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Wicklow Heritage Trust Ltd. v. Wicklow County Council [1998] IEHC 19 (5th February, 1998)

THE HIGH COURT

JUDICIAL REVIEW

1996 No. 209 J.R.

BETWEEN

WICKLOW HERITAGE TRUST LIMITED

APPLICANT

AND

WICKLOW COUNTY COUNCIL

RESPONDENT

JUDGMENT of Mrs. Justice McGuinness delivered the 5th day of February 1998

1. In these judicial review proceedings the Applicant, which is a company limited by guarantee, seeks an Order of Certiorari quashing the decision of the Respondent made in or about the 8th day of March 1996 to submit an Environmental Impact Statement on a proposed East Wicklow Land Fill Site at Ballynagran, Coolbeg, Kilcandra, Co. Wicklow, to the Minister for Environment for certification pursuant to the Local Government (Planning and Development) Acts, 1963-1993 and the regulations made thereunder. The Applicant, who alleges that the proposed development of a land fill site at Ballynagran constitutes a material contravention of the development Plan of Wicklow County Council, also seeks a declaration to that effect, a declaration that the decision of the County Council to seek the Minister's certification of the environmental impact statement is ultra vires and void and an Order of Prohibition restraining the County Council from further proceeding with the certification process until such time as the necessary statutory procedures for the material contravention of the said Wicklow County Development Plan have been carried out. The Applicant seeks in addition a declaration that the designation of a site for land fill purposes is a reserved function pursuant to the 1993 Waste Regulations and that it is ultra vires the Wicklow County Manager to designate such a site having regard to the provisions of those regulations. The Applicant also seeks a number of other orders amounting to a declaration that the proposed development is ultra vires the powers of the Council in the absence of the adoption of a waste plan.

THE FACTUAL BACKGROUND

2. In or about the year 1988 Wicklow County Council considered the adoption of a waste management plan for the Council's administrative area. A draft Waste Management Plan was prepared and discussed but was never adopted by the County Council. Included in the draft plan was a survey of the then operating waste disposal sites and estimates of the waste disposal needs of the county up to the year 2006. The draft plan stressed the urgent need to secure a suitable land fill site in the north east part of the county. Potential sites at Bromley, Kilpedder and Ballyman Fassaroe were mentioned.

3. As I have already stated, the draft Waste Management Plan was never adopted by the County Council. In 1989, the following year, the Council adopted the current County Development Plan. The Development Plan set out the Council's planning objectives in considerable detail but did not refer to the objective of waste management or to the provision of land fill sites. The Development Plan has been under review for a number of years, the statutory five year review period having been extended on a number of occasions by the Minister for the Environment. However, the revised Development Plan had not been completed and adopted by the County Council at the time of the issue or at the time of hearing of the instant proceedings.

4. In September 1992 a firm of consulting engineers (MC O'Sullivan & Company Limited) was appointed as consultant engineers to the Council to prepare an Environmental Impact Statement and preliminary report for a North East Wicklow waste disposal facility to service the area which was then (and still is now) serviced by a land fill dump at Fassaroe near Bray. There was a need for a new land fill site to be provided as a matter of urgency. The consultants investigated a total of twenty-two sites and published a preliminary report in November 1993. The consultants concluded that the preferred land fill location should be at Ballynagran, subject to public consultation and the preparation of an Environmental Impact Statement and its approval by the Minister for the Environment as required by law. A model of the proposed waste disposal site at Ballynagran was prepared.

5. On 3rd December, 1993 the consultants gave a briefing to all the elected members of the County Council for the Wicklow electoral area. The proposals were then presented to a full meeting of the elected members of the Council in December 1993. In a "Newsletter" dated 6th December, 1993 prepared by the County Manager's office a series of proposals which it was stated would form the basis of Wicklow County Council's strategy for the management of waste in the East Wicklow area for the next twenty years was presented. In a summary of the proposals it was stated that the strategy proposed a "central land fill facility at Ballynagran". From January 1994 a model of the proposed land fill facility at Ballynagran was displayed in the County buildings in Wicklow and public meetings were arranged at different locations in East Wicklow to explain the proposals. The consultants then proceeded to prepare an Environmental Impact Statement on the project.

6. On 18th July, 1994 at a meeting of the elected members of Wicklow County Council a resolution was put forward under Section 3 of the City and County Management Act, 1955 rejecting the proposals put forward by the consultants to locate a land fill waste disposal site at Ballynagran and calling for the other sites included in the preliminary report to be actively investigated. In their resolution the members of the Council were highly critical of the selection of Ballynagran as a land fill site on the grounds that they felt that it would do environmental damage to a scenic area, would create damage to existing agricultural and horticultural enterprises in the area, was unsuitable in a high tourist area and would generate unnecessary large increases in traffic movement on the N11 main road. On legal advice the County Manager and his officials asserted that the decision whether or not to proceed with the land fill site at Ballynagran or in any other location was solely a matter for the County Manager in the exercise of his executive functions. The County Manager refused to be bound by the resolution of the Council. Arising out of this situation judicial review proceedings were issued by a company called East Wicklow conservation Community Limited. The proceedings came on for hearing before Costello P., who held that the provision of a site for waste disposal was a work that the Local Authority was required to undertake by or under statute and that therefore the elected councillors had no power under Section 3 of the City and County Management (Amendment) Act, 1955 to direct the County Manager not to proceed with the work ([1995] 2ILRM 16). On appeal the Supreme Court upheld the decision of the learned President ([1997] 2ILRM 72).

7. The firm of consultants completed the environmental impact statement in regard to the proposed land fill site at Ballynagran in January 1996. In or about the

8th March, 1996 it appears that the County Manager decided to forward the said Environmental Impact Statement to the Minister for the Environment for certification pursuant to Part IX of the Local Government (Planning and Development) Regulations 1994 (S.I. 86 of 1994).

