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O'Connell v. Dungarven Energy Ltd [2000] IEHC 101 (27th February, 2000)

THE HIGH COURT

No. 2001 / MCA5

IN THE MATTER OF AN APPLICATION PURSUANT TO THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 TO 1999

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1976 AS SUBSTITUTED BY SECTION 19 (4) (g) OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1992

AND IN THE MATTER OF AN APPLICATION

BETWEEN

COLLETTE O’CONNELL

APPLICANT

AND

DUNGARVAN ENERGY LIMITED

RESPONDENT

JUDGMENT of the Honourable Mr. Justice Finnegan delivered on the 27th day of February 2000.

This is an application pursuant to the Local Government (Planning and Development) Act 1963 as substituted by the Local Government (Planning and Development) Act 1992 Section 19 (4) (g) the Applicant relying on the provisions of subsections (1) (a) and subsection (2).

Section 27 (1) (a) provides as follows:-

“ Section 27 (1) Where:-

Development of land, being development for which permission is required under Part IV of the Principal Act has been carried out, or is being carried out, without such permission, or
An unauthorised use is being made of land

the High Court or the Circuit Court may, on the application of a Planning Authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure as appropriate:-

That the development or unauthorised use is not continued,
Insofar as practicable that the land is restored to its condition prior to commencement of the development or unauthorised use,

(2) Where any development authorised by permission granted under Part (IV) of the Principal Act has been commenced but has not been, or is not being, carried out in conformity with the permission because of non compliance with the requirements of a condition attached to the permission or for any other reason, the High Court or the Circuit Court may on the application of a Planning Authority or any other person, whether or not that person has an interest in the land, by order require any person to do or not to do, or cease to do, as the case may be anything that the Court considers necessary and specifies in the order to ensure that the development is carried out in conformity with the permission”.

1. By decision dated the 1st September, 2000 An Bord Pléanala granted to the Respondent permission for a development therein described as a gas fired combined cycle gas turbine power plant at Dungarvan County Waterford. The planning permission imposed thirteen conditions in all the following of which are relied upon by the Applicant and are relevant to this application:-

The development shall be carried out in accordance with the plans and particulars submitted with the application except as may otherwise be required in order to comply with the following conditions.

(3) Prior to commencement of development, the developers shall submit to and agree with the Planning Authority the colour and finishes of all major surfaces stacks and louvres. Sample panel shall be erected on site for agreement with the Planning Authority. All other external finishes to buildings shall be of a colour to be agreed with the Planning Authority.

(4) The construction shall be in accordance with the plans, sections and elevations submitted to Planning Authority. No additional plant flues, , openings, louvres, pipes or plant machinery shall be installed without a prior grant of planning permission. Any development which may alter the external appearance of the development shall not be exempt under Class 19 of Part I of the Second Schedule to the Local Government (Planning and Development) Regulations 1994.

(6) The site boundary shall consist of a dwarf wall 600 mm high and palasade type fencing 2.4 metres in height above dwarf wall height. Details of boundary fencing shall be submitted to the Planning Authority for agreement prior to commencement of development.

(9) The buildings known as Niro III and Niro IV shall be demolished prior to the commencement of development. The waste material generated by the demolition shall be disposed of to the satisfaction of the Planning Authority.

(10) The cooling towers shall be relocated to the western part of the site in accordance with details agreed with the Planning Authority prior to commencement of development

(11) The developer shall facilitate the Planning Authority in the archaeological appraisal of the site and in preserving and recording or otherwise protecting archaeological materials or features which may exist within the site. In this regard the developer shall:-

Notify the Planning Authority in writing at least four weeks prior to commencement of any site operation (including hydrological and geotechnical investigations) relating to the proposed development, and
employ a suitably qualified Archaeologist prior to commencement of development. The Archaeologist shall assess the site and monitor all site development works.

2. The assessment shall address the following issues:-

The nature and location of archaeological material on the site, and
The impact of the proposed development on such archaeological material.

