Exemption Certification
Planning and Development Act
Exempted development.
4.—(1) The following shall be exempted developments for the purposes of this Act—
(a) development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used;
F43[(aa) development by a local authority in its functional area (other than, in the case of a local authority that is a coastal planning authority, its nearshore area);]
F44[(ab) development by a coastal planning authority that—
(i) owns the maritime site on which the development is proposed to be situated, or
(ii) is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
in its nearshore area;]
F45[(ab) development consisting of the carrying out of relevant works or related activities over principal burial land, ancillary burial land or ancillary land within the meaning of the Institutional Burials Act 2022;]
(b) F46[…]
(c) F46[…]
(d) F46[…]
F47[(e) development consisting of the carrying out by a local authority of any works required for the construction of a new road or the maintenance or improvement of a road;
(f) development carried out on behalf of, or jointly or in partnership with, a local authority, pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity;]
(g) development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus, including the excavation of any street or other land for that purpose;
(h) 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 the appearance inconsistent with the character of the structure or of neighbouring structures;
F48[(i) development consisting of the thinning, felling or replanting of trees, forests or woodlands or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species;]
F49[(ia) development (other than development consisting of the provision of access to a national road within the meaning of the Roads Act 1993) that consists of—
(I) the construction, maintenance or improvement of a road (other than a public road) that serves a forest or woodland, or
(II) works ancillary to such construction, maintenance or improvement;]
(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;
(k) development consisting of the use of land for the purposes of a casual trading area (within the meaning of the Casual Trading Act, 1995);
(l) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are commenced F50[or works consisting of land reclamation or reclamation of estuarine marsh land and of callows, referred to in section 2 of that Act.]
F44[(1A) Subject to subsection (1B), the following classes of development shall also be exempted development for the purposes of this Act if carried out wholly in the maritime area:
(a) development for the purposes of any survey for archaeological purposes;
(b) development for the purposes, or consisting, of—
(i) the exploration for petroleum, within the meaning of Part II of the Petroleum and Other Minerals Development Act 1960, in accordance with a licence under section 8, 9 or 19 of that Act or a lease under section 13 of that Act,
(ii) the working, within such meaning, of such petroleum, in accordance with such lease or licence, or
(iii) the restoration of the area in which such exploration or working has taken place;
(c) development consisting, or for the purposes, of the construction or operation, in accordance with a consent under subsection (1) of section 40 of the Gas Act 1976, of an upstream pipeline,
(d) development for the purposes, or consisting, of dumping within the meaning of the Dumping At Sea Act 1996;
(e) development authorised under section 638 of the Merchant Shipping Act 1894 or section 3 of the Merchant Shipping (Commissioners of Irish Lights) Act 1997 by the Commissioners of Irish Lights for the purposes, or consisting, of the placement of aids to navigation;
(f) activities that are the subject of, or require, a licence under Part 5 of the Maritime Area Planning Act 2021;
(g) development consisting of the use of any land or maritime site for the purposes of—
(i) the harvesting of shellfish, or
(ii) activities relating to fishing or aquaculture.
(1B) Development referred to in paragraph paragraph (a), (d), (e) or (g) of subsection (1A) shall not be exempted development if an environmental impact assessment of the development is required.
(1C) Development referred to in paragraph (a), (d), (e) or (g) of subsection (1A) shall not be exempted development if an appropriate assessment of the development is required.]
(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that—
(i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or
(ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described).
(b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations.
(c) Regulations under this subsection may, in particular and without prejudice to the generality of paragraph (a), provide, in the case of structures or other land used for a purpose of any specified class, for the use thereof for any other purpose being exempted development for the purposes of this Act.
(3) A reference in this Act to exempted development shall be construed as a reference to development which is—
(a) any of the developments specified in F51[subsection (1) or (1A)], or
(b) development which, having regard to any regulations under subsection (2), is exempted development for the purposes of this Act.
F48[(4) Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.
(4A) Notwithstanding subsection (4), the Minister may make regulations prescribing development or any class of development that is—
(a) authorised, or required to be authorised by or under any statute (other than this Act) whether by means of a licence, consent, approval or otherwise, and
(b) as respects which an environmental impact assessment or an appropriate assessment is required,
to be exempted development.]
(5) Before making regulations under this section, the Minister shall consult with any other State authority where he or she or that other State authority considers that any such regulation relates to the functions of that State authority.
Annotations
Amendments:
F43
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F44
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F45
Inserted (15.07.2022) by Institutional Burials Act 2022 (18/2022), s. 97, S.I. No. 356 of 2022.
F46
Deleted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 11.
F47
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 12, S.I. No. 214 of 2014.
F48
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(i) and (b), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2).
F49
Substituted (8.02.2020) by Planning and Development (Amendment) Act 2018 (16/2018), s. 8, S.I. No. 44 of 2020.
F50
Inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(iii), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2).