8. The Applicant sought leave to issue judicial review proceedings by Statement dated 24th June, 1996. An Order granting leave was made by Laffoy J. on 25th June, 1996. The County Council filed their Statement of Opposition on 17th December, 1996. During the course of the hearing before this Court counsel for the Respondent argued that the Applicant had produced no evidence before the court of the making of the impugned decision to forward the Environmental Impact Statement to the Minister for the Environment for certification. I accept that, apart from assertions contained in affidavits sworn on behalf of the Applicant, the Applicant did not produce specific evidence of the making of this decision on or about the 8th March, 1996. However, the lack of evidence is not challenged in the Respondent's Statement of Opposition. The decision is accepted as having taken place in the affidavits sworn on behalf of the Respondent, in particular the affidavit sworn on behalf of the Respondent by Peter Goodwin, senior executive engineer, sworn the 17th December, 1996. I therefore consider that it is sufficiently well established before this Court that the decision to forward the Environmental Impact Statement to the Minister was made and put into effect.

9. Before considering the matter further I should say that I appreciate the difficulty in which the County Council finds itself. The Council has a statutory duty to dispose of household and other waste in its area. The land fill sites which are at present in use in the county will shortly be completely full and there is an urgent need for a new land fill site, particularly in the North East area of the county where there has been a very considerable increase in population in recent years. Such a land fill site will be necessary even if the Council takes steps to encourage and promote such alternative waste disposal methods as recycling and any new land fill site must be managed in accordance with the standards laid out in environmental legislation.

10. It is also obvious that no one living in the county will want to have a land fill site, or to put it more plainly a rubbish dump, situated close to his or her own home or in the immediate area. It is not insignificant that a large number of the cases against planning authorities which have been heard by this Court relate either to land fill sites or to halting sites; this is a clear operation of the principle commonly known as NIMBY - or "not in my back yard". Elected members of the various local authorities are often under huge pressure to vote against the siting of waste disposal facilities in any particular area. Wicklow County Council is perhaps in a specially difficult position as very large areas of the county are quite rightly zoned as special scenic areas; these are areas of mountain country, of coastline and seashore, and well-known beauty spots such as the Vale of Avoca and Glendalough. It is also clear that the County Council cannot site a waste disposal facility in the centre of one of the towns in the county.

11. It is, however, not the task of this Court to rule in any way on the merits or otherwise of the planning decision as to where the land fill site proposed by Wicklow County Council should be located. The role of the courts in the scheme of planning legislation has been well described by the learned Barr J. in Tennyson -v- Corporation of Dun Laoghaire [1991] 2 IR 527. At page 534 the learned Judge stated:-

"Where a decision is made by a planning authority on an application made to it by a developer under Section 26 of the Act of 1963 for permission to proceed with a proposed development, it may be open to challenge on two broad grounds. First, on purely planning criteria (as, for example, a contention that the decision of the authority to exclude certain units from a proposed development was erroneous in that it was unnecessary and did not accord with good planning practice) and, secondly, that the decision is ultra vires the power of the planning authority. The latter category of dispute includes issues relating to the meaning of the development plan relating to the particular application. The Oireachtas has provided in the planning code a forum for the adjudication of appeals from decisions of planning authorities within the first category i.e., those relating to planning matters per se. Such appeals are heard and determined by An Bord Pleanala which is a tribunal having the benefit of a special expertise in that area. The Court is not an appropriate body to adjudicate on such matters and in my view it ought not to interfere in disputes relating to purely planning matters. However, where the dispute raises an issue regarding a matter of law such as the interpretation of the wording of the development plan in the light of relevant statutory provisions and the primary objective of the documents, then these are matters over which the Court has exclusive jurisdiction. An Bord Pleanala has no authority to resolve disputes on matters of law.

Having regard to the foregoing, the first question which I must answer is whether the dispute which is the subject matter of these proceedings ought to be regarded as essentially a planning matter or whether it is a question of law as to the proper interpretation of the 1984 Development Plan. I have no hesitation in concluding that the issues raised on this application are within the latter category and, therefore, must be determined by the Court and not by An Bord Pleanala."

12. I am in complete agreement with the learned Barr J. in his description of the different tasks of An Bord Pleanala and the court within the framework of the planning legislation. Therefore it is not for this Court to comment or to decide in any way on the advisability or otherwise of locating a land fill site at Ballynagran. However, the issue as to whether the placing of such a land fill site at Ballynagran is a material contravention of the development plan for County Wicklow is clearly a matter of law. The issue as to whether a development is a material contravention of the relevant development plan is one which has been decided by this Court and by the Supreme Court in a number of cases. I will refer to some of these cases later in this Judgment. In the instant case the senior executive planner, Mr. Frank O'Gallachoir, has issued a certificate confirming that in his opinion the proposal to place the East Wicklow land fill at Ballynagran, Coolbeg and Kilcandra does not materially contravene Wicklow Council 1989 county development plan. Clearly Mr. O'Gallachoir's opinion must be treated with respect but the various decisions of this Court and of the Supreme Court undoubtedly establish that the decision as to whether a particular development is or not a material contravention of the county plan is a matter for the court. Equally the other issues which are raised in the instant case, such as locus standi, the necessity under legislation for a waste management plan and the need for the siting of a land fill project to be an essential part of such a waste management plan are matters of law which fall to be decided by this Court.

13. It appears to me that a degree of confusion arose in some of the arguments put before this Court, particularly in regard to the question as to whether the decision of the County Manager to place a land fill site at Ballynagran was unreasonable. It was argued (quite correctly) that for the courts to decide that such a decision was unreasonable the standard to be applied was that laid down by Henchy J. in Keegan -v- The Stardust Tribunal [1986] IR 642 at 658 which has been repeatedly affirmed by this Court and by the Supreme Court. Very shortly summarised, the view of Mr. Justice Henchy, with which all the other members of the court in the Keegan case agreed, is in this passage:-

"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision maker should be held to have acted ultra vires, for the necessary implied constitutional limitation of jurisdiction in all decision making which affects rights or duties requires inter alia that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision."

