High Court of Ireland Decisions

Attached to this permission were nine conditions which were set forth in the first schedule thereto. Conditions nos. 1, 7 and 8 are relevant to this application. These said conditions read as follows:-

"1. Before the proposed development is occupied the developer shall agree with the Council and shall provide a suitable method and location for the treatment and disposal of the effluents to which the development is likely to give rise.

7. The development shall not be occupied until appropriate means of management of wastes arising from the development shall be agreed with the Council.

8. Adequate water supply shall be provided for fire fighting. Water main shall be extended, and relocated where necessary, in such a manner as to form a ring main. Hydrants shall be located on north, south and west elevation and where practicable on eastern elevation. Hydrant system shall comply with the requirements of BS 5306, Part I 1976. Hydrants shall be underground fire hydrants, screw down type, as per BS 750 1989, and shall be conspicuously marked in accordance with BS 3251 1976. Details of same shall be agreed with the Council before development commences."

"1. An order prohibiting the occupation of the extension to the main terminal building at Shannon Airport in the town land of Rinenna South, Shannon Airport, Co. Clare pending compliance with the conditions of planning permission register reference no. P97/1277,

2. An order requiring the respondents to comply with conditions 1, 7 and 8 of planning permission register reference no. P97/1277 within such period as this honourable court shall direct,

3. An order declaring that the use of the main terminal building at Shannon Airport in the town land on Rinenna South, Shannon, Co. Clare, constitutes an unauthorised development in the absence of compliance with the conditions of planning permission 97/1277,

4. An order prohibiting the respondent from discharging waste into the Shannon Estuary pending the provision of a satisfactory effluent treatment system for the treatment of such waste."

Subsequent to the service of this motion, the planning authority by letter dated 25^th March, 2003, confirmed that condition no. 8 had by that date been complied with. Therefore this case is now concerned only with conditions nos. 1 and 7.

Condition no. 1 in my view is incapable of the interpretation suggested by Aer Rianta. In my opinion it means that whilst the development can be proceeded with, constructed and completed, nevertheless the building in question cannot be occupied until such time as not only is there an agreement between the respondent and the council as to the treatment and disposal of effluents, but also until such time as there is in existence at a specified location a functional and operational method to dispose of the waste which the development gives rise. This interpretation is fully consistent with and is complemented by condition no. 7, which again prohibits occupation until agreement is reached on the appropriate means of managing all waste which arises form this development. Therefore I have no hesitation in concluding that, for due compliance with condition no. 1, the building as constructed under this planning permission should not have been occupied until a suitable and proper method for both the treatment and disposal of effluents had been put in place by the respondent company.

"Whilst it is anticipated that Clare Co. Co. will take over the water and waste water services in Shannon, this has not yet happened. The inclusion of Shannon Town Sewerage Scheme in the water services investment programme recently announced by the Minister for Government and Local Government provides reasonable grounds for optimism that the takeover may occur fairly quickly. In the meantime we are at present examining the report prepared by your consulting engineers..."

"EPA inspectors carried out an inspection at the Shannon Airport site on 17^th April, 2002…in particular was noted that there were discharges of oil contaminated surface water, and discharges of untreated sewage to waters. The volume of sewage effluent being discharged has been estimated at approximately 300 cubic metres per day…it is clear from the EPA investigation that there are a number of unregulated discharges of run off and effluent from the Shannon Airport site. These discharges include significant volumes of untreated sewage effluent as well as significant volumes of contaminated surface water."

It suggests that consideration should be given to the provision of treatment for all effluents either by a connection to Shannon Development treatment facility or by the construction of an on-site effluent treatment plant. It concludes that the aforesaid discharges are unauthorised and require a licence under the Local Government (Water Pollution) Acts, 1977 and 1990. Finally, the report also records the view of Clare County Council that no deterioration in water quality in the estuary has taken place which view is based upon the (then) recent EPA water quality reports.

