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Cite as: [2002] IEHC 173

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THE HIGH COURT

2000 506SP

IN THE MATTER OF SECTION 5 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1963, AND

IN THE MATTER OF A REFERENCE TO AN BORD PLEANALA PURSUANT TO THE SAID SECTION

BETWEEN

ESAT DIGIFONE LIMITED

APPLICANT

AND

SOUTH DUBLIN COUNTY COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 25th day of January 2002

The Plaintiff for the purpose of its business negotiated a license with the owners of the Pines Public House on Whitehall Road in the City of Dublin in September, 1999, on foot of which in October, 1999 the Plaintiffs placed telecommunications exchange equipment within an existing storage building to the rear of the said premises and also placed two flat panels and one link dish antennae to a pole which in turn was mounted on the gable of a return building to the rear of the said premises.

The work was carried out by Esat Digifone in the belief that it was exempted development under Section 4(1 )(g) of the Local Government (Planning and Development) Act, 1963 which provides that exempted development for the purposes of the Act shall be:-

" Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures."

The South Dublin County Council Development Plan, 1998 applies to the site. The site which lies within a cluster of commercial properties is zoned LC, the objective of which is "to protect, provide for and/or improve local centre facilities".

The zoning outside the cluster of commercial properties is A1, the objective of which is ^uto protect and improve residential amenity".

The site itself is located in a small local centre within a generally residential area in the South Dublin suburbs. The public house is part of a small parade of business premises and shops facing onto Whitehall Road.

The existing public house is two stories high with a pitched roof. The adjoining premises to the north east, Glowtherm Limited, is a single-storey flat roofed structure approximately 3.5 metres high. There is a service lane to the rear of Glowtherm and the public house and beyond that there are residential properties which face onto Whitehall Park and Whitehall Close. These residential properties back on to an access laneway to the rear of the houses. There is a clear view of the antennae from this laneway but a building to the rear of the public house, which is approximately 8.5 metres high to its ridge, partially blocks the view of the rear of the pub and the dish.

The equipment and antennae in question consist of:-

(a) Telecommunicational equipment which occupies an area within a 6 M² store to the rear of the premises.

(b) Two flat-panel GSM antennae which are attached to a pole which in turn is mounted on the gable of a return building to the rear of the pub. The ridge of the return building is approximately 450 mm below the ridge of the main public house building which fronts onto Whitehall Road. The bottom of the two antennae are approximately 600 mm above the ridge of the return. These antennae can be seen from Whitehall Road when one approaches the pub from the north-east direction. They can also be seen from Whitehall Park and from the rear gardens of the houses facing onto Whitehall Park and Whitehall Close.

(c) A 600 mm diameter dish. This is located at eaves level on the gable of the return and is only visible from the rear of the building.

A number of local residents objected to the development, following which South Dublin County Council by letter dated 22nd October, 1999 advised Esat Digifone that in its opinion the works were not exempted and consequently they would have to be removed unless planning permission was granted for them.

On the 19th July, 2000, the Applicants applied for retention in respect of the antennae and equipment, but permission was refused. This refusal was the subject matter of an appeal by the Applicant to An Bord Pleanala which, however, was later withdrawn.

The Plaintiff instead opted to pursue a reference under Section 5 of the Local Government (Planning and Development) Act, 1963 which provides:-

"(1) if any question arises as to what, in any particular case, is or is not development or exempted development, the question shall be referred to and decided by An Bord Pleandla.

(2) where a decision is given under this Section, an appeal to the High Court from the decision may be taken at any time within the period of three months after the giving of the decision or such longer period as the High Court may in any particular case allow."

The format of the questions submitted under Section 5 was as follows:-

(a) Whether the placing of antennae for a GSM base station at the rear of an existing two-storey premises, the Pines Public House, Whitehall Road, Perrystown, Dublin is exempted development under Section 4(l)(g) of the Local Government (Planning and Development) Act, 1963.

(b) Whether the placing of telecommunication exchange equipment within an existing storage building at the rear of the Pines Public House, Whitehall Road, Perrystown, Dublin is exempted development under Section 4(1 )(g) of the Local Government (Planning and Development) Act, 1963. However, the questions as submitted were reformulated by the Board to be answered in the following way:-

"Whether the placing of antennae for GSM Base Station at the rear of an existing two storey premises at the Pines Public House, Whitehall Road, is or is not exempted development and whether the placing of telecommunication's exchange equipment within an existing storage building at the rear of the Pines Public House, Whitehall Road, Perrystown is or is not exempted development."