14. In the instant case, were the courts to be considering whether the siting of the land fill project at Ballynagran could be overturned on purely planning grounds, the decision could only be impugned if it "plainly and unambiguously flew in the face of fundamental reason and common sense." If that were the question before me I would on the available evidence not consider that the County Council's decision was unreasonable in that sense, but this opinion is purely obiter. As I have already stated, the matters which I have to decide are matters of law. In considering whether the County Council's decision is or is not a material contravention of the County Development Plan I should not approach the question by looking at the opinion of the Senior Executive Planner that the decision is not a material contravention and deciding whether his opinion is "unreasonable" in the Keegan -v- Stardust sense. On the contrary, I must consider the Ballynagran siting in the light of the County Development Plan itself, in the light of statute law, and in the light of the case law already laid down by this Court and the Supreme Court. The question is not whether the Senior Executive Planner or the County Manager were unreasonable in thinking that the Ballynagran site was not a material contravention; the question is whether they were correct in law in this opinion.

THE ISSUES AND THE LAW

15. In both his written and his oral submissions to the Court counsel for the Applicant stated that there were two main planks in his argument. The first of these was that the siting of the land fill project at Ballynagran was a material contravention of the County Development Plan and as such could not be decided solely by the County Manager. Being a material contravention it would require a variation of the Development Plan in accordance with the statutory provisions set out in the Local Government (Planning and Development) Acts, 1963-1993. Section 19(7) of the 1963 Act provides that "the making of a development plan or any variations of any such plan shall be a reserved function" .

16. The second plank of the argument of the Applicant is that the 1979 European Communities (Waste) Regulations provide that matters relating to the selection of sites for waste disposal are to be a reserved function and that therefore the decision on the location of a land fill site for Wicklow is a matter reserved for the elected members of the local authority. It is also argued that the decision of the Respondent to select the site at Ballynagran is ultra vires the Respondent in the absence of the adoption of a statutory Waste Plan.

17. Counsel for the Respondent denies that the location of the land fill site at Ballynagran is a material contravention of the County Development Plan and relies on the certificate by Mr. O'Gallachoir, the Senior Executive Planner, and the reasons given for his opinion in his affidavit. With regard to the second plank of the Applicant's argument counsel for the Respondent points out that the waste plan of 1988 was a draft waste plan only and is of no legal effect. He submits that there was no need for a decision of the elected members of the County Council since the matter is not a reserved function in the absence of an actual waste plan. Counsel for the Respondent also submitted that the Applicant had no locus standi to pursue these proceedings and in this he relied on the Judgment of the learned Lynch J. in the Supreme Court in Malahide Community Council -v- Fingal County Council (unreported 14th May, 1997).

18. I propose to consider these issues in the light of the statute law and the decided cases.

LOCUS STANDI

19. I have recently dealt at some length with the matter of locus standi of a company limited by guarantee of a similar nature to the Applicant in my Judgment in the case of Blessington Heritage Trust Limited -v- The County Council of the County of Wicklow , The Minister for the Environment & Roadstone (Dublin) Limited (unreported

21st January, 1998), and I do not think it is necessary to repeat in full here what I set out in that Judgment.

20. Traditionally locus standi in planning cases has been interpreted widely by the courts. In her book "Environmental and Planning Law" Ms. Yvonne Scannell describes the situation thus (at page 108):-

"It is submitted that because planning legislation envisages the involvement by members of the public in all stages of the planning process and because many judicial decisions have, in varying ways, suggested that 'in all planning matters there are three parties: the developer, the planning authority (or An Bord Pleanala in the case of an appeal) and the members of the public', locus standi to challenge what McCarthy J. described in the Supreme Court as 'an environmental contract between the planning authority ..... and the community' McGarry -v- Sligo County Council [1989] ILRM 768-772 is very wide indeed and is certainly not confined to persons whose proprietary interests are affected. It probably extends to all members of the public liable to be affected by the provisions of the development plan unless there are countervailing factors. Thus, for example, if the nature and gravity of the allegations made are serious, a very wide range of persons will be accorded locus standi, whereas if they are trivial, it may well be denied. The nature of the remedy sought may also influence the court's discretion: it may be easier for an ordinary member of the public to obtain a declaration than an enforceable order of Mandamus. The locus standi rules are therefore essentially a matter for the courts discretion but all indications in environmental cases to date support the view that locus standi for judicial review in these cases will rarely be denied."

21. The specific question in this case, however, is whether locus standi is possessed by a company as opposed to an individual person. This is the question which Lynch J. dealt with obiter in the Malahide Community Council case and which was also dealt with very fully, subsequent to a lengthy hearing, by the President of this Court in Lancefort Limited -v- An Bord Pleanala, Ireland and The Attorney General and Treasury Holdings Limited (unreported 6th June, 1997). The same question came before me in the Blessington Heritage Trust Limited case. In the Malahide Community Council case the learned Lynch J. cast doubt on the locus standi of the Applicant in that case because he felt that a limited company could not enjoy the benefits of good environmental planning nor could it suffer from the undesirable results of a bad planning decision such as nausea, smells, excessive noise, etc. A limited company could only be affected by a planning decision which affected its material assets.

22. The learned President of this Court, however, in the Lancefort case, after careful analysis of the law and the facts, decided that the Applicant company had locus standi. This was largely based on the previous and present activities in the context of environmental planning of the members of that company and the importance of the participation of members of the public in the planning process.