Mr. Michael O'Donnell B.L., who appeared on behalf of the applicant, suggested that the first task of this court is to decide whether or not there has been a breach of conditions nos. 1 and 7 of the aforesaid planning permission. If there has been, then

this court should follow what was said by Henchy J. in Morris v. Garvey [1982] I.L.R.M. 177 at 180. He also relied upon O'Connor and Spollen Concrete Group Limited v. Frank Harrington Ltd. and Others, High Court, Unreported, Barr J., 28^th May, 1987. In his view the lack of proximity of the applicant's address to the site in question is irrelevant given the clear meaning of s. 160 (1) of the 2000 Act. Once a breach has been established then in his submission there was a duty upon this court to enforce the planning permission and not to allow this non-conformity to continue.

"160.—(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, 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, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.

(2) …

(3)  ….

(4)   ….

(5)   ….

(6) (a)   An application to the High Court or Circuit Court for an order under this section shall not be made—

(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or

(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40) or, as the case may be, of the appropriate period as extended under section 42.

(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.

(7) …."

"When section 27 (2) is invoked, the court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations, and in carrying out that function it must balance the duty and benefit of the developer under the permission as granted against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order for attachment for contempt in default of compliance) as is 'necessary to ensure that the development is carried out in conformity with the provision'. An order merely restraining the developer from proceeding with the unpermitted work would not alone fail to achieve that aim but would often make matters worse by producing a part completed structure which would be offensive to the eye as well as having the effect of devaluing neighbouring property."

"This court has judicial notice, from what it has known to have happened in other cases, that developers who have contravened the conditions of the developmental permission, have for motives which may be put down to expediency, avarice, thoughtlessness or disregard of the rights or amenities of neighbours or of the public generally, knowingly proceeded with unauthorised development at such a speed and to such an extent as they hoped would enable them to submit successfully that the court's discretion should not be exercised against them under section 27 (2), on the ground that the undoing of the work done would cause them undue expense or trouble. For my part I would wish to make it clear that such conduct is not a good reason for not making an order requiring work carried out in such circumstances to be pulled down."

In this case there is no question of the respondent company being guilty of the type of conduct impugned in Morris v. Garvey or of operating the airport with the same or similar motives or intentions as formed the basis of such conduct.

"it seems to me all the more important that the High Court should have such a wide discretion because of another innovation introduced by this section. The section allows an application for an injunction to be made, not only by the planning authority, but also by a private citizen, 'whether or not the person has an interest in the land'. The section therefore makes each citizen a watchdog for the public. Presumably the purpose of this position is to guard against the kind of case … where the Planning Authority may have not been as vigilant in the protection of the public's interest as it should have been. But, it seems to me, that if a person who is not the planning authority and who has no interest in the lands can apply for an injunction under section 27 then it is all the more important that the High Court should have a wide discretion on the question of whether or not to issue an injunction. It appears to me that the Oireachtas could not have intended that the High Court should have no discretion but to issue an injunction when the plaintiff has no interest in the lands and the breach of the planning law on the part of the defendant has been innocent or technical and can be put right by an application for planning permission.

The matter, however, appears to me to go further than this. In the normal case, a court of equity, in deciding whether or not to issue an injunction, would be primarily concerned with the position as between the parties to the litigation. But it appears to me that if a private citizen comes forward under s. 27 as a watchdog of the public that the court, in exercising its discretion, is entitled to look not only at the convenience of the parties but at the convenience of the public. Here it appears to me that the Oireachtas could hardly have intended that the High Court would be obliged on the application of a private citizen with no interest in the lands automatically to close down, e.g., an important factory, because of some technical breach of the planning law irrespective of the incovenience (sic) to workers and the public generally."

See also p. 14 of the judgment of Mr. Justice Barr in Spollen Concrete, High Court, Unreported, Barr J., 28^th May, 1987.

"I am satisfied that both orders made by the learned trial judge were properly made in the exercise of his discretion. The Court has a very wide discretion under s. 27. It is admirably expressed by Barrington J. in his judgment in Avenue Properties Ltd., v. Farrell Homes Ltd. [1982] I.L.R.M. 21 at p. 26:

'However, so far as the High Court is concerned the Order is discretionary. The term "injunction" is not used in section 27 but it is clear that the Order contemplated by the section is an order in the nature of an injunction whether restraining or mandatory. The reference to 'interim' and 'interlocutory' orders in section 27(3) appears to reinforce this interpretation. It seems to me therefore that the High Court in exercising its discretion under section 27 should be influenced, in some measure, by the factors which would influence a court of equity in deciding to grant or withhold an injunction.