Mr. Niall McDonnell was the relevant Planning Inspector who inspected the site on the 2nd June, 2000 and who took photographs and prepared a report dated 13th June, 2000.

He concluded that both the erection of the antennae and the installation of the equipment within the existing storage building constituted "works", and that consequently, "development* for the purposes as defined in the Act had been carried out.

In relation to the base station, he reported that such a service did not exist on the site before and could not, in his view, be considered to be ancillary to the existing public house use on the site. He therefore concluded that a change of use had taken place. However, for the reasons set out in his report, he concluded that the change of use could not be considered to be a material change of use.

Turning then to the question of exemption under Section 4(1)(g), he concluded that the works in question were not for any "maintenance" of any structure, nor did they constitute an "improvement" or "alteration" to the structure as such. In his view they were merely "additions" which did not relate to the existing structure.

In relation to the exchange equipment, he noted that class 29(e) of the second schedule (part 1) of the Local Government (Planning and Development) Regulations, 1994 allowed for an exemption for "permanent telecommunications exchange and radio station containers" subject to conditions which had not been complied with in the instant case.

He therefore concluded that the placing of antennae for GSM Base Station at the rear of the premises was not exempted development and the placing of telecommunications exchange equipment within the existing storage building at the rare of the Pines Public House was not exempted development either.

By its decision dated the 15th June, 2000, An Bord Pleanala determined the reference under Section 5 of the Act in the following manner:-

"And where as An Bord Pleanala, in considering this reference, had regard particularly to –

(a) Sections 2, 3 and 4 of the Local Government (Planning and Development) Act, 1963

(b) Articles 9 and 10 of the Local Government (Planning and Development) Regulations, 1994 and

(c) The Local Government (Planning and Development) Regulations, 1997AND WHEREAS An Bord Pleanala has concluded that - (i) the placing of the antennae on the site to facilitate mobile telephony constitutes works which come within the meaning of "development" in Section 3(1) of the 1963 Act

(ii) taken together with the placing of the said antennae, the placing of the telecommunications exchange equipment constitutes a material change in the use of the land which also comes within the meaning of "development", and

(iii) the works involved in the change of use of the land do not come within the scope of Section 4(l)(g) of the 1963 Act, or any provision of the regulations made thereunder.

NOW THEREFORE An Bord Pleandla in exercise of the powers conferred on it by Section 5 of the 1963 Act, hereby decides that the placing of(i) the said antennae for a GSM Base Station and (ii) the said telecommunications exchange equipment within an existing storage building is not exempted development"

On the hearing of the appeal under Section 5 before this Court, two preliminary points arose for consideration.

Firstly, Mr Galligan on behalf of the Applicant, contends that An Bord Pleandla are only entitled when making a decision under Section 5 to do so in relation to the question actually submitted. The Board is not, he submits, entitled to reformulate the question in the way that had occurred in the instant case whereby the Board enlarged the issues to be considered so as to take into account any possible "material change of use" over and above the question submitted in relation to a possible exemption under Section 4(1 )(g) of the 1963 Act.

In reply Mr Butler argued, in my view correctly, that the function of the Section is to clarify whether particular works or users constituted development or exempted development, so that the Board could not be confined in some artificial way. He further submitted again, I think correctly, that there could be no question of any prejudice or unfairness to the Applicants given that the issue of"material change of use" had been fully ventilated in submissions and in the reasoning of the Planning Inspector.

The second point concerns the scope of this undefined appeal under Section 5. Is the hearing before the High Court to be a "de novo " hearing on the merits, or, given that this is an appeal from an expert body, is it to be a more restricted sort of appeal provided for in Orange Ltd v Director of Telecoms (No. 2) [2000] 41.R 159, which essentially provides that the Court should only set aside a decision of an expert Tribunal if satisfied it has been vitiated by a serious and significant error.