23. In the Blessington Heritage Trust case I preferred to follow the decision of the President of this Court and in this context I said (at Page 33):-

"The framework and scheme of our legislation on local government planning and development is essentially one of balance between a number of interests - those of the developer (ranging from the individual developer to the major development company), those of the local planning authority in promoting proper planning and development in its administrative area, those of the Minister in maintaining central supervision under the legislation, and last but by no means least those of the ordinary members of the public who reside in the environment which is vitally affected both by overall development plans and by individual planning decisions. The rights of all these individuals and groups are carefully and in detail spelt out in the planning legislation and the courts should at all times endeavour to maintain the balance envisaged in the legislation. In McGarry -v- Sligo County Council [1989] ILRM 768 the learned McCarthy J. famously described the development plan thus:-

'When adopted, it forms an environmental contract between the planning authority, the Council and the community, embodying a promise by the Council that it will regulate development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially.'

In cases like the instant case it may well be argued as it was in the Lancefort case that companies such as the Applicant company have been incorporated simply to afford the true Applicants "a shield against an award of costs", to use the words of the learned Morris J. I have no doubt that this is a relevant factor and one which must cause concern to a developer such as the Notice Party. However, it could also be argued that in cases such as the present the individual member of the public may in practice be denied access to the courts - or at least have that access made much more difficult - by the danger of an award of costs against him in a case where his opponent is a large development company with the resources which enable it to pursue lengthy and costly litigation with comparative impunity. Over-reliance on the incorporation of companies such as the Applicant in this case may tip the balance too far in favour of objectors or concerned local persons; on the other hand, blank refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well resourced developer. It seems to me that the balance is best preserved by the course followed by the learned Morris J. The court should look at the factual background in each case and, if necessary, maintain the balance by the making of an Order for Security for costs. I therefore conclude that the Applicant company has locus standi to maintain the present proceedings."

24. In the present case there is no involvement by a wealthy developer. However, the members of the general public are challenging the local authority and it, too, has a great deal more resources and power than the average individual. As in the Blessington case the members of the Applicant company in this case are largely speaking local people who have demonstrated concern for their local environment over a period of years. I consider that they have brought themselves within the parameters laid out by the President of this Court in the Lancefort Judgment and that they have locus standi to maintain these proceedings.

MATERIAL CONTRAVENTION

25. Section 22(1) of the Local Government Planning and Development Act, 1963, (the 1963 Act) provides:-

"It shall be the duty of a planning authority to take such steps as may be necessary for securing the objectives which are contained in the provisions of the development plan."

26. Section 39(1) of the 1963 Act provides that:-

"the Council of a county shall not effect any development in their county health district which contravenes materially the development plan."

27. These Sections provide that local authorities may carry out such developments as are consistent with the provisions of their development plan and must refrain from carrying out those developments which materially contravene the development plan. Such a "material contravention" may only be put into effect if the statutory provisions contained in the 1963 Act are followed - in other words if the County Council decide on a variation of the plan, having carried out the procedures in regard to publication, notices, and consideration of objections and representations set out in Sections 21 and 21A of the Act. Such a decision is a reserved function of the elected members of the County Council.

28. Under Section 19 of the 1963 Act every planning authority (of which the Respondent is one) must make a development Plan for its area. Section 19(2) provides that a development plan shall consist of a written statement and a plan indicating the development objectives for the area in question. The subsection then sets out the objectives which must be included. For rural areas such as Ballynagran, these objectives are:-

" (i) for the development and renewal of obsolete areas,

(ii) for preserving, improving and extending amenities,

(iii) for the provision of new water supplies and sewerage services and the extension of existing such supplies and services."

29. The Development Plan may also include other objectives. Subsection (3) of Section 19 provides that:-

"Without prejudice to the foregoing subsection and subsection (5) of this Section a development plan may indicate the objectives for any of the purposes mentioned in the Third Schedule to this Act and, with respect to areas other than county boroughs, boroughs, urban districts and scheduled towns, objectives for the use solely or primarily (as may be indicated in the development plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise). "

30. The Third Schedule to the Act provides a list of objectives, including in

31. Part IV entitled Amenities:-

"Prohibiting, regulating or controlling the deposit or disposal of waste materials and refuse, the disposal of sewage and the pollution of rivers, lakes, ponds, gullies and the seashore."

32. It is not, therefore, a mandatory requirement for the Council to include the provision of waste disposal sites as an objective in the plan, but it may do so under the Third Schedule. In the event there is no reference to waste disposal sites in the 1989 Wicklow Development Plan. Since the Councillors had so recently, in 1988, discussed a draft Waste Management Plan which included references to waste disposal sites, they may well have believed that in the very near future they would finalise and adopt a Waste Management Plan and that the subject of waste disposal sites would best be dealt with there. Be that as it may, the provision of waste disposal sites was not included as a planning objective in the 1989 plan, which is the plan currently in force in Wicklow.

33. It is now necessary to look at the planning objectives as actually set out in the 1989 plan in so far as they would apply to Ballynagran and the surrounding area. Under the heading "Rural Areas Policy" the plan sets out at paragraph 2.2:-

"The policy of the Council is to generally discourage sporadic development in rural areas, especially in rural landscape areas. This policy is necessary to preserve scenic amenity, to protect high quality agricultural land (see map number 2) and to conserve the attractiveness of the county for the development of tourism and the creation of tourist related employment. It is an objective to preserve for farming purposes those areas of agricultural land containing a very wide use-range soils coupled with low altitude and low rainfall and to prevent the encroachment of building development on those areas of potential high output. "

34. When one looks at Map No. 2 it is clear that the Ballynagran area is included as an area of high quality agricultural land. Paragraph 2.2 of the plan goes on to state:-

"It is recognised that County Wicklow has a wealth of beautiful scenery, which is the county's greatest attraction to tourists and day trippers and is an essential residential amenity for residents of the county. It is therefore the policy of the Council that:-

(a) physical developments should not detract from the scenery of mountain, moorland or coastal areas,

(b) archaeological, historical and architectural features be preserved intact,

(c) the abundance of hedgerow and woodland trees be retained and planting be carried out to replace trees lost because of commercial demand, disease or age,

(d) the rural scenery of the county should be preserved in support of the most attractive areas.