F51
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F52
Inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 3, not commenced as of date of revision.
Modifications (not altering text):
C21
Prospective affecting provision: subs. (1)(fa) inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 3, not commenced as of date of revision.
F52[(fa) development to which section 179A applies;]
C22
Prospective affecting provision: certain developments prescribed as exempted developments by Remediation of Dwellings Damaged by the use of Defective Concrete Blocks Act 2022 (28/2022), s. 28, not commenced as of date of revision.
Exempted development
28. (1) Subject to subsections (2) and (3), and section 4(4) of the Act of 2000, development consisting of the completion of an approved remediation option shall be exempted development within the meaning of, and for the purposes of, that Act.
(2) The development referred to in subsection (1) shall only be exempted development where, on its completion, it is not inconsistent with, or materially different from, the appearance and character of the relevant dwelling in respect of which the approved remediation option is to be or has been completed.
(3) Where the approved remediation option is the demolition of the relevant dwelling and the reconstruction of the dwelling and any permission granted in respect of the relevant dwelling under section 34 of the Act of 2000 is subject to conditions under that section, the conditions shall continue to apply to the relevant dwelling.
(4) In this section—
“development” has the meaning it has in the Act of 2000;
“permission” has the meaning it has in the Act of 2000.
C23
Certain developments prescribed as exempted developments (1.05.2007) by Prisons Act 2007 (10/2007), s. 28, S.I. No. 180 of 2007.
Exemptions, etc., relating to development.
28.— (1) A development—
(a) is an exempted development for the purposes of the Planning and Development Acts 2000 to 2006,
(b) is not subject to—
(i) regulations under section 181 of the Planning and Development Act 2000 ,
(ii) the European Communities (Environmental Impact Assessment) Regulations 1989 to 2005,
(iii) the said Acts of 2000 to 2006 in so far as they relate to environmental impact assessments or any regulations under those Acts relating to such assessments, or
(iv) the Building Control Act 1990 and regulations thereunder,
and
(c) subject to subsections (2) and (3), shall not require a consent or licence under the National Monuments Acts 1930 to 2004 (other than a licence under section 25 of the National Monuments Act 1930 ) or any other consent or licence.
C24
Additional developments prescribed as exempted developments by Dublin Transport Authority Act 2008 (15/2008), s. 44(14), as inserted (8.02.2016) by Public Transport Act 2016 (3/2016), s. 1(b)(iv), commenced on enactment.
Functions of Authority in relation to public transport infrastructure.
44.—(1) In relation to public transport infrastructure in the GDA, the Authority shall have the following functions: …
[(14) The carrying out by the Authority, on its behalf or at its direction of —
(a) a proposed road development (within the meaning of the Roads Act 1993) that has been approved by An Bord Pleanála under section 51 (as amended by section 9 of the Roads Act 2007) of that Act, or
(b) a proposed development that has been approved by An Bord Pleanála—
(i) under subsection (9) (inserted by section 34(c) of the Planning and Development (Strategic Infrastructure) Act 2006) of section 175 of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section, or
(ii) under subsection (8) of section 177AE (inserted by section 57 of the Planning and Development (Amendment) Act 2010) of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section,
shall be exempted developments for the purposes of the Act of 2000.]
C25
Additional developments specified as exempted developments (23.12.2001) by Transport (Railway Infrastructure) Act 2001 (55/2001), s. 38, commenced on enactment, as substituted (1.08.2008) by Dublin Transport Authority Act 2008 (15/2008), s. 115(6), S.I. No. 291 of 2008.
Exempted development.
[38.— (1) Each of the following shall be exempted development for the purposes of the Act of 2000:
(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Board and specified in a railway order or of any incidental or temporary works connected with such development;
(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order. ]
Editorial Notes:
E16
Power pursuant to subs. (4A) exercised (14.12.2022) by Planning and Development Act 2000 (Exempted Development) (Number 5) Regulations 2022 (S.I. No. 664 of 2022), in effect as per reg. 1(3).
E17
Power pursuant to subs. (2) exercised (29.11.2022) by Planning and Development (Exempted Development) (No. 4) Regulations 2022 (S.I. No. 605 of 2022).
E18
Power pursuant to subs. (2) exercised (5.10.2022) by Planning And Development Act 2000 (Exempted Development) (No. 3) Regulations 2022 (S.I. No. 493 of 2022).
E19
Power pursuant to subs. (2) exercised (5.10.2022) by Planning And Development (Solar Safeguarding Zone) Regulations 2022 (S.I. No. 492 of 2022).
E20
Power pursuant to subs. (2) exercised (30.03.2022) by Planning and Development Act 2000 (Exempted Development) (Number 2) Regulations 2022 (S.I. No. 151 of 2022).
E21
Power pursuant to subs. (2) exercised (21.02.2022) by Planning and Development Act (Exempted Development) Regulations 2022 (S.I. No. 75 of 2022).