3. Prior to commencement of development a report containing the results of the assessment shall be submitted to the Planning Authority. Arising from this assessment, the developer shall agree with the Planning authority details regarding any further archaeological requirements (including if necessary archaeological excavation) prior to commencement of construction works. In default of agreement on any of these requirements the matter shall be determined by An Bord Pléanala.

(12) The developer should pay a sum of money to the Planning Authority as a contribution towards expenditure that was and/or that is proposed to be incurred by the Planning Authority in respect of road works facilitating the proposed development. The amount of the contribution and the arrangements for payment shall be agreed between the developer and the Planning Authority or in default of agreement shall be determined by An Bord Pléanala.

4. In the case of expenditure that it is proposed to be incurred, the requirement to pay the contribution is subject to the provisions of Section 26 (2) (h) of the Local Government (Planning and Development) Act 1963 generally, and in particular, the specified period for the purposes of paragraph (h) shall be the period of seven years from the date of this order.

(13) The developer shall pay a sum of money to the Planning Authority as a contribution towards expenditure that was and/or that is proposed to be incurred by the Planning Authority in respect of the provision of a public water supply and sewerage facilities facilitating the proposed development. The amount of the contribution and the arrangement for payment shall be agreed between the developer and the Planning Authority or in default of agreement shall be determined by An Bord Pléanala.

5. In the case of expenditure that is proposed to be incurred, the requirement to pay the contribution is subject to the provisions of Section 26 (2) (h) of the Local Government (Planning and Development) Act 1963 generally, and in particular the specified period for the purposes of paragraph (h) shall be the period of seven years from the date of this order.

6. Conditions 3, 6, 9, 10, 11, 12 involve what may be described as pre- development conditions. Conditions 1 and 4 require adherence to plans and particulars lodged with the Planning Authority.

7. On the evidence before me including photographic and video evidence I am not satisfied that development has commenced other than exempted development. Development is defined in the Local Government (Planning and Development) Act 1963 Section 3 as meaning the carrying out of any works on, in, or under land. However the Local Government (Planning and Development) Regulations 1994 Second Schedule Class 45 exempts demolition and I am satisfied that the works carried out to date are works of demolition and in these circumstances what I am being asked to do is to grant what is in effect aquia timet injunction and in this I have no power to do: Mahon and Others v the Irish Rugby Football Union [1997] 3 I.R 369 .

8. There has however been non compliance with condition 11 which requires certain matters to be attended to prior to the commencement of any site operation relating to the proposed development rather than the commencement of development as in the other conditions. The Respondent is in breach of the requirement to give notice pursuant to condition 11 (a) of the works of demolition carried out to date. Notwithstanding that they are exempted development the works of demolitiion are nonetheless a site operation relating to the proposed development. I propose granting an injunction restraining the Respondent from continuing with works which constitute site operations relating to the proposed development save and except in compliance with the terms of condition 11 insofar as that is now possible that is:-

(i) Until after four weeks notice of the intention to resume such works is given to the Planning Authority,

(ii) Until after an Archaeologist has carried out an assessment of the site and a report thereof submitted to the planning authority.

9. However the Respondent shall be entitled to demolish to ground level the buildings know as Niro III, Niro IV and CHP building.

10. As to the application under Section 27 (1) and the Respondent’s obligations under conditions 1 and 4 of the planning permission in effect to comply with the plans and particulars submitted on the application, as the development has not commenced I have no power to grant an injunction. However as the effect of conditions 1 and 4 on the proposed development was fully argued I propose dealing briefly with the arguments.