Modern farming trends are resulting in detrimental changes to the landscape of the county caused by the removal of hedgerows and the felling and clearance of trees and woodlands. The removal of these natural features can create large featureless tracts of land, without the traditional vegetation or field pattern. Accordingly, the Council will, through the use of Tree Preservation Orders, endeavour to retain the most important natural features and field patterns."

35. In paragraph 2.6 the Development Plan goes on to deal with tourism policy and states:-

"With the growth of affluence, mobility and leisure time tourism is one of the major growth areas of the national economy. With its wealth of visual scenery, that still remains largely unspoilt, and its close proximity to the Dublin Metropolitan area which is the point of entry to the country for most foreign visitors, Co. Wicklow is particularly well placed to benefit economically from tourism."

36. The plan in Chapter 4 goes on to deal with policy in areas of special control which are in general areas of special amenity or interest. The Ballynagran area is not included in the Plan as an area of special control.

37. As I have stated the Ballynagran area is included in Map No. 2 in the Plan as an area of high quality agricultural land. It is at present being used for agricultural purposes. This is fully set out in a report on "the soils, main farming activities and possible impact of a land fill development at Ballynagran, Wicklow" which was prepared by Teagasc in

38. May, 1996 and which is exhibited in the affidavit of Val Cosgrave on behalf of the Applicant. In the non-technical summary of the Environmental Impact Statement for the proposed East Wicklow land fill produced for Wicklow County Council by their consultants

39. M.C. O'Sullivan, Chapter 6 deals with the existing environment. under Land Use the consultants state:-

"the lands of the catchment are mainly used for agriculture to include dairying, sheep, dry cattle, tillage and horticulture. Other categories of human activity include quarrying, forestry, public house/restaurant, landscaping, motor repairs, furniture making and printing. There are vegetable and mushroom growing enterprises nearby. The upland slopes support cereal crops while the low ground is poorly drained and is thus used mainly for livestock pasture."

40. Under the heading Landscape the consultants state:-

"The proposed land fill would be set in a landscape of rolling farmland made up of comparatively small fields by densely planted mature hedgerows (sic). In a county renowned for the beauty of its landscape it is attractive rather than spectacular. It does not fall into either of the two landscape categories 'outstanding natural beauty' or 'scenic importance' outlined in the county development plan. The hedgerows and continuous screens of mature trees contain many oak, beech, ash, sycamore, hawthorn and pine extending up to the forestry plantation to the north and out over the landscape in all other directions."

41. Counsel for the Applicant drew attention to a number of occasions on which planning permission had been refused by Wicklow County Council in the Ballynagran area and surrounding areas since the adoption of the County Development Plan in 1989. These were as follows:-

(1) In 1989 William Byrne was refused Planning permission for a land fill of

6.5 acres at Coolbeg. The reasons given were the creation of traffic hazards especially on the N11 road and that the development was contrary to proper planning and development and a possible public health hazard. It appears that this application was considered at some length by the County Council and it was held that more information was needed prior to the granting of any possible planning permission. It is not clear whether the information sought was ever provided.

(2) In 1990 William Nolan was refused planning permission for a bungalow at Coolbeg. This was stated as being contrary to the development plan as it was proposed for a rural area of amenity value which is an area of special control in which it is the policy of the county development plan to control development to maintain the character and scenic values of the area. It was stated that the proposed development would be contrary to this policy and would seriously interfere with views of special amenity which it was necessary to preserve because the development would be openly visible in an unscreened position when viewed from the N11 which was the most important tourist route in the county and would therefore be seriously injurious to the visual amenities and the rural character of the area.

(3) In 1991 Michael Enright was refused permission to erect a dwelling at Glenealy. Here it was stated that the proposed development would constitute sporadic residential development in a rural area contrary to the county development plan policy. It was stated that the proposed development would be located in an elevated and unscreened position in an undeveloped rural area of high amenity where it would be visible over a wide area to the north. The development would be contrary to the County Development Plan policy that development in such areas should be controlled to maintain their existing character and scenic values and that the proposed development would interfere with views of special amenity value which it was necessary to preserve.

(4) In 1994 Lorraine Duffy was refused permission to erect a bungalow and septic tank at Glenealy. Again this was stated to be sporadic residential development which was contrary to the objectives of the Wicklow County Development Plan. In this case the decision of the County Council was upheld on appeal by An Bord Pleanala.

(5) In 1996 David Driver was refused permission to erect a bungalow with a septic tank and garage at Glenealy. This too was described as sporadic development in an area of special control and scenic amenity. It was located on an elevated and exposed site visible in views from the R752, one of the main tourist routes in the county, and would therefore be seriously detrimental to visual amenities of the area and contrary to county development plan policy. It was also stated that the proposed development would endanger public safety by reason of a serious traffic hazard.

(6) In 1996 David Mulcahy was refused permission for a temporary market on land adjacent to the Beehive Public House at Coolbeg. Here it was stated:-

"the site is located in a rural agricultural area. The development would be out of character and unsympathetic to the area and contrary to the County Development Plan policy that sporadic development in rural areas is discouraged in order to preserve the scenic amenity, to protect high quality agricultural land and to conserve the attractiveness of the county for the development of tourism and the creation of tourist related enjoyment (sic.)".

42. I think it probable that this should read "tourist related employment". At paragraph 3 of the refusal it is stated:-

"the proposed development would form an incongruous element in this rural area and would result in a significant deterioration in the character of the area and would therefore seriously injure the amenities of the area."

43. At paragraph 4 it is stated:-

"It is County Development Plan policy that the national primary road (i.e. the N11) should be protected from commercial exploitation and other development in the vicinity of the road, to ensure that the tourist be given a true impression of the beauty of the county, accordingly the proposed development would be contrary to this policy."

