that, as discussed above, noise insulation schemes put in place by the DAA are deemed to be (a) noise mitigation measures and (b) introduced by ANCA.
119. In those circumstances, I consider the statutory scheme makes it clear that decisions on a planning application at Dublin Airport that involve noise insulation schemes are to be made by ANCA, and by ANCA only. No other body has the competence to decide them, save that, on appeal, An Bord Pleanála may accept or reject the regulatory decision the subject of an appeal under s.37R(3)(c) of the 2000 Act. The normal decision-making function of the planning authority on a planning application is entirely removed. It would be strange indeed if the statutory preclusion of the planning authority deciding on noise mitigation measures at Dublin Airport co-existed with an entitlement on the part of the elected members to include in the Development plan objectives on noise mitigation measures.
120. Despite this statutory scheme, PA CH 8.1 "recognises the inadequacy" of the ANCA approved noise insulation scheme and specified as an objective of the development plan the expansion of noise insulation schemes operated by the DAA to include all areas exposed to 40dB Lnight or higher as produced by aircraft during nighttime. By adopting PA CH 8.1, the elected members entered an arena that was already wholly occupied by ANCA. PA CH 8.1 effectively sought to alter the decision of ANCA in relation to the insulation scheme by the backdoor, despite the fact that ANCA has exclusive decision-making power in respect of noise insulation schemes proposed as part of a planning application. In my view, the development plan cannot be used to circumvent the scheme established by the 2019 Act.
121. Accordingly, I conclude that the Minister did not err in law when he gave as a reason for the deletion of PA CH 8.1 that the inclusion of this particular objective is not in compliance with the provisions of the 2000 and the 2019 Acts and the exclusive jurisdiction that they confer on ANCA in respect of the subject matter of the objective, and where he noted that the inclusion of an objective in respect of a noise insulation scheme in the development plan is a noise mitigation measure and noise related action without having complied with the provisions of the Balanced Approach or the other requirements of Regulation 598/2014 or the 2019 Act.
122. During the appeal hearing, counsel for the appellants relied upon s. 4 of the 2019 Act, which explicitly confers exclusive competence on ANCA in respect of operating restrictions. Because of the absence of a similar provision in respect of noise mitigation measures, it was argued that competence remains with the elected representatives insofar as noise mitigation measures are concerned. That argument cannot survive the above analysis of the 2019 Act. Sections 34A -34C thereof effectively give exclusive competence to ANCA in relation to conditions in planning applications that involve noise mitigation measures or operating restrictions, although it is not described in those terms. By excluding the planning authority from that area and obliging the planning authority to incorporate the ANCA decision in the ultimate planning decision, the legislature has made it clear that only one body may decide upon noise mitigation measures in the planning context.
123. This approach sits comfortably with the requirements of Regulation 598/2014, which imposes onerous regulatory obligations in respect of the Balanced Approach and other linked obligations under Art. 5(2) thereof when a noise related action is taken. Those obligations are reflected in the 2019 Act. Here, not surprisingly, the elected members made no claim that they had followed the Balanced Approach, including the cost benefit and proportionality analyses it required, when they adopted PA CH 8.1. That type of exercise is not one that could be carried out by elected members when adopting a development plan. But it is required by Regulation 598/2014. Its existence demonstrates why a specialist body has been established by the legislature under the 2019 Act to consider noise mitigation measures when they are sought under a planning application.
Relevance of Section 8.5.7 of the development plan
124. Significant weight was placed by the appellants and by Fingal on an asserted lack of consistency on the part of the Minister in objecting to PA CH 8.1, but not to other measures in the development plan relating to airport noise at section 8.5.7. Particular focus was placed on Objective DAO 13 and the noise zoning contours set out at Table 8.1. In my view that argument suffers from a failure to compare like with like. Competence clearly remains with the elected members in respect of land use planning and management. The Minister's written submissions explicitly concede that Fingal remains responsible for the majority of land use planning functions relevant to noise at Dublin Airport, other than functions relating to noise mitigation measures and operating restrictions within the meaning of the 2019 Act. Other noise mitigation measures, such as imposing conditions on new residential development, do not fall within the scope of the 2019 Act. Equally, the planning authority retains responsibility for zoning in the vicinity of the airport, including the identification of noise zones. Such rules operate to control the type and nature of development which can be carried out by third parties.
