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Cite as: [1999] 1 IR 596, [1999] IEHC 113

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Cablelink Ltd. v. An Bord Pleanala [1999] IEHC 113; [1999] 1 IR 596 (23rd February, 1999)

THE HIGH COURT

1998 No. 150 J.R.

BETWEEN

CABLELINK LIMITED

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

Judgment of Mrs. Justice Carroll delivered on the 23rd day of February, 1999

1. This is an application for Judicial Review of a decision of An Bord Pleanala dated 5th February, 1998 on appeal from a decision of Kilkenny County Council.

2. The County Council granted planning permission on 11th September, 1997 to Stephen Hartley "for retention of existing poles with application or completion, retention of existing pump house and permission for erection of a television deflector system on lands at Ballinclare, Glenmore, Co. Kilkenny" subject to five conditions.

3. The Applicant, Cablelink Limited, is the owner of an MMDS (Multipoint Microwave Distribution Service) Licence under the Wireless Telegraphy (Television Programme Retransmission) Regulations, 1989 for cell 27, being part of Counties Waterford and Kilkenny which included the area at Ballinclare, Glenmore, Co. Kilkenny. Unlicensed television retransmission services which operate a deflector system are found in a number of parts of the country. The parents of Mr. Hartley were involved in litigation with the Applicant regarding the operation of a deflector system at Ballindare, which was settled. The details of that litigation are not relevant to the point I have to decide.

4. The Applicant appealed to An Bord Pleanala against the grant of planning permission on the grounds:-

1. Lack of technical information supplied.

2. Lack of operations details.

3. No reference to the availability of a licence to operate.

5. The first two grounds are not relied on in these judicial review proceedings.

6. On 5th February, 1998, An Bord Pleanala dismissed the appeal in exercise of the powers conferred by Section 14(1) of the Local Government (Planning and Development) Act, 1992 (the 1992 Act).

7. Section 14(1) of the 1992 Act provides:-

"Subject to subsection (2), the Board shall in the following circumstances have an absolute discretion to dismiss an appeal:-

(a) where, having considered the grounds of appeal, the Board is of opinion that the appeal is vexatious, frivolous or without substance or foundation; or

(b) where having regard to:-

(i) the nature of the appeal (including any question which in the Board's opinion is raised by the appeal); and

(ii) any previous permission or approval which in its opinion is relevant, the Board is satisfied that in the particular circumstances the appeal should not be further considered by it."

8. In coming to their conclusion the Board relied on a report from the Planning Inspector dated 30th January, 1998 which advised that the points raised did not constitute matters relating to the proper planning and development of the area as they more properly related to matters covered by licensing arrangements for such installations set down by central government. This would include technical parameters such as antennae, power, etc. He said the Applicant appeared to be using the planning appeals procedure for an aim that lies more appropriately in the jurisdiction of communications licensing and he advised that the Board should consider dismissal of the appeal as being vexatious and without substance or foundation as provided for under Section 14 of the 1992 Act.

9. The Applicant claims that the Board failed to take into account the fact that Stephen Hartley did not have a licence and failed to take into account the proposals and objectives of the government or the Minister for Communications related to the possession and use of apparatus for wireless telegraphy and broadcasting. The Applicant argues that An Bord Pleanala were under a duty to keep itself informed of the policies and objectives of the government.

10. Section 5 of the Local Government (Planning & Development) Act, 1976 provides:-

"(1) The Board shall so far as may, in the opinion of the Board, be necessary for the performance of its functions, keep itself informed of the policies and objectives for the time being of the Minister, Planning Authorities and any other body which is a public authority whose functions have or may have a bearing on the proper planning and development (including the preservation and development of amenities) of cities, towns or other areas, whether urban or rural."

11. An Bord Pleanala is also obliged under Section 7(1)(e) of the Local Government Act, 1991 in performing the functions conferred on it by or under that Act or any other enactment to have regard to "(e) policies and objectives of the government or any Minister of the government in so far as they may affect or relate to its functions".

Under Section 3(1) of the Wireless Telegraphy Act, 1926 no person is entitled to keep or have in his possession anywhere in the State any apparatus for wireless telegraphy save in so far as such keeping or possession is authorised by licence granted under the Act and for the time being in force.

12. The Broadcasting and Wireless Telegraphy Act, 1988 provides that a broadcast shall not be made from any premises or vehicle in the State unless it is made pursuant to or in accordance with the licence issued by the Minister [Section (31)].

13. The Applicant interpreted the Board's decision as meaning that they decided they could only consider planning and development matters. It says that legality must also be taken into account and that by granting planning permission An Bord Pleanala is supporting an activity which is unlawful. It claims An Bord Pleanala should consider the common good and must take account of the policies of the government (see Keane & Anor -v- An Bord Pleanala and Others , S.C. 22nd April, 1998 (unreported) Keane J.).

14. An Bord Pleanala submits that the only issue is that Stephen Hartley did not possess a licence. This is a personal matter whereas the planning permission relates to land. What An Bord Pleanala had to decide was whether these buildings or apparatus were appropriate for this land. The grant of planning permission for the erection of a deflector system did not entitle the owner of the land to operate or own a deflector if it would be in breach of any other statutory regulation. Section 26(11) of the Local Government Planning and Development Act, 1963 (the 1963 Act) provides:-

"A person shall not be entitled solely by reason of a permission or approval under this Section to carry out any development".

15. The addition of a condition providing that no development should take place until a licence had been acquired would have added nothing to the planning permission. Such a condition is already there by virtue of Section 26(11). It is not the case that planning permission can only be granted when all other requirements are met. The Board cannot assume that the grantee will act illegally on foot of planning permission (see Convery -v- Dublin County Council , S.C. 12th November, 1996, Keane J. and Kelly & Anor. -v- An Bord Pleanala , 19th November, 1993, Flood J.).

16. I do not interpret the decision of An Bord Pleanala as meaning that the Board failed to take into account the fact that Stephen Hartley did not have a licence or that it failed to take into account government objectives. The fact that there was no licence was made known to the Board and the Board was also aware that a licensing system was operated by central government. It was entitled to take the view that the enforcement of the Wireless Telegraphy Acts was a matter for central government. This does not amount to failing to take the absence of a licence or government objectives into account. Rather, the Board considered them and decided that enforcement of the Wireless Telegraphy Acts was not a matter to do with planning. Further, it could not be said to be supporting an illegal activity. It could not assume that the owner of the land to which the planning permission attached would act illegally. As provided by Section 27(1) of the 1963 Act the grant of planning permission did not confer the right to own or operate a deflector system.

17. Accordingly, I refuse the relief sought.