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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Weston -v- An Bord Pleanala [2008] IEHC 71 (14 March 2008)
URL: http://www.bailii.org/ie/cases/IEHC/2008/H71.html
Cite as: [2008] IEHC 71, [2008] 2 ILRM 542
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Judgment Title: Weston -v- An Bord Pleanala Composition of Court: Mac Menamin J. Judgment by: Mac Menamin J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 71 THE HIGH COURT JUDICIAL REVIEW 2006 No. 198 J.R. IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)BETWEEN/ WESTON APPLICANT AND AN BORD PLEANÁLA RESPONDENT SOUTH DUBLIN COUNTY COUNCIL AND COMBINED ACTION ON WESTON AERODROME NOTICE PARTY Judgment of Mr. Justice John MacMenamin dated the 14th day of March, 2008.1. The applicant is a registered company with unlimited liability. It has its registered office at Weston Aerodrome, Leixlip, County Dublin. It is the owner and operator of a licensed aerodrome there. Background 2. In these proceedings the applicant (‘Weston’) seeks to challenge an imposition by An Bord Pleanála (‘the Board’) of a condition imposed on a decision to grant planning permission. Weston alleges that the condition which has been imposed is unlawful and seeks orders removing such condition from the grant of planning permission. 3. On or about 5th May, 2005 Weston made a planning application to South Dublin County Council (‘the County Council’) for a retention in respect of the following development: revision, alteration and retention to approved office/clubhouse, hangar and car park at Weston Aerodrome, Lucan, County Dublin. 4. The development in respect of which retention planning permission was sought consisted in what is described as a “non-airside” development. Its purpose was to allow air traffic controllers in the control tower sited on top of the “clubhouse” to have a full view of the runway and taxiways. The project consisted in (a) a relocation of the control tower from a central position on the roof of the office/clubhouse to the front elevation of that building, with reduced size of the display and visual part of the control tower, and a slight increase in height; (b) a consequential relocation and retention of navigational aid equipment from the control tower to two storage areas internally under the control tower, to be achieved by lowering the ceiling height of the first floor by 1.945 metres; (c) the relocation and retention of a lift shaft internally, thereby avoiding direct entry to the control tower; the height of the lift shaft to be increased by 1.45 metres; (d) the incorporation of necessary security arrangements by change of user of the ground floor by the provision of office accommodation and reception at ground floor, a slight increase in the bar area, and a reduction in office space at first floor; (e) the proposed use of unroofed areas behind the perimeter parapet walling for air handling units and ventilation equipment; (f) the retention of folding doors at the rear of a hangar. 5. In Weston’s grounding affidavit, Mr James Mansfield, one of the directors of the company, states that the retention, revision and alteration was necessitated so as to ensure a clear view from the control tower; to ensure that the lift did not terminate at the control tower itself (a security consideration); and (with reference to the hangar) the retention of folding doors at the rear and its division into three units so as to reduce the fire risk to aircraft placed there. Consequently, a car park at the rear of the hangar was to be relocated and an apron provided. 6. In response to the application on 29th June, 2005 the County Council as planning authority, issued a notification of a decision to grant permission and retention for the development subject to a number of specified conditions, the reasons for which were set out in a schedule. Weston took no exception to three conditions or to the reasons which are set out therefor. They are material only by way of context, and possible contrast with that impugned. 7. Each such condition was justified by an attendant and specified reason; respectively, to ensure that the development was in accordance with the permission, in the interests of public health and the assurance of adequate draining. The meaning and effect of all those stated reasons were, in their context, entirely clear. However, Weston claims that condition No. 4 falls into a different category. 8. The condition itself, closely reflected in the ultimate decision of the Board on appeal provides:
9. The decision of the County Council was the subject of a third party appeal to the Board. This appeal was taken by an unincorporated association, ‘Combined Action on Weston Aerodrome’. Ultimately, on 20th December, 2005, the Board granted planning permission, subject however to a condition slightly amended from that imposed by the County Council.