44. Finally it was stated that the development would endanger public safety by reason of increase in traffic movements which would create a serious traffic hazard particularly on the N11.

45. It is clear, therefore, that Wicklow County Council as the planning authority for the area was, quite rightly, maintaining a strict and careful control over development in the whole area around Ballynagran and Coolbeg.

46. I turn now to the case law on material contraventions. This matter has been considered on a number of occasions by this Court and by the Supreme Court.

In O'Leary -v- Dublin County Council [1988] IR 150 the Respondent County Council proposed to provide a site for the settlement of travelling people at Cherryfield, Linear Park which was in close proximity to the river Dodder. The site was intended to accommodate five families at any one time. The Applicants, who were residents of the areas adjoining the Park, sought a declaration that the proposed development would be a material contravention of the development plan and thus ultra vires the powers of the County Council. The County Council maintained that the proposal did not involve a material contravention of the plan because inter alia it envisaged a development of only a small section of a large high amenity area. In his Judgment the learned O'Hanlon J. quoted the relevant sections of the Dublin County Development Plan 1983 which set out the policy of the Council to conserve areas of high amenity as present in use and to seek to expand both these and further areas for recreational use. These areas included areas fringing waterways, both river and canal. The land in question was zoned as "G" in the Plan and it was set out in the Plan that "Caravan Park - Residential" developments would not be permitted in areas zoned "G". The learned O'Hanlon J. held that a halting site was in essence a residential caravan park and as such would be a material contravention of the County Development Plan. In regard to the contention that the development was a small one he held that were a private developer to seek planning permission for a similar "small" development in a high amenity area the Council would certainly not grant planning permission. At page 154 of the Report the learned O'Hanlon J. stated:-

"If an application were made by a private developer for permission to develop part of the lands in an area zoned as a high amenity area, by the erection of five dwellings for private residential accommodation, I have no doubt that it would be resisted strenuously by the planning authority on the basis that it would amount to a material contravention of the county development plan. I do not think a private developer would be allowed to argue that the area involved in this project was small in relation to the area comprised in a particular high amenity area, and that therefore the contravention, if any, was not 'material'. I think the requirements of the planning law have to be applied with the same stringency against the local authority, in this case, as would be the case if the proposal came from a private developer. The very praiseworthy motives of the County Council in endeavouring to make provision for deprived classes and to do it in a manner which seeks to involve all electoral areas within their territory, are not sufficient to absolve them from compliance with the planning law."

47. This dictum of O'Hanlon J. and his insistence that the requirements of the planning law "have to be applied with the same stringency against the local authority as would be the case if the proposal came from a private developer" have been widely followed in subsequent cases.

In Attorney General (McGarry) -v- Sligo County Council [1991] 1 IR 99 the Respondent County Council proposed to provide a waste disposal dump in a sand and gravel pit at the site of the Carrowmore Passage Grave Cemetery, an important archaeological site of which the Commissioners of Public Works were guardians. In 1979 the County Council as planning authority revised its development plan and included verbatim among its general objectives Parts III and IV of the Third Schedule of the Local Government (Planning and Development) Act, 1963 and asserted that its policy was to have regard to the special list of sites available in relation to areas of scientific and amenity interest, buildings of archaeological, geological and historical places or features of particular interest. It specified Carrowmore Passage Grave Cemetery as an item listed for preservation or protection. Applications for development in the area of Carrowmore were refused by the County Council citing the Development Plan and the expert advice to it of interested bodies, such as Bord Failte, An Taisce and the National Monuments Advisory Committee. In 1983 the County Council itself purchased a lease on a sand and gravel pit at Carrowmore and proposed to use it as a waste disposal site. In the High Court McWilliam J. held that having regard to the strict conditions in the management plan formulated by the County Council for the purpose of regulating the use of the proposed refuse dump, its use would not constitute a public nuisance and would not conflict with the provisions of the County Development Plan.

48. On appeal the Supreme Court overturned the decision of McWilliam J. and held that the very existence of a refuse dump or the use of a quarry as a refuse dump or tiphead in the area was itself a clear and material contravention of the development plan. During the course of his Judgment the learned McCarthy J. made his much quoted reference to the County Development Plan as an environmental contract between the planning authority, the Council and the community, which I have already quoted above. He went on to speak of the process by which the Council had acquired the sand and gravel pit at Carrowmore and went on to say:-

"It was beside the roadway; it was within 4/5 miles from Sligo town; it was calculated that in filling with refuse would last for upwards of twenty years with gradual covering with over burden and the eventual recreation of the rolling grassland that had once been there. This to the Sligo County Council, in the person of its executive, it being an executive power, seemed an admirable solution. It would combine the provision of a very convenient refuse dump with an environmental advantage of restoring the site itself. The Council was not dealing with the planning application; there was no legal requirement under the regulations of 1977 that it should consult the various scientific bodies mentioned; it consulted nobody, not even those with whom it had the environmental contract, its own community. It was not required to give formal notice to anyone; it merely dealt with Mr. Devaney (the owner of the sand and gravel pit). The Council thought it could go ahead without notice to the scientific bodies, without notice to the community, without notice to those whose planning applications had been refused and without encountering any real resistance. The Council was wrong; it reckoned without that combination of private advantage and public spiritedness that sometimes goes to law to bring bureaucracy to heel. It reckoned without the present Plaintiffs."