Mr. Galligan submits that in all cases to date under Section 5, a full "de novo " hearing had been permitted. In this regard he cited Carrick Hall Holdings v Dublin Corporation (1983) I.L.R.M. 268 and Rehabilitation Institute v Dublin Corporation (High Court, unreported, Barron J. 14th January 1988) as instances where that had occurred. Mr. Galligan submitted that in making decisions under Section 5, An Bord Pleanala was not exercising any role other than a "fact-finding role" subject to the application of legal standards prescribed by the Act. It was not deploying planning expertise as it would when making a decision on foot of a planning application, where policy considerations drawing on the expertise of the Bord would come into play. Furthermore, the High Court already exercised such jurisdiction on a regular basis in deciding issues under Section 27, so that there was no requirement for the exercise of "curial deference" in the context of a Section 5 hearing.

The picture however seems to me more complicated in the instant case. Certain elements in the decision of An Bord Pleanala arguably consist of nothing more than fact finding subject to the application of statutory words and phrases properly interpreted, as is undoubtedly the case where the Board considers the application of Section 4(1 )(g). However, insofar as the Board is considering "material change of use", the word "material" can only mean "material for planning purposes" (see Galligan: Irish Planning Law and Procedure 1997, p.60) where the author states:-

"The consideration to be taken into account in determining materiality must at least be relevant to 'proper planning and development and the preservation of amenities' which are the twin objectives of the preamble to the legislation.

The question is whether there were sufficient planning considerations raised by the change in activity to justify its submission to development control."

On this latter aspect, at least, it seems to me that the Board in making its decision does draw on its planning expertise, in much the same way as the Council would have done in refusing retention permission in this case, where its stated reasons set out the relevant planning considerations.

As Barron J. stated in Galway County Council v. Lackagh Rock [1985] I.R.120 at 127:

"To test whether or not the uses are materially different, it seems to me, that what should be looked at are the matters which the planning authority would take into account in the event of a planning application being made either for the use on the appointed day or for the present use."

However, can the High Court in an appeal of this nature apply one standard of review to certain elements of the Board's decision and different standards to another?

Attracted as I am by the concept of extending curial deference to the deliberations and decisions of expert bodies, it strikes me as a recipe for confusion to attempt in this hearing to evaluate the issues in such a piecemeal fashion, particularly when the Board in its decision does not set out the reasons for arriving at its conclusions, even where some of those findings are at variance with the views of the Planning Inspector. I therefore will refrain from finding on the facts of this particular case that the appeal under Section 5 should be approached or determined by the High Court other than as heretofore, despite the clear alteration in the legal landscape brought about by the decision in the Orange case.

Returning to the appeal issues, the decision of An Bord Pleanala conflates the concepts of "works" and "use", two concepts which Mr. Galligan submits are mutually exclusive by reason of their statutory definition.

"Works" are defined at s.2 of the 1963 Act as including:

"Any Act or operation of construction, excavation, demolition, extension, alteration, repair or renewal "

In relation to land, "use", as defined in the same section, "does not include the use of the land by the carrying out of any works thereon". "Land" includes any structure and "structure" means "any building, erection, structure, excavation or other thing constructed, erected, or made on, in, or under any land".

Can activities, which both sides agree constitute "works" also constitute "material change of use" having regard to the definition of "use " in the Act? Mr. Galligan relied on the decision In Re Viscount Securities Limited 112 I.L.T.R. 17 as an authority for the proposition that the two concepts are mutually exclusive. In that case, it was held by the High Court (Finlay P. as he then was) that a developer who was carrying out an extensive residential development on agricultural land in County Dublin was not deprived of his right to compensation in respect of the refusal on the ground that the development constituted a material change in the use of the land. (Under the Compensation Provisions of the 1963 Act, compensation is payable in respect of such a refusal, save where it is based on specific grounds (such as interference with amenity) or where the development would constitute "a material change in the use" of the land). In a passage relied upon by Mr. Galligan, Finlay P. stated:-

"Broadly speaking, it seems to me possible to elucidate in particular from the provisions of Section 3 of the Act, which defines development, and from the general provisions of the Act, two broad categories of development. One consists of works in the sense as defined of building, demolition, extension, alteration, repair or renewal and the second category being a change of user excluding such change as emanates from the Act of building, demolition, extension, alteration or repair."

However, any doubts on this point were resolved by the Supreme Court in Kildare County Council v. Goode and Others (unreported Keane J. Supreme Court the 18th May, 1998) where the Court found that the extraction of sand or gravel from land was both a "use development and "a works development.