At the same time, the jurisdiction under section 27 is peculiar in that the applicant need have no interest in the land the subject matter of the application and, it would appear, need have suffered no damage beyond such damage as all citizens suffer when the Planning Act is broken and public amenities impaired. From the foregoing it would appear that applicants under section 27 could range from a crank or busybody with no interest in the matter at one end of the scale to, on the other end of the scale, persons who have suffered real damage through the unauthorised development or who, though they have suffered no damage peculiar to themselves, bring to the attention of the Court outrageous breaches of the Planning Act which ought to be restrained in the public interest. In these circumstances it appears to me all the more important that the Court shall have a wide discretion as to when it should and when it should not intervene.' "

Blayney J. then went on to deal with a submission that this discretion should be exercised in one way only. He said:

"Counsel for the appellant contended that the Court was bound to exercise its discretion in a particular way, namely, in order to ensure compliance with the Planning Acts and accordingly an injunction ought to have been granted stopping the development until all the conditions which were to be performed before development commenced had been complied with. Counsel did not, however, refer the Court to any authority which supported this restriction on the exercise of the Court's discretion and I am satisfied that it would be wholly inconsistent with the wider discretion given to the Court under s. 27."

See also Grimes v. Punchestown Development Co. Ltd and Anor. [2002] I.L.R.M. 409.

"The respondent's third preliminary submission was that the remedy under section 27 is a statutory injunction which is distinct from the general equitable jurisdiction of the High Court and that the learned High Court Judge had no jurisdiction to expand the statute by invoking the courts' equitable jurisdiction. I am satisfied that this is correct. Section 27 provides a precise statutory remedy. In making an order under that section, the court cannot exceed the jurisdiction conferred by that section. It is a clear and comprehensive code which should be construed strictly. The court has a discretion to exercise in a s. 27 application but that is within the ambit of the section and is not to extend the jurisdiction. The learned High Court Judge fell into error in construing the section so as to empower the court "…to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts."

Once so understood this passage in my respectful view means that the discretion above mentioned remains unaltered but of course can only be exercised when the relief sought is otherwise within the limits of the section. Therefore I am of the view that the principles set forth in Stafford v. Roadstone [1980] I.L.R.M. 1 and O'Connor and Anor v. Frank Harrington Ltd., High Court, unreported, 28^th May, 1987, remain good law to this day, and that the reference to "exceptional circumstances" by Henchy J. in Morris v. Garvey, [1982] I.L.R.M. 177 must be understood and applied against the background of this discretion.

(a) the conduct, position and personal circumstances of the applicant,

(b) the question of delay and acquiescence,

(c) the conduct, position and personal circumstances of the respondent,

(d) the public interest; to include:

(i) as part of that interest the business, commercial and tourist activities conducted at the airport and in the wider general area and

(ii) as members of the public those who derive any employment benefit, either directly or indirectly, from the airport's overall operation as well as persons in the wider community and those who avail of or utilise the respondent's facilities.

So, notwithstanding his right to bring these proceedings, his position is far distant from many other applicants in s. 160 proceedings, where the development or use complained of has had a direct and immediate impact on them.

In addition, apart from a warning letter dated the 13^th day of February, 2003, no other enforcement proceedings have been taken under the Planning Acts by the Planning Authority, Dúchas, An Taisce or other similar body.

All parties to these negotiations were genuine in their belief that a resolution could be found. The county council was most anxious to take over the facilities existing at Shannon town, and I am satisfied that, once such a transfer had been completed, the council had assured Aer Rianta that it could link into the system and thus in this way to solve the problem at the airport. In the belief that this solution was achievable the respondent deferred the implementation of its own preferred scheme. However by the summer of 2002 it became clear that agreement between the county council and Shannon Development was not imminent and that in any event there was now a major capacity problem. Therefore what the council was seeking to achieve was not now feasible. Aer Rianta then made a decision to provide for a stand-alone facility; as previously stated, this is the solution which currently is being pursued through the required regulatory bodies.