49. The learned McCarthy J. went on to say:-

"It does not require the resolution one way or the other of any particular conflict of evidence - there is no conflict of evidence in this regard; the conflict is as to the inferences to be drawn from the evidence with particular reference to the Plan. In my Judgment, the use of the quarry or pit as a refuse dump or tiphead is a clear and material contravention of the Development Plan; it seems to me to be of little moment that a road divides the quarry from the main cemetery area. It is not the manner of use of the dump; it is not that the dump will not be an actionable nuisance that is relevant; it is the very existence of the dump in the area in question. Every part of the development plan to which I have referred clearly identified the local, national and international importance of this area of County Sligo; it cannot save by doing violence to the language of the plan - by a material contravention of it - permit the maintenance of a refuse dump in that area."

50. This Judgment made it abundantly clear, if it was not clear before, that it is for the court to decide whether a particular development is a material contravention of the County Development Plan.

51. This position was further reiterated in Tennyson -v- Dun Laoghaire Corporation [1991] 2 IR 527 which I have already quoted above. In this case the planning authority in Dun Laoghaire proposed to grant planning permission to a developer to build nineteen houses on a site of 2.54 acres in Glenageary. In the 1984 Development Plan adopted by the Corporation the site location of the proposed development was categorised "Density Class C" providing a maximum density per acre of 3 "normal houses". The density of the proposed development was considerably in excess of that provided for in the plan. The Applicants, who were local objectors, brought judicial review proceedings seeking a declaration that the proposed development was a material contravention of the Development Plan. In granting the relief sought the learned Barr J. held that the issues raised by the application involved the interpretation of the 1984 Development Plan in the light of the relevant statutory provisions, which were legal issues within the exclusive jurisdiction of the Court and outside the competence of An Bord Pleanala. He also held that in seeking to interpret a development plan the court should ask itself what a reasonably intelligent person with no relevant expertise would understand by the provisions in question. He held that on account of the density of the development it constituted an unauthorised material contravention of the plan and that the planning permission was void.

52. At page 535 of the Report the learned Barr J. referred to the Judgment of McCarthy J. in In re XJS Investments Limited [1986] IR 750 as follows:-

"certain principles may be stated in respect of the true construction of planning documents:-

(a) to state the obvious, they are not acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material.

(b) they are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicates some other meaning ....'......

In the light of these authorities it seems to me that a court in interpreting a development plan should ask itself 'what would a reasonably intelligent person, having no particular expertise in law or town planning make of the relevant provisions'?"

In Wilkinson -v- Dublin County Council [1991] ILRM 605 the court went even further in holding that a particular development was a material contravention of the Development Plan. In that case the County Council proposed to provide a halting site for eighty-four caravans and in or about four hundred people at Mulhuddart, Co. Dublin. The area concerned was zoned in such a way that the provision of halting sites or residential caravan parks was permitted. In 1985 Dublin County Council had adopted a resolution seeking the preparation of a programme for the settlement of the travelling people in the county which would incorporate a county wide system of halting sites with no more than five families per site and schemes for group housing of no more than five per site. This was the general policy of the Council. When the Applicant sought an Order of Certiorari quashing the managerial order providing for the development of the halting site the learned Costello J.

held that the proposed development did not infringe the zoning provisions of the 1983 plan. He went on to say (at page 609):-

"But that does not end the matter. A development may still amount to a material contravention of the plan if it is one which was not consistent with the proper planning and development of the area. Accordingly, the question can be posed, as it was in O'Leary's case, Suppose a private individual had applied for permission to erect "a residential caravan park" on this site catering for eighty-four caravans and about four hundred persons in accordance with the exiguous plans now proposed, would planning permission have been given? I have no hesitation in concluding that no reasonable planning authority could conclude that such a development would be consistent with the proper planning and development of the area. Let me suppose that a concerned voluntary organisation applied to erect a "halting site" for members of the travelling community, as is now proposed, would planning permission be granted? It is perfectly clear that it is the policy of the Council that halting sites should only be small in size but I conclude that, apart from this consideration, no planning authority could regard a development of this magnitude, catering for so many persons in such barely adequate conditions, as being consistent with the proper planning and development of the area."

53. The learned judge would not accept the contention of the County Council that the development was of a purely temporary nature and held that

"in the light of its record over the last four years, I can only conclude that it is possible that the Council will use the site at Tyrellstown Cross for an indefinite period in the future as a halting site for at least four hundred members of the travelling community. In my opinion, such a development, whether it is called a halting site or a residential caravan park, is a material contravention of the Plan because no reasonable planning authority could regard this development as being consistent with the proper planning and development of the area. For this reason the manager's order was ultra vires his powers and should be quashed."

However in Ferris -v- Dublin County Council (Supreme Court unreported

7th November, 1990) the learned Finlay C. J. again considered the provision of a halting site by Dublin County Council. In this case the halting site was to be a temporary one providing for sixty-five travelling families, again in the Mulhuddart area. It was accepted that the zoning of the area in the county development plan permitted the establishment of halting sites. The learned Chief Justice held that, given that the site was definitely to be a temporary one, the decision to carry out this development was not so unreasonable as "to fly in the face of fundamental common sense as a matter of planning and development in the area". He held that the development was not a material contravention of the Plan but provided strict conditions to ensure that it was in fact temporary. Both the Wilkinson case and the Ferris case must, of course, be seen in the context of the fact that the zoning of the area concerned specifically permitted a development of the type proposed. The only reason that the learned Costello J. in Wilkinson held that the development was a material contravention was that it was so inordinately large that no reasonable planning authority could consider it to be consistent with the proper planning and development of the area. Both of these cases, therefore, must be distinguished from the instant case since in the 1989 Wicklow Development Plan there is no specific provision whether by zoning or otherwise for the siting of waste disposal facilities.