10. By way of background, the prior relationship between the applicant and the respondent has been a chequered one, surrounded by much controversy and no little friction. Ultimately, after its acquisition by Mr. Mansfield’s company, Weston has had the benefit of a number of more recent planning permissions in the last decade or so, added to a long established right to use the lands for the purpose of a licensed aerodrome since 1939. Substantial development contested on many quarters has taken place since the Mansfield interests purchase. 11. Weston contends that the effect of the condition now in suit would be to inhibit immediate response to what could be regarded as safety and security issues, including security fencing or alterations to taxiways or aprons which might be requested by the Irish Aviation Authority; and that it is unreasonable to remove or negate the effect of an exemption under the 2001 Regulations as a more immediate response may be required having regard to the nature of an aerodrome. The rationale for the general exemption provided for by the Minister as an exception to the Planning Act, 2000 is to allow for rapid and less inhibited development works at airports developed as part of the State infrastructure. 12. In order to place this contention in context it is necessary first to consider the general ambit of the Planning Act of 2000 with regard to exemptions, and second to consider the specific exemption to which this application relates. The attack on the decision is mounted on three fronts; vires, the duty to give reasons, and proportionality. (i) Are the conditions and the Regulations under which it is made ultra vires? Statutory provisions 13. The principal categories of development exempted from the requirement to obtain planning permission are set out in s. 4 of the Planning and Development Act, 2000. The relevant provision, s. 4(2), states that:
14. Section 4(3) provides that references in the Act to “exempted development” are to include development so classified by the Minister pursuant to s. 4(2). 15. It can be seen from these provisions that the Oireachtas envisaged that the Minister might draw up regulations to designate certain classes of development as exempted development and that such classes, by virtue of the terms of the Act itself would not require planning permission. But the Oireachtas clearly also envisaged that by the insertion of s. 4(2)(b), the Minister would have jurisdiction to impose a condition as regards the extent of the exemption. Does this preclude the planning authorities from doing so? 16. The classes of exempted development are found primarily in the Planning and Development Regulations, 2001. Part I of Schedule 2 of the Regulations sets out 55 classes of exempted development. The class of development is described in ‘column 1’; the corresponding limitations and conditions on such exemption are set out in ‘column 2’. By virtue of article 6(1) of the Regulations –
The exempted class 17. The applicant contends that the condition at issue in the within proceedings seeks to deny the applicant the benefit of the entire class of development set out in class 32 of Part I of Schedule 2. The exemption is defined in class 32 as:
(a) The construction or erection of (i) Where the building an extension of an airport has not been extended previously
airport. shall not exceed 500 square metres or 15% of the existing floor area, whichever is the lesser. (ii) Where the building has been extended previously, the floor area of any such extension, taken together with the floor area of any previous extension or extensions, shall not exceed 15% of the original floor area or 500 square metres, whichever is the lesser. (iii) The planning authority for the area shall be notified in writing not less than four weeks before such development takes place.
taxiways or airside roads used for the movement of aircraft and the distribution of vehicles and equipment on the airside, within an airport,
on the ground including taxiing guidance, signage, inset an elevated airfield lighting or apparatus necessary for the safe navigation of aircraft, within an airport.
gates, security cameras and other measures connected with the security of airport infrastructure, within an airport, or
signs on the ground within an airport. 19. In the absence of an express power to do so, has the Board jurisdiction to “second guess” the Minister’s decision as to what is required, much less to deny the benefit of an exemption to the holder of an aerodrome licence? The Board says it has. It relies on a further article of the Planning and Development Regulations, 2001, as the basis for its jurisdiction to deny an applicant for permission the benefit of exempted development. The Board says the provisions as to exempted development are subject to article 9 of the Schedule. 20. Insofar as material, therefore, Article 9(1)(a)(i) provides:
(i) contradict a condition attached to a permission under the Act or be inconsistent with any use specified in a condition under the Act.” 21. The Board relies on the phrase “contradict a condition” as providing it with the jurisdiction to “condition out” this otherwise exempted development. 22. Weston say the Board is impermissibly seeking to re-interpret primary legislation in the light of a provision contained in secondary legislation; that s. 4(2) of the Act of 2000 alone provides for the classes of exempted development and that the Board seeks to read into this primary legislation a qualification that development falling into a designated class of exempted development would nonetheless require planning permission where the Board so stipulates in a condition attached to a planning condition in relation to the same land. 23. Henchy J. in Frescati Estates v. Walker [1975] 1 I.R. 177 held that Regulations cannot be employed as a tool in interpreting the primary legislation under which they are made:
25. Useful pointers to the resolution of these questions are to be found elsewhere in the Act. First, s 34(4) of the Act of 2000 enumerates seventeen types of conditions which planning authorities and An Bord Pleanála may lawfully impose. However, that sub-section includes no such condition as that imposed on Weston. Insofar as material the section provides: “34-(1) Where –
(b) all requirements of the regulations are complied with,
…” (emphasis added)
26. To establish this statutory provenance one must look to the scheme and objectives of the Planning and Development Act, 2000 as a whole and to certain specific provisions. 27. The statutory intent stated in the preamble to the Act is to provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing; it is profoundly informed by the idea and concept of sustainable development which is central to its objectives. It is informed too by the guiding principles for sustainable spatial development of the European continent. The Act mandates development plans to state objectives for integrating the planning and sustainable development of an area with the “social, community and cultural requirements of the area and its population”. The objective to halt the deterioration of social capital is reflected in requirements to these objectives for providing community services (see generally Environmental and Land Use Law, Yvonne Scannell, Thomson Round Hall, 2006, Chapter 2 – 04). In general, this is to be achieved by the operation of the planning authorities. While the Minister is empowered to issue guidelines and objectives, s. 30 of the Act imposes a limitation on such Ministerial power in that the latter section provides that the Minister shall not exercise any power or control in relation to any particular case with which a planning authority or the Board is, or may be, concerned. Thus the primacy of a planning authority in dealing with each individual case (as opposed to a class) is statutorily enshrined. 28. Part III of the Act deals with the question of control of development. Section 32 provides:
(b) in the case of development which is unauthorised, for the retention of that unauthorised development.
29. The general power granted to a planning authority pursuant to s. 34 is either to grant or refuse a permission or to impose conditions. Under sub-section (2) of the section there are identified a number of different considerations to which the authority must have regard when making a decision in relation to an application under the section. The considerations which the County Council planning inspector has to take into account in dealing with a retention permission are set out in s. 34(2) of the Act and includes:
31. It is true that in Ashbourne Holdings v. An Bord Pleanála [2003] 2 IR 114, decided under the earlier Act of 1963, the Supreme Court held that a planning authority may not rely on its broad discretion under the equivalent section to s. 34(1) to justify imposing a more severe restriction on the applicant than one expressly permissible under the equivalent to s. 34(4); i.e. the specified conditions. 32. In The State (FHP Limited) v An Bord Pleanála [1987] I.R. 698 at 711, McCarthy J. pointed out that general wording in the precursor provision of s. 34(1) and (4) of the Act of 2000 could not be relied upon to validate stricter conditions because such a power would require “statutory expression in the clearest terms”. But these authorities relate to specified circumstances, not the general power to impose conditions not statutorily identified. In The State (Abenglen Properties Limited) v. An Bord Pleanála [1984] I.R. 381, Walsh J. observed obiter that the conditions imposed under the equivalent to s. 34(1) should be of the same nature as those referred to in the equivalent to s. 34(4). However, in Ashbourne (where Abenglen is not referred to in the judgment) speaking on behalf of the court, Hardiman J. specifically held (as part of the ratio decidendi), that a condition under s. 34(1) could be imposed even if it were not within the scope of the specific conditions identified under s. 34(4). He observed in relation to the precursor of s. 34, that is s. 26 of the Act of 1963:
33. None of the identified seventeen specific conditions which might be imposed arise here. Consequently, and absent such specification, I conclude that the power to impose a ‘non-specified’ condition lawfully exercised by the Board through the Regulations outlined earlier, is one authorised by the general power vested in the Board pursuant to s. 34(1) and (4) of the Act of 2000. The key phrase, or image, contained in s. 26 of the Act of 1963, mirrored in Ashbourne and again reflected in s. 34 is the general power: “without prejudice to the generality” of sub-s. (1). Unless the power exercised comes within the scope of any one of the seventeen specified circumstances (when it will require to be strictly construed), the power otherwise, and the jurisdiction vested, is a ‘general’ one, provided it is lawfully and rationally imposed in the interests of proper planning and sustainable development. Thus, such a condition to be justified in law must rationally accord with the stated objectives of proper planning and sustainable development. I consider that the condition is in accordance with these objectives. 34. The position here is not that the planning authority is “second guessing” the Minister who granted an exemption a case of certain categories of development; rather the authority is properly exercising a power vested in it by statute in relation to the retention of an unauthorised development as provided for under s. 32(2) cited above. 35. As a guide in the process of interpretation sub-s. 12 of s. 34 is also of some assistance. It provides:
Thus, taking these reasons together, the challenge on vires must fail. Failure to provide reasons 37. It is necessary next to consider the second aspect of the applicant’s case, a challenge based on a failure to provide reasons for the condition. The reason ultimately furnished by the Board, it will be recollected, was “in the interest of orderly development”. 38. Section 34(10)(a) of the Act of 2000 expressly requires the planning authority or An Bord Pleanála to give reasons for the imposition of any condition in relation to the grant of planning permission:-
40. For conditions, however, the position is different. It is necessary only to provide “reasons”. It is not necessary for the Board to set out in detail the matters it concluded. 41. The condition imposed in the instant case was not one of those seventeen described in s. 34(4). In such circumstance, that is in reliance on the general power, and in order to establish vires within the objectives of the Act, I consider that the respondent was under an enhanced obligation to state the “main reasons” for the decision. This obligation is derived from the necessity to ensure that the condition imposed is within the four walls of the Act as a whole. For a permission or retention there must be both “a statement of the main reasons but also the considerations upon which the decision in question is based” per Kelly J. in Mulholland v. An Bord Pleanála (No. 2) [2006] 1 IR 453 I.L.R.M. 287. Here, in the case of a condition, the requirement is by contrast to state simply the main reasons but not considerations. This does not detract from the requirement that the rationale for the condition must be explicit. 42. In O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, 759: Murphy J. stated:
“The statement […] must therefore be sufficient to: (1) give to an applicant such information as may be necessary and appropriate for him to consider whether he has a reasonable chance of succeeding in appealing or judicially reviewing the decision, (2) arm himself for such hearing or review, (3) know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider, and (4) enable the courts to renew the decision.” While this test was enunciated in the context of a leave application and on different facts, it has since been cited with approval in the context of a substantive judicial review in Grealish v. An Bord Pleanála The High Court, Unreported, O’Neill J., 24th October, 2006. 44. In South Bucks. District Council & Anor. v. Porter (No. 2) [2004] 1 W.L.R., Lord Brown of Eaton-under-Heywood observed in the context of the obligation to provide reasons for a condition:-
45. The excerpt from the decision in the South Bucks. case has been italicised and emphasised for a particular reason in the context of the facts of this case. There should be no scope for significant doubt of law fairness or rationality. 46. For the purposes of its deliberation the Board had before it its inspector’s report. In the report the Board’s inspector gives as his basis for the recommended condition a reason identical to that ultimately given by the Board itself, namely “in the interests of orderly development”. But at an earlier point the inspector goes slightly further, in that, after citing the equivalent condition in the planning authority’s decision he states:
47. Such apprehension would not be entirely without evidential support. Before South Dublin County Council, the planning authority, there was at p. 7 a “record of executive business and manager’s order” the statement:
48. I would wish it to be understood that reciting rhetorical question this Court I am far from concluding that the imposition of the conditions in questions were in any way actuated by an improper motive. I emphasise, I make no such finding. However, the rhetorical question, in this specific context, indicates a further basis for the observation that in the circumstance where the condition is not one of those generally envisaged in s. 34, there is an enhanced obligation to provide reasons which come within the requirements outlined in the judgments in O’Donoghue and Mulholland. In this case, with this background, there has been an obligation to state reasons for the condition clearly, cogently, and in a manner to eliminate a reasonably held doubt as to whether there had been an error in law, a misunderstanding or other unlawful basis for the condition. The specific solution did not allow for permit, a formulaic mantra or a ritualistic form of words as being a sufficient rationale. This finding is on the facts of this case. 49. Ms. Niamh Hyland B.L. on behalf of the Board sought to outline a number of circumstances in which the ‘reason’ given might indeed be justified, rationalised or contextualised. The term ‘in the interest of orderly development’ might be understood in the context of the phraseology of an earlier permission, granted in 2003, where permission had been sought for the demolition of existing hangars, the construction of new hangars, office and club house and 180 car parking spaces, together with aircraft parking and associated development works. The permission for the development of the hangars together with adjoining car parking was refused. The permission for the remainder of the development was granted in accordance with plans and particulars, the gist of which was to allow for a full assessment of any substantial intensification of user of the premises. In this context perhaps this was the ‘orderly development’ referred to. 50. This was indeed a retention permission. It contained within it a specific incorporation of a previous permission granted in 2003. Thus the conditions need not necessarily set out a general principle. The application related to the same applicants and related to the same general locus as that previous permission. It might be seen within the same parameters. 