125. This is entirely compatible with Regulation 598/2014, which refers to consideration of land use planning and management as part of the Balanced Approach. As per paragraph 1.4.2(a) of Annex I, that includes "Planning instruments in place, such as comprehensive planning or noise zoning". The noise zoning contours are entirely in line with this approach, as is the general approach prescribed in Objective DAO 13. There is no clash with the 2019 Act.
126. On the other hand, PA CH 8.1 is an entirely different creature. It does not address future development or zoning or general obligations on the DAA. It must be characterised as a noise mitigation measure given the terms of s.20 of the 2019 Act. It is highly specific in its terms and addresses the adequacy of a measure introduced by ANCA as a condition of the planning permission. The 2000 Act, as amended by the 2019 Act, requires the planning authority - Fingal - to accept that condition without any modifications in the ultimate grant of permission if permission is granted, and to disapply other conditions in the planning permission that might conflict with it. In other words, the legislation ensures that ANCA is the only body that decides on noise mitigation measures. Yet on the appellants' interpretation of the 2019 Act, the elected representatives are entitled to adopt an objective that treats the ANCA condition as inadequate and specifies an alternative decibel level at which the DAA is required to insulate homes. It is impossible to see that as in any way comparable to the other parts of the development plan that address airport noise. PA CH 8.1 clearly encroaches on ANCA's zone of competence under the 2019 Act, whereas the remaining parts of section 8.5.7 dealing with airport noise are unaffected by the terms of the 2019 Act. In the circumstances, I see no inconsistency in the Minister treating PA CH 8.1 differently to the remainder of section 8.5.7.
127. In conclusion, the appellants have failed to establish any error on the part of the trial judge in relation to the finding of incompatibility with NPO 65. In addition, the following additional ground asserted by the DAA has been made out: this is a noise mitigation measure that was a condition of a planning permission under s.34C of the 2000 Act and its inclusion in the permission was the subject of a specific regime under the 2019 Act and the 2000 Act. The elected members are precluded from including a specific objective in the development plan that deals with precisely the same subject matter i.e. the adequacy of the ANCA measure and the requisite decibel level at which insulation is required.
GROUND 3: OBLIGATION TO GIVE REASONS
128. The last ground of appeal is one that frequently arises in judicial review proceedings: a contention that the decision maker failed to give adequate reasons for the decision. That argument is made in the context of the elaborate statutory architecture in place when the OPR makes a recommendation, and the Minister makes a Direction, under s.31 of the 2000 Act. That structure requires an elaborate stepped approach. The chronology above demonstrates the volume of documents generated under the statutory scheme: submissions from the OPR, reports, notices, draft Direction, submissions from the public, report on submissions and Direction. In this case, the documentation included the first OPR submission of 22 December 2022 on the proposed material alteration which identified its concern, the Chief Executive's report of 15 January 2023 on the proposed material alterations where she identified her concerns, the OPR notice to the Minister of 22 March 2023 where the OPR expressed its concerns to the Minister about the modified version of PA CH 8.1, the Minister's notice of intention to issue a Direction of 4 April 2023, the submissions made on the draft Direction, the Chief Executive's reports on submissions of 30 May 2023, the OPR notice to the Minister of 19 June 2023 recommending that the amendment be removed and finally the Direction of 28 July 2023. This was a process where the concerns of the Minister and OPR were ventilated early and often.
129. The submissions of the appellants were made relatively late in this process, and their complaint is that no reasons were given for the rejection of their submissions. Although they characterise their complaint as a failure to give reasons, in fact their complaint is not about a lack of reasons for the Direction, but rather about a failure by the Minister to respond explicitly to the submissions they made. Relying upon Balz, Sherwin v An Bord Pleanála [2024] IESC 13 and, in oral submissions, NECI [2021] IESC 36, the appellants argue that where targeted submissions were submitted to the Minister, the Minister must address those submissions and identify a precise basis as to why he has not been persuaded by those submissions.