The facts in Lever (Finance) Limited v Westminster Corporation [1973] All E.R. 496 bear some similarity to those in this case. They appear from the head note as follows:-

“Developers who proposed developing a piece of land by building fourteen houses on it applied for planning permission to the local planning authority attaching to the application a detailed plan of the development showing one of the houses, house G as sited 40 feet away from existing houses. Permission for development in accordance with the detailed plan was given by the planning authority on 24th March, 1969. A month later the developer’s architect made some variations to the detailed plan submitted to the authority. The variations included altering the site of house G so that it was sited only 23 feet away from the existing houses; and a further site plan showing this variation was sent to the planning authority. The authority’s planning officer who was dealing with the development had lost the file containing the original plan approved by the planning authority and because of this made a mistake and told the architect, in a conversation over the telephone, that the variation was not material and that no further planning consent was required....The developers acted on this representation and went ahead with the development in particular with the erection of house G”.

11. While in that case the Court held that the Planning Authority was a estopped by the representation of its planning officer the importance of the decision for present purposes is that it is of assistance in the approach which was taken in determining the works which are covered by a planning permission. At page 500 Lord Denning with whom Lord Justices Sachs and Megaw concurred said :-

“In my opinion a planning permission covers work which is specified in the detailed plans and any immaterial variation therein. I do not use the words “de minimis” because that would be misleading. It is obvious that, as the developer proceeds with the work there will necessarily be variations from time to time. Things may arise which were not foreseen. It should not be necessary for the developers to go back to the planning authority for every immaterial variation. The permission covers any variation which is not material”.

12. The plans lodged by the Respondent with the planning authority envisaged the retention of the CHP building and its incorporation into the development. The Integrated Pollution Control Licence obtained by the Respondent in condition 8 thereof imposed certain noise restrictions in relation to the development. I have on Affidavit and uncontroverted that the steel structure of the CHP building is of insufficient structural strength to support cladding which would enable the said condition 8 to be complied with. It was therefore necessary, if the development should proceed, that a stronger steel structure capable of supporting the cladding be provided. This replacement steel structure as to its external dimensions will correspond both as to height and floor area with that which is being demolished. The external appearance of the building will be in accordance with the planning permission condition 3 thereof. In these circumstances the course of conduct which the Respondent has undertaken is in direct consequence of the imposition of the said condition 8 in the Integrated Pollution Control Licence. It is therefore within the category of unforeseen variations mentioned by Denning M R and as such authorised by the planning permission. It is also immaterial having regard to what I have said as to its floor area, height and the fact that its external appearance will be determined in accordance with condition 3 of the planning permission and so unaffected by the variation. In short the variation in the development is within the terms of the planning permission. It is also exempted development pursuant to the Local Government (Planning and Development) Regulations 1995 Article 9 A as inserted by the Local Government (Planning and Development) Regulations 1995.

13. Further the granting of withholding of injunctive relief is a matter of discretion to be exercised in accordance with established legal principles. Even if satisfied that there had been a non compliance with the planning permission on the basis of the demolition and replacement of the steel structure I would not be disposed to grant an injunction in the circumstances of this case. The circumstances relevant to such refusal are the following:-

The variation in the context of the completed development is of trifling materiality,
The variation is necessary to satisfy the concerns of the Environmental Protection Agency reflected in condition 8 of the Integrated Pollution Control Licence,
The Respondent acted in good faith and consulted with the Planning Authority in relation to the proposed variation,
The attitude of the Planning Authority to the variation as appears from their letter exhibit AJ 8 to the Affidavit of Alistair Jessop sworn on the 21st January, 2001,
The variation will have no effect upon the Applicant and other residents of the area,
The serious consequences of delay for the Respondent .

14. Also before me is a Notice of Motion by the Applicant to join certain directors of the Respondent as parties and also a Motion seeking to sequestrate the Respondent’s assets. There is also a Motion by the Respondent to vary the interim Order made herein. I do not propose joining the directors of the Respondent as parties as any Order which I make against the Respondent can readily be enforced and if necessary by the attachment of the directors of the Respondent. The other two Motions are not now relevant. Accordingly all three Motions should be struck out with no Order as to costs.

DDMCA5(FINNEGAN)