54. In the instant case it was submitted by the County Council that there was no necessity to include the provision of waste disposal sites as an objective in the development plan. The Council had a statutory duty to dispose of waste and it could therefore be assumed that waste disposal sites would be included in the county area. The question as to what objectives should be included in the County Development Plan was dealt with by the learned Barron J. in the case of Roughan and Others -v- Clare County Council (High Court unreported 18th December, 1996). This case again arose out of a proposal by the local authority to develop a halting site. Again the issue was whether or not the proposed development was a material contravention of the County Development Plan. At page 2 of his Judgment the learned Barron J. refers in some detail to the development objectives of the Development Plan for County Clare. He quoted Section 2.3.1 of the Plan as follows:-

"To designate areas as development zones:

- generally to prohibit development outside the development boundaries of settlements and development clusters located within those areas designated as special development zones.

This development objective would not apply to the following:-

- farmers and their sons and daughters wishing to build a dwelling for their own use on family land, provided that where possible any such dwelling is located in immediate proximity to an existing group of dwellings or to the original farm dwelling. This latter provision will not necessarily apply where such location would be undesirable from a the servicing or visual amenity point of view."

55. This phraseology is reminiscent of many of the clauses of the current Wicklow County Development Plan.

56. The learned judge goes on to follow the Judgment of O'Hanlon J. in O'Leary's case in regard to the Council's contention that the halting site would only take up a very small part of the area. He points out that in O'Leary's case:-

"O'Hanlon J. took the view that the requirements of planning law had to be applied with as much stringency against the local authority as such requirements would be applied against the private developer and accordingly the proposed development should be restrained."

57. At page 6 of his Judgment the learned judge states:-

"In the present case it seems clear that no development involving more than two units would be permitted by the local authority. It is also clear from previous applications for permission in special development zones that the local authority regards the exceptions laid down in the plan as being the only grounds upon which development may be permitted. I am satisfied that in the present case the proposed development is one which would be a material contravention of the development plan. There is a statutory procedure for the making of development plans which involves consultation and advertisement with and to the local population. They are entitled to their rights of such consultation and it seems to me that to allow any alteration of the plan which would not have been anticipated by those reading the plan would be in breach of the rights of the local population to such consultation."

58. In that case the County Council had argued that it was not necessary for a local authority to include all its development objectives in its plan. The learned Barron J. did not accept this submission. At page 6 of his Judgment he stated:-

"I do not accept that it is unnecessary for a local authority to include all its development objectives in its Plan. In my view, if such a submission was to be accepted it would mean that this would enable the local authority, in perhaps only exceptional cases but certainly in some cases, to totally override not only the Plan but the consultative procedures preceding the making of a Development Plan. In my view this cannot be the law."

59. From this brief survey of the decided cases a number of relevant principles emerge:-

(1) It is for the Court and not for the planning authority to decide as a matter of law whether a particular development is a material contravention of the local development plan.

(2) A development plan forms an environmental contract between the planning authority and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and further that the Council itself will not effect any development which contravenes the plan materially. In seeking to interpret the objectives set out in a Development Plan the court should ask what a reasonably intelligent person with no relevant expertise would understand by the provisions in question.

(3) The requirements of the planning law must be applied with as much stringency against the local authority as they would against a private developer.

(4) It is necessary for a local authority to include all its objectives in its Plan. If it were otherwise it would mean that the local authority could totally override its own plan.

60. The facts in the instant case fall to be considered in the light of these principles. In interpreting the objectives set out in the Wicklow County Development Plan it seems to me that it would never occur to a reasonably intelligent person without particular expertise that the provision of an extremely large waste disposal site with all its ancillary development could come within the objectives of Wicklow County Development Plan in regard to an area of rural amenity and high quality agricultural land. Given the history of refusal of various types of planning permission in the Ballynagran and surrounding area which I have listed earlier in this Judgment, I cannot accept that Wicklow County Council would give planning permission to a private developer to develop the size and type of waste disposal site which they themselves propose to develop. The very reasons which the County Council has given for refusing planning permission to the various private developments apply with equal and in some cases much more force to the development of an extremely large waste disposal site of the type described in the Environmental Impact Statement. In addition to being in an area of high quality agricultural land which is at present used quite intensively for agriculture the proposed site is adjacent to the N11 which is described by the Council itself as the main tourist route in the county. Ordinary common sense would inform one that it is bound to give rise to a considerable additional amount of heavy traffic. Even if managed with the utmost care as is set out in the Environmental Impact Statement it is hard to imagine it being anything other than a highly unpleasing intrusion on the surrounding landscape.

61. The objective of providing waste disposal sites, for whatever reason, is not included in the 1989 Wicklow County Development Plan. The County Council has not adopted a waste management plan which would provide for such waste disposal sites as an essential part of such a plan.

62. Given the legal principals and the factual evidence before this court it seems to me that I am constrained to hold that the proposed development of a waste disposal site at Ballynagran is a material contravention of the County Development Plan for Wicklow. As such it cannot be put into effect as an executive function of the County Manager; the proper statutory procedures under Section 26 of the Local Government (Planning and Development) Act, 1963 in regard to material contraventions of the Plan must be followed before such a development can take place. The Applicant therefore must succeed on this ground.

63. Given that I have decided that the development is in fact a material contravention of a County Development Plan, it is not necessary for me to consider here the second element in the Applicant's argument, that dealing with the necessity for the making of a waste management plan and related issues.

64. In regard to the actual relief sought by the Applicant in its proceedings I will make the following orders:-

(1) An Order of Certiorari quashing the decision of the Respondent to submit an environmental impact statement on a proposed East Wicklow landfill site at Ballynagran, Coolbeg, Kilcandra, Co. Wicklow for certification to the Minister for the Environment pursuant to the Local Government (Planning and Development) Acts, 1963 - 1993 and the regulations made thereunder.

(2) A declaration that the proposed development of a landfill site at Ballynagran, Coolbeg, Kilcandra in the County of Wicklow, constitutes a material contravention of the Respondent's County Development Plan and as such is ultra vires the powers of the Respondent and void.

(3) An Order of Prohibition restraining the Respondent from further proceeding with the said certification process until such time as the necessary statutory procedures for the variation of the said Wicklow County Development Plan have been carried out.