130. In the notice of appeal, the appellants argue that the High Court erred both in concluding that the Minister provided adequate reasons in respect of the issues raised in the submissions made during the public participation process and in finding that the appellants were only entitled to reasons in relation to matters the Minister deemed to be material. The appellants argue that none of the points raised by them were addressed by the Minister or in the process. In particular they say the Minister did not engage with the issues in relation to the erroneous quotation of the development plan, the truncated time for submissions, the application of Directive 2001/42/EC of the European Parliament and the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ L 197/30, hereafter 'the SEA Directive'), the consistency between the development plan as adopted and the World Health Organisation (hereafter 'the WHO') guidelines, the fact that the 2019 Act give exclusive competence to ANCA in respect of operational restrictions only, and the fact that the development plan sought to address the situation where very large numbers of people are exposed to very severe health implications as a result of disturbance from aircraft noise at night.
131. It is further argued that the High Court erred in finding that reasons in respect of what the trial judge described as "legalistic objections" did not have to be provided and in concluding there was no obligation to provide reasons in respect of the SEA Directive argument where substantive grounds in relation to that Directive were not pursued.
Findings of the trial judge
132. The trial judge observed at para. 146 of the judgment under appeal as follows:
"The spurious logic is that even though there was no underlying illegality, if an applicant puts forward a baseless argument asserting such illegality, and the decision-maker doesn't provide a fully reasoned rejection of the meritless complaint, then an otherwise valid and lawful decision becomes invalid and lawful. Talk about a jurisprudential Indian rope trick".
133. He drew support from the following dicta of Mulcahy J. at para. 107 of his judgment in Ironborn v. Dun Laoghaire County Council [2023] IEHC 477:
"I would, however, observe that if a decision-maker correctly interprets and applies the law and thus, necessarily, rejects an argument based on an incorrect interpretation of the law, it is difficult to see how there could be an onus on that decision-maker for providing reasons for so doing, still less for quashing its decision by reason of a failure so to do."
134. At para. 148 of the judgment under appeal the trial judge observed that, in relation to the SEA Directive point, the appellants had dropped their ground in respect of the obligation to carry out an SEA and it would therefore be "bordering on the absurd to quash a decision that is valid in that respect on the grounds that, in response to a legalistic objection, the Minister didn't explain at the time why it was so valid."
135. At para. 149 the trial judge held that, for the avoidance of doubt, his observation did not mean that an applicant whose own legal rights are affected by a proposed decision isn't entitled to "main reasons on main issues". However, he said there was a distinction between an issue causing individual prejudice or otherwise requiring evaluation by the decision-maker, and a legalistic complaint such as an objection in principle to the procedure. He rejected the challenge mounted based on a lack of reasons or response to arguments raised.
Analysis
136. The duty to give reasons, and the extent of those reasons, is a question that has long preoccupied the courts in this jurisdiction. It is a particularly difficult issue in the context of planning, where a decision-making body may be faced with a very large number of submissions and material, given the entitlement of the public to participate in the planning process. Here, for example, the Minister received 168 submissions on the draft Direction.
137. There is a conceptual distinction between a duty to give reasons for a decision and a duty to respond to submissions. The law on the duty to give reasons is well established at this stage: by contrast, the law on the obligation to respond to submissions is relatively underdeveloped. A decision maker could comply with its legal obligation to give reasons for its decision without explaining why it has not accepted a submission. If the submission is not relevant to the reasons why the decision has been made, then as a matter of logic, a response to the submission does not form part of the reasons and is therefore not covered by the obligation to give reasons. Accordingly, in my view, the appellants cannot rely upon the duty to give reasons as a basis for imposing an obligation on the Minister to engage with every submission made by them. If such an obligation is to be contended for, a different legal basis must be identified: and the appellants have not done so.
138. The judgment in Balz identified a distinct obligation on a decision maker making decisions affecting the public to address "relevant submissions" and explain why they are not accepted. The question that is raised by this appeal is the extent of that obligation. The appellants characterise it as being an obligation on the decision maker to respond to every submission made. Counsel argues that an important part of the development consent process is that people who did not get the result they wanted need to know that their submissions were addressed. It is said that there is no point in having a submission process if those submissions are not addressed. On the other hand, the respondents stressed the necessary limits of the obligation, referring to the observations of Humphreys J. at para. 58 of his judgment in O'Donnell v. An Bord Pleanala [2023] IEHC 381 where he observed: -
"Such a more stringent obligation would also have a series of unintended consequences. It would significantly delay decision-making because each point would have to be examined in detail for the purposes of preparing responses. It would also create a perverse incentive whereby participants in a process could flood the decision-maker with a huge volume of points, safe in the knowledge that if one were accidentally omitted from the reasons, then the whole decision could collapse. That would raise an untenable burden on the decision-maker because there is no limit to the detail and volume of the points that could be made generally or that could be included in an expert's report in particular."