In his judgment Keane J. (as he then was) noted the reservations which Finlay P. had included in his observations in Viscount when stating (at p.6)>

"However, the learned President went on to point out that these two categories were 'not necessarily always exclusive and sometimes inevitably overlapping'. It should also be remembered that the case was concerned with an entirely different subject i.e. the right of a developer rejused permission on admittingly compensatable grounds to be paid such compensation and the need to adopt a strict and, from one point view, somewhat artificial construction of the relevant provisions so as to avoid a conflict with the private property provisions of the Constitution".

At an earlier point in his judgment, Keane J. provided an example to illustrate the reason for the peculiar definition of "we" in the Act:-

"The reason for the latter provision can be made clear by an example. In ordinary parlance putting up a building on farm land hitherto used for growing crops would be treated as changing the use of the land Since, however, the construction of farm buildings is, to some extent, an exempted development, the draftsman found it necessary to provide that the carrying out of works on land, bv itself and of itself, was not a use of land for the purposes of the 1963 Act." (Emphasis added).

In other words, the works of themselves, and without more, cannot be treated as a change of use so as to deprive a developer of an exemption to which, as works alone, the developer would be entitled.

As Finlay C.J. stated in Cairnduffv. O 'Cornell [1986] I.R. 74, at p. 78

"The scheme of the statute, however, appears clearly to me to be that work by way of construction or alteration and a change of user are separately dealt with. Therefore, to construe the section as to permit on unbuilt land the carrying out of works which are exempted development but are for the purpose of adapting that land for a clear change of user and to prohibit the carrying out of works within the same category on a structure would, in my view, be to create a meaningless anomaly. lam, therefore, satisfied that the carrying out of these works does not of itself .within the meaning of the section, constitute a change of user." (Emphasis added)

Mr. Galligan submits in the instant case that the placing of telecommunications equipment within the store room to the rear of the licensed premises was works consisting of a "once-off" operation. The necessary implication of this submission would be that if he is correct, and the works qualify under Section 4(l)(g), he cannot then lose his exemption by any determination that a material change of use has taken place.

However, in my view there is a great deal more involved in the activity in question, because it not only involves the placing of equipment but the provision of a service on an ongoing basis, this latter function being the primary purpose of the activity. I am satisfied therefore that An Bord Pleanala were entitled to approach the case in the manner in which it did, namely, to consider whether a development consisting of either works or material change of use or both had taken place.

I now come to consider whether the activities in question constitute development or exempted development.

"Development' is defined at Section 3 of the Act as:-

"The carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land"

The Applicant obviously accepts that a ''works development" has taken place both in respect of the antennae and equipment given that exemption is sought in respect of both under Section 4(1 )(g). In its decision An Bord Pleanala seems also to accept that the placing of the antennae constitute "wor&s" and I would not demur from that conclusion. Taken in isolation those works would in my view constitute an "alteration of... structure being works... which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures".

While "alteration" is defined as including plastering or painting, that definition is obviously not exhaustive. Further the exemption under 4(l)(g) extends to any alteration which includes an alteration affecting the external appearance of the structure, and is thus not, in my view, confined to alterations of the structure itself. Having looked at the photographs and considered all the documentation, I do not feel that the erection of the antennae per se is such to materially affect the external appearance of this particular structure so as to render it inconsistent with the character of the structure or of neighbouring structures. Taken in isolation, these works would qualify for exemption under s. 4(1 )(g) in my view.

However, as conceded by Mr. Galiigan, such a finding is of no value to him in isolation, given that he also requires a finding in his favour in relation to the telecommunications equipment, which I have already described as the primary activity to which the erection of antennae and dish is merely incidental.

Insofar as the placing of telecommunications equipment is concerned, I cannot see how, insofar as the same maybe described as works, it can be seen as going to either the "maintenance, improvement or other alteration of any structure" so as to qualify for exemption under s. 4(l)(g). It seems to me that the activity associated with the placing and utilisation of the telecommunication equipment falls to be considered more properly as a change of use, whether taken together with the placing of the antennae or by itself.

The question finally becomes therefore one as to whether a "material change of use" has taken place by the activities in question at this location, having regard to the activities previously carried on there. Mr Galiigan submits that no "materiaV change of use has occurred.