51. A further explanation, by no means unreasonable in itself, is the undoubted fact that the applicant had accepted, in the course of submissions to the planning authorities, that this application should not be dealt with in isolation and treated with, and in the context of, the previous permission. A further possible explanation might be in the interest of residential amenity – undoubtedly an issue in the locality in view of the proximity of dwelling houses close to the development and the fact that it was a retention permission with the potentiality of intensification of user. 52. However, the very fact that these various plausible reasons were canvassed in submissions as attending the condition begs a further question, why then were none of them specifically given by the Board when it furnished its reasons? 53. Furthermore, in the context of this case, the fourth of the reasons given by Kelly J. in Mulholland comes into focus: the supervisory role of the court. A distinction may exist between what an applicant subjectively “well knows” as to context or meaning, by way of a reason sufficient to satisfy a contrast to the court in the exercise of its statutory role. 54. An applicant may know the parameters within which an application was made and its relationship to a previous permission. But the fact that such applicant may have this information does not in all circumstances provide an end point to the duty to provide objectively justifiable reasons, such that the supervisory jurisdiction of the court may be exercised. An applicant while knowing the context may not necessarily be aware of all the elements which form part of a consideration in the inspection process the manner in which a matter is placed before a decision maker, or the decision itself. 55. It is in this legal and factual context therefore that an enhanced duty existed in the instant case. The very purpose of the duty to give reasons is to remove lingering doubts as to motive or rationale. Such doubts are not always removed by formulaic recitals. 56. In Killiney and Ballybrack Development Association Limited v. The Minister for Local Government & Anor. [1987] I.L.R.M. 878 at 81, counsel for the respondent Minister had sought to justify conditions imposed by the respondent Minister on the basis of instructions received from his client but which had not been contained in the condition itself. To this Henchy J. responded:
57. In the factual context of this case, and having regard to the unusual evidential features identified, I do not consider the reason given for the condition was sufficient to comply with the statutory duty of the Board. In the light of what is now known more was required to remove any reasonable apprehension in law, irrationality or doubt as to propriety of purpose. Consequently, I consider that the applicant is entitled to judicial review on this basis. Proportionality and the Convention Act of 2003 58. In the course of argument, counsel on behalf of the applicant submitted that, even if the court were to declare that the court had acted in excess of jurisdiction in failing to give adequate reasons that nonetheless, consideration should be given to a third facet of the claim, that is to say, whether the condition which had been imposed was proportionate and whether the applicant’s rights under Article 1 of the First Protocol of the European Convention on Human Rights was engaged. 59. I do not think that this would be an appropriate course of action for this Court to adopt. I make this finding for the following reasons. First, any finding in relation to the issue of proportionality might necessarily carry with it an element of prescription, that is to say, an indication or an implication to the Board as to the manner in which it should proceed in the future. As Carroll J. found in Phillips v. The Medical Counsel [1992] I.L.R.M. at p. 469, judicial review does not exist to direct procedure in advance but to make sure that bodies which have made decisions susceptible of review have carried out their duties in accordance with natural and constitutional justice and in accordance with fair procedures. For this Court to seek to prescribe the manner in which the Board should proceed on any reconsideration would necessarily fetter its discretion. Still more would any direction to the effect that the Board should proceed in a particular way. 60. Second, the very finding which has been made in the course of this judgment has the effect that the question of Convention rights are not engaged. As a starting point for the invocation of Convention rights there must be a clear and identified procedure and a “determination” giving rise to circumstances where the applicant may rely upon Convention rights. Such rights do not arise pre-emptively or in hypothetical circumstances. (See Salabiaku v. France 10519/83 [1988] E.C.H.R.; Barberá v. Spain (Application No. 10590/83, judgment of the European Court of Human Rights, 6th December, 1988) and Kennedy v. The Director of Public Prosecutions and the Attorney General [2007] IEHC 3.) 61. It will be noted that s. 3 of the European Convention on Human Rights Act, 2003 provides:
(2) A person who has suffered injury, loss or damage as a result of a contravention of section 1 may if no other remedy in damages is available institute proceedings to recover damages in respect of the contravention in the High Court.” (emphasis added). |