139. I agree that it is important that the decision-making process cannot be paralyzed by an overzealous and unrealistic standard imposed by the courts. If the appellants are right, the Minister was obliged to include in his Direction a response to every submission made in the consultation. That is conceptually different from, and goes far beyond, the duty to give reasons.
140. Returning to Balz, the Supreme Court held that the inspector and the Board ought to have specifically responded to the appellant's submission that guidelines from 2006 in relation to the measurement of noise arising from windfarms and turbines were out of date and ought not to be followed. The inspector had held that this was not a relevant planning and development consideration and therefore did not consider the substantive observation in respect of the guidelines being out of date. The Supreme Court held that the decision maker ought to have considered the merits of that submission rather than excluding any consideration of it in limine. In so doing, O'Donnell J. (as he then was) focused on the fact that where guidelines are in existence, it is open to a party to put material before the decision maker suggesting that s/he depart from those guidelines, and that a decision maker must engage with such a submission. The argument that the guidelines were out of date could thus not be excluded as irrelevant, particularly when that contention had substantial independent support from official sources, as was the case there.
141. The critical word at para. 57 of the judgment in Balz is "relevant". In that case, the question of the reliance that ought to have been placed on the Wind Energy Development Guidelines 2006 was obviously highly relevant in the context of a challenge to a grant of permission for six (subsequently eleven) wind turbines. In those circumstances, it was unsurprising that O'Donnell J. considered that An Bord Pleanála ought not to have concluded that the status of the guidelines was not a relevant planning consideration, and that the submission should not have been rejected based on lack of relevance. Indeed. at para. 53 of his judgment, O'Donnell J. held that the inspector had excluded relevant considerations from his decision-making. At para. 40 he observed that it was a frustrating case from the court's view as it was plain that the proceedings did not appear to raise any issue of law of general importance but rather were a dispute about how facts should be characterised.
142. When these aspects of Balz are considered, it is difficult to accept the appellants' submissions that the decision in Balz imposes an entirely new obligation on a decision maker to respond to all submissions made to him or her (whether under the banner of a duty to give reasons or on some other basis), irrespective of their substance or content. Rather, it seems to me that what the case identifies, taking into account the important comments made at para. 157 by O'Donnell J. about the trust that members of the public are entitled to have in decision-making institutions, is that decision makers are under an obligation to respond to submissions as are relevant to the reasons for the decision. This flows from the basic obligation to give reasons: adequate reasons must encompass an engagement with relevant submissions.
143. That is no small obligation since it obliges the decision maker to factor into their decision the relevant points that have been made to them. As pointed out by the trial judge, in a planning context many hundreds of submissions may be made, and it may be necessary to respond to a substantial volume of points when they are relevant to the decision to be taken. Nonetheless, it is a lesser obligation than to require decision makers to respond to each and every submission since such an obligation does not derive from the duty to give reasons, and thus requires a different legal basis. No such legal basis was advanced by the appellants.
144. Confining the obligation of the decision maker to respond only to submissions relevant to the reasons for the decision finds echoes in other administrative law contexts, namely the obligation on a decision maker to take into account relevant considerations and to exclude irrelevant considerations.
145. The other Supreme Court decisions referred to by the appellants - NECI and Sherwin - are consistent with this interpretation of Balz. NECI simply endorses the reasoning in Balz in respect of the provision of reasons. In Sherwin, the Supreme Court was considering an appeal where planning permission for 1,600 apartments had been quashed by the High Court, inter alia, because of a failure to give reasons. The conservation officer (hereafter "the C.O.") of Dublin City Council had made a submission to An Bord Pleanála indicating that losing half of the trees on the site would be indefensible, given the fact that the verdant landscape was an intrinsic part of the setting and character of the protected structure. The Supreme Court upheld the High Court decision that the Board's decision was defective and failed to address the "overwhelming concerns" expressed by the C.O. as to the inevitable destruction of half the mature trees on the site should permission be granted. Woulfe J. observed that the strength of the objections by the Department, and more especially by the C.O. in her report, required detailed consideration by the Inspector and, ultimately, by An Bord Pleanála in its decision. Clearly, in that case, the objection was so relevant to the reasons for the decision that it required to be explicitly addressed in the decision to grant permission.