Mr. Butler on behalf of the respondent points out that Class 29(e) of the Local Government (Planning and Development) Regulations, 1994 provides for an exemption for permanent telecommunications exchange and radio station containers. The dimensions of the former store and equipment would qualify for exemption within this class, subject to compliance with condition 2 in the column to the schedule which requires the written consent of the owners and occupiers of adjacent premises whose curtilages are within ten metres of the base station. This condition had not been complied with. However, the existence of the exemption showed in the clearest possible way, he submits, that such a user was development within the terms of the Act. Further, the new use is completely unrelated to the previous use and is a separate stand-alone activity.

Mr. Galligan, not surprisingly, adopted the reasoning of the planning inspector who had concluded that a change of use had taken place, but was not a material change of use. He felt that the change of use would not have a significant increase in terms of traffic, noise, fumes or effluent emissions. He also noted that the base station would be operated under licence which would have to comply with the International Radiation Protection Association Guidelines. He had concluded that health considerations would not render the development to be a material change of use. It seems to me that some, at least, of these considerations relate more to nuisance than planning and as such are amenable to the general law.

In deciding this appeal it should be said that the subdivision of the planning unit does not of itself give rise to a material change of use in the absence of some severance between the primary use and the new use. However, Mr. Galligan points out in Irish Planning Law at p. 72:-

"A material change of use may occur where the sub-division of the planning unit results in the ancillary link between a primary and ancillary use being severed in such circumstances the ancillary use becomes an independent use in its own right. The change to this use from the former "parasitic" use may be material in planning terms. "

In Dublin Corporation v. Regan Advertising Limited [1986] I.R. 171, *' functional separation" emerged as the dominant factor in determining if a material change of use had taken place. In a case where there had been a change of use of the facade of a building from that of displaying the owners name to instead displaying advertisements which had no connection with the business being carried on, Blayney J. held that there had been a change of use of the facade, and in considering whether this change of use was material he stated:-

"Is this change a material one? In my opinion it is, since it involves a portion of the premises being used for a new and separate business. In this connection it seems to me that the facade of the premises must be looked upon as a separate planning unit. In Bur die and Another v. Secretary of State for the Environment (1972) I W.L.R. 1207 a decision of the Court of Appeal in England Bridge J. said in the course of his judgment at p. 1213, that:-

'lt may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally'

In my opinion the facade has become the site of activities, namely, the display of commercial advertisements, which amount to a separate use both physically and functionally from the remainder of the premises. And if one regards the facade as the planning unit, I think there is no doubt as to the change in its use being a material one. "

There can be no doubt in the instant case that there has been a change in the character of the use. It is not ancillary or complementary in any way to the primary use of the premises for the purposes of the licensed business. It is a completely new user and function.

The fact that the Department of Environment has issued specific guidelines for planning authorities in relation to telecommunications antennae and equipment does highlight the importance and significance which planning authorities do attach to developments of this nature. I accept Mr. Butler's contention that the exemption provision for telecommunications equipment contained in the 1994 Regulations clearly indicates that when the use of premises, or portion of the premises, changes from a previous unrelated use to the present one it can logically be seen as a "material change of use" if it is seen as a 'development' in the Regulations.

I have also had some regard to the reasons offered by South Dublin County Council for refusing retention permission in the notification of decision dated 15th September, 2000 which said reasons are set out at par. 12 of the affidavit of James McInerney, Planning Inspector, sworn on behalf of the respondents. While relevant, these considerations cannot however be regarded as determinative though persuasive. For example, the visual impact considerations identified under Section 4.3 of the guidelines for Planning Authorities 1996 in relation to telecommunications antennae as issued by the Department of the Environment do not strike me as particularly pertinent in view of the findings I have made about the limited visual impact of the antennae on the streetscape in the location under consideration. In any event, in an appeal of this nature, the question of materiality is at the end of the day one to be determined by the Court as a matter of fact and the views of the Planning Authority on the matter are simply matters to be taken into account (see Monaghan County Council v. Brogan (1987) I.R. 33). For the same reason, I accept Mr. Butler's submissions that each case turns on its own particular facts and the so called "comparator" cases are of little or no assistance other than to indicate the kind of considerations which planning authorities regard as relevant.

For the reasons already outlined, therefore, I conclude that An BordPleanala correctly decided the reference under Section 5 and that a material change of use has taken place.