Nor is it like Westport UDC v. Golden and Ors. [2002] 1 I.L.R.M. 439 where Morris P. dealt with two alleged breaches of the planning acts. In the first instance he was satisfied that the respondent deliberately set out to disregard planning procedures and constructed a roof, knowing "full well" that the same would constitute an unauthorised development. He affirmed without a stay an order of the Circuit Court in respect of that development. However, when dealing with the second alleged breach, namely the stripping out of an old restaurant, take away and cooking area and in its place the installation of a Supermac facility, the learned judge adopted a more lenient position. At p. 450 of the report he said

"While I believe that the respondents have carried out this work in the full knowledge of the fact that there was at the very least a grave danger that they were in contravention of the planning laws and have ignored the applicant's suggestions that there should be consultation, I nevertheless believe that it is in the interests of all parties that there should be a stay put on this order to enable the respondents to bring such application as they may be advised to regularise their position."

He accordingly granted a period of three months for this purpose.

The public interest in this regard includes those who are directly or indirectly dependent on employment from the development or use under consideration and also extends to commercial, business and economic consideration. In Dublin County Council v. Sellwood [1981] I.L.R.M. 23 Gannon J. held that while there was a development in existence without the prescribed planning permission, this was due to a bona fide belief that such permission was not required. In exercising his discretion as to what order to make in the light of this unauthorised development, the learned judge noted that "an order of the nature sought would have very damaging consequences for the respondents and for those in their employment and to those for whom they are bound in contracts." See also White v. McInerney Construction Ltd. [1995] 1 I.L.R.M. 374, Mahon v. Butler [1998] 1 I.L.R.M. 284 and Glenroe Estates Management Company Ltd. v. IGR, High Court, Unreported 18^th March, 1994.

Apart from economic consequences there are other issues of a public nature which may also have a relevance when considering this question of discretion. These could include the potential impact of a development, for example in an area of high amenity due to its ecological importance or its scientific interest or which had a value as a site of conservation for certain species of flora and fauna. The position of such a site in the relevant county development plan may also be of importance. See for example Irish Wildbaord Conservatory v. Clonakilty Golf and County Club, High Court, Unreported, 23^rd July, 1996.

It would I believe be unhelpful, unnecessary and in any event probably impossible to identify what public interest considerations one must take into account in this area of the law. It seems to me that in general any element or feature of public interest which arises from the particular circumstances before the court are elements or features which the court can take cognisance of when exercising its discretion under s. 160.

"Apart from those considerations, I would consider it unjust and inequitable that an order should be made in circumstances such as the present where, if anybody is to blame, it is the person who misled the planning authority at the stage of the application for planning permission or who thereafter simply converted to housing the seven units in defiance of the planning permission. It is not necessary to express any view as to what happened in relation to that matter as I have no evidence in relation to it. In any event, the then owner of the premises and the applicant for planning permission is not a party to these proceedings. It would be manifestly unjust to have the draconian machinery of the section brought into force against a person who behaved in good faith throughout."

In this case, in my view, Aer Rianta must have known on receipt of the planning permission and certainly as of March 2000, what the correct meaning of conditions nos. 1 and 7 was and that in occupying the extension it was acting in breach of the planning permission so granted to it. If it was dissatisfied with either condition or felt that it could not meet the requirements thereof then it should have appealed to An Bord Pleanála or sought a new planning permission or otherwise should have taken steps to avoid its resulting non-compliance. It would I believe be unthinkable that the company did not have available to it experts in every area of discipline relevant to the issues in this case. It must have consulted both lawyers and planners and if it did not do so, one can only conclude that in its view the meaning of both conditions nos. 1 and 7 was clear, precise and definite. And yet, though not for an improper motive, it has operated in breach of these conditions now for more than three years.

However, it is also the situation that I must take into account the individual circumstances of each case and to those apply the law as I see it. Otherwise the value which one is espousing, namely equality, would paradoxically be unattainable.

This, however, is subject to the following. In the EPA report, referred to at paragraph 16 above, it is said that the quality of the receiving water had not deteriorated. That in my view is an extremely important factor and has had quite an influence on the conclusion which I have reached. That being so, I propose to grant liberty to the applicant to re-apply if that situation should adversely change.