146. Here, the decision is governed by statute, namely s. 31(1) of the 2000 Act, which gives the Minister the power to, "for stated reasons, direct a planning authority to take such specified measures as he or she may require in relation to the draft development plan". Section 31 requires the Minister to draw up a draft Direction prior to exercising the power that the section confers. The local authority must give notice of that draft Direction in a newspaper, which notice must identify the reasons for the draft Direction and the entitlement to make submissions on same. After submissions have been received, s.31(8) requires the chief executive of the planning authority to prepare a report on any submissions or observations, which shall be furnished inter alia to the elected members, the OPR and the Minister. Under s.31(9) the report shall, inter alia summarise the views of any person who made such submissions or observations, the views of the elected members, and as required by s.31(9)(d), "make recommendations in relation to the best manner in which to give effect to the draft direction". The Chief Executive of Fingal published/submitted that report on 30 May 2023.
147. That statutory framework is significant in the context of the argument raised by the appellants. In my view, the obligation on the Chief Executive to publish a report summarising the submissions received meets the concern identified in Balz, i.e. to ensure that there is trust on the part of the public that its voice will be listened to in the decision-making process. Here, the appellants' submissions were summarised in the Chief Executive's report, meeting the concern identified in Balz that the public trust their voice will be listened to in the decision-making process. Moreover, s.31(1) of the 2000 Act makes it clear that obligation on the Minister is to give "stated reasons" for his/her Direction, not to go through a refutation of each and every submission made on the draft Direction. That wording is vitally important in considering the extent of the Minister's obligation in this context.
148. In fact, the approach of the trial judge at para. 149 of the judgment under appeal - that an applicant is entitled to main reasons on main issues where his/her legal rights are affected by a proposed decision - captures the obligation described above if one treats the reference to "main issues" as synonymous with "relevant issues". It is a matter for the decision maker to decide whether submissions raise relevant issues, and therefore require to be addressed in the ultimate decision. A decision maker's characterisation of a submission as irrelevant (whether express or implied) to the decision to be made remains open to challenge by way of judicial review in the normal way if it is erroneous.
149. If a person making a submission does not agree with a decision maker's treatment of a submission, they are entitled to challenge that treatment by way of judicial review.
150. Turning now to the specific complaints of the appellants as outlined above, a detailed argument was made in respect of the 2019 Act and how it did not preclude PA CH 8.1. I am satisfied that the reasons given by the Minister addressed the question as to the relative scope of competence of the planning authority and ANCA under the 2019 Act, thereby addressing the issue raised by the appellants in that respect.
151. In respect of the mistakes issue, i.e. that the Minister ought to have indicated in his Direction why he was entitled to proceed despite the draft Direction and public notice summarising the original version of PA CH 8.1 as opposed to the modified version, I am satisfied that the Minister was entitled to treat that submission as one that he did not require to address as part of his reasoning process. The point was brought to the Minister's attention as it is summarised in the report of the Chief Executive; but he clearly did not accept it since he proceeded to make the Direction. The appellants were therefore aware of his position by necessary implication. It might have been preferable to identify, even in brief, why the argument was without merit and did not deprive him of jurisdiction to make the Direction; but it is not a ground that renders the decision unlawful.
152. Separately, the first named appellant had argued in its submissions that a period of two weeks (which, in their submission, amounted to ten working days, and eight clear working days) was too short a period within which to make submissions. This is in fact, a fair procedures argument rather than a reasons one: the appellants say they had inadequate time to formulate those submissions and therefore the process was not fair. But even if it is treated as a reasons argument, it cannot be considered sufficiently relevant to the substance of the decision to require an explicit response from the Minister as part of the reasoning behind his Direction.
153. The appellants argue that the Minister ought to have addressed the issues raised in the submissions on the health implications of noise, the relationship between the development plan and the WHO guidelines and the HSE submission, in the statement of reasons for his Direction. But the Direction makes it clear why the Minister considered that PA CH 8.1 should be deleted, having regard to the NAP, NPO 65, the 2019 Act, Regulation 589/2014 and the Balanced Approach, as well as from the myriad of documents that preceded the decision, notably the various opinions and recommendations of the OPR and the report of the Chief Executive of 15 January 2023. The essence of the Minister's Direction was that no jurisdiction or entitlement existed on the part of the elected members to adopt PA CH 8.1 and that it was incompatible with the NPF having regard to NPO 65. Therefore, any views he might have had on the submissions made by an NGO i.e. the second named appellant, on WHO standards, the HSE submission or the effect of noise on health could not reasonably be considered to be relevant to the reasons he gave for the Direction i.e. that these were matters appropriately left to ANCA and were to be addressed in the context of the Balanced Approach. In other words, given that the proposed amendment to the development plan did not adopt the Balanced Approach, and was adopted by the elected members who lacked competence in the area, submissions going to the merits of the decision could never be relevant and therefore did not require a response.
154. Moreover, as set out above, the consultation process gave an opportunity to the appellants to make submissions on this point to the appropriate decision maker. In fact, the HSE made submissions to ANCA on the health effects of noise as part of the consultation process on the condition of the planning permission. In those circumstances, the Minister was not obliged to respond to those submissions.
155. A submission was also made was that a screening exercise under the SEA ought to have taken place. Although this originally formed part of the appellants' case, they ultimately did not pursue this point in the High Court. The Minister concluded no SEA screening was required in respect of his Direction (although the planning authority had carried one out in the process that led to grant permission for the application to amend the 2007 permission) and the Minister clearly did not consider the question of screening to be relevant to his decision. Given that the appellants did not maintain their substantive argument on screening, they cannot rely upon this point in the appeal.
156. In this context, I should address the complaint of the appellants that the trial judge erred in his finding that there is no obligation to give reasons where a baseless argument asserting illegality is put forward, including one that is rejected in subsequent judicial review proceedings. If a person makes a submission, including a legal submission, and the decision maker does not consider it necessary to deal with it in the reasons for the decision, either because they consider it irrelevant, outside the scope of the subject matter of the decision or as having been answered implicitly in the reasons that are given (as per Mulcahy J. in Ironborn), then the decision maker is not obliged to give reasons for rejecting it.
157. In respect of the trial judge's finding, the substance of it seems to be that a point raised before a decision maker that later fails before a court is unlikely to be sufficiently substantive or relevant to have warranted reasons for its rejection. I do not consider there is any error in that conclusion. As identified earlier, only submissions relevant to the decision made require to be addressed in the reasons for the decision. If a point raised by an applicant to challenge a decision in proceedings is rejected, it is unlikely to be a point that the decision maker was required to address when giving reasons for the decision.
158. In the circumstances I am satisfied that the Minister gave adequate reasons for his Direction, that he was not obliged to address the specific points raised by the appellants and that the decision of the trial judge in this respect should be upheld.
CONCLUSION
159. For the reasons set out in this judgment, this appeal is rejected.
160. In so far as the costs of the appeal are concerned, it appears that costs protection applies to these proceedings. In those circumstances, it is proposed to make no order as to costs. In respect of the costs order in the High Court, I do not propose to disturb that order.
161. If any party wishes to contend for a different costs order, it should file and serve a written submission of not more than 2,000 words within 14 days from the date of delivery of this judgment, after which the opposing party will have a further 14 days in which to file and serve replying submissions of similar length.
162. Since this judgment is delivered electronically, I am authorised by the President and Collins J. to state that they agree with it and with the orders proposed above.
Result: Appeal Dismissed
Appendix
AA: Appropriate Assessment
ANCA: Aircraft Noise Competent Authority
ICAO: International Civil Aviation Authority
NAO: Noise Abatement Objective
NAP: Noise Action Plan
NPF: National Planning Framework
NPO: National Policy Objective
OPR: Office of the Planning Regulator
SEA: Strategic Environmental Assessment