E22
Power pursuant to subs. (2) exercised (30.04.2021) by Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2021 (S.I. No. 208 of 2021).
E23
Power pursuant to subs. (2) exercised (16.03.2021) by Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2021 (S.I. No. 115 of 2021).
E24
Power pursuant to subs. (2) exercised (16.03.2021) by Planning and Development Act 2000 (Exempted Development) Regulations 2021 (S.I. No. 114 of 2021).
E25
Power pursuant to subs. (2) exercised (7.08.2020 for relevant period) by Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2020 (S.I. No. 293 of 2020).
E26
Power pursuant to subs. (2) exercised (27.03.2020 for relevant period) by Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2020 (S.I. No. 92 of 2020).
E27
Power pursuant to subs. (2) exercised (13.02.2020) by Planning and Development (Amendment) Regulations 2020 (S.I. No. 46 of 2020).
E28
Power pursuant to subs. (4A) exercised (8.02.2020) by Planning and Development Act 2000 (Exempted Development) Regulations 2020 (S.I. No. 45 of 2020), in effect as per reg. 1(3).
E29
Power pursuant to subs. (2) exercised (1.07.2019) by Planning And Development Act 2000 (Exempted Development) (No. 2) Regulations 2019 (S.I. No. 235 of 2019), in effect as per reg. 1(3).
E30
Power pursuant to subs. (4A) exercised (25.01.2019) by Planning And Development Act 2000 (Exempted Development) Regulations 2019 (S.I. No. 12 of 2019), in effect as per reg. 1(2).
E31
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) (No. 3) Regulations 2018 (S.I. No. 31 of 2018).
E32
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018).
E33
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) Regulations 2018 (S.I. No. 29 of 2018).
E34
Power pursuant to subs. (2) exercised (17.12.2015) by Planning and Development (Amendment) (No. 4) Regulations 2015 (S.I. No. 582 of 2015).
E35
Power pursuant to section exercised (24.06.2013) by Planning and Development (Amendment) Regulations 2013 (S.I. No. 219 of 2013).
E36
Power pursuant to section exercised (8.09.2011) by Planning and Development (Amendment) (No. 2) Regulations 2011 (S.I. No. 454 of 2011).
E37
Power pursuant to section exercised (10.07.2008) by Planning and Development (Amendment) Regulations 2008 (S.I. No. 256 of 2008).
E38
Power pursuant to section exercised (2.07.2008) by Planning and Development Regulations 2008 (S.I. No. 235 of 2008).
E39
Power pursuant to subs. (2) exercised (28.02.2007) by Planning and Development Regulations 2007 (S.I. No. 83 of 2007).
E40
Power pursuant to section exercised (14.07.2005) by Planning and Development Regulations 2005 (S.I. No. 364 of 2005).
E41
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E42
Previous affecting provision: subs. (1)(aa) inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 11, S.I. No. 214 of 2014; substituted (1.10.2022) as per F-note above.
E43
Previous affecting provision: subs. (1)(ia) inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(ii), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2); substituted as per F-note above.
E44
Previous affecting provision: similar amendments to those made by 2011 Act made by Planning and Development (Amendment) Act 2010 (30/2010), s. 5, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
Declaration and referral on development and exempted development.
5.—(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2) (a) Subject to F53[paragraphs (b) and (ba)], a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.
(b) A planning authority may require any person who made a request under subsection (1) to submit further information with regard to the request in order to enable the authority to issue the declaration on the question and, where further information is received under this paragraph, the planning authority shall issue the declaration within 3 weeks of the date of the receipt of the further information.
F54[(ba)(i) Subject to subparagraph (ii), a planning authority shall not be required to comply with paragraph (a) within the period referred to in that paragraph where it appears to the planning authority that it would not be possible or appropriate, because of the exceptional circumstances of the development or proposed development (including in relation to the nature, complexity, location or size of such development) identified in the request under subsection (1) to do so.
(ii) Where subparagraph (i) applies, the planning authority shall, by notice in writing served on—
(I) the person who made the request under subsection (1), and
(II) each person to whom a request has been made under paragraph (c),
before the expiration of the period referred to in paragraph (a), inform him or her of the reasons why it would not be possible or appropriate to comply with that paragraph within that period and shall specify the date before which the authority intends that the declaration concerned shall be made.]
(c) A planning authority may also request persons in addition to those referred to in paragraph (b) to submit information in order to enable the authority to issue the declaration on the question.
(3) (a) Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to the Board of such fee as may be prescribed, refer a declaration for review by the Board within 4 weeks of the date of the issuing of the declaration.
(b) Without prejudice to subsection (2), in the event that no declaration is issued by the planning authority, any person who made a request under subsection (1) may, on payment to the Board of such fee as may be prescribed, refer the question for decision to the Board within 4 weeks of the date that a declaration was due to be issued under subsection (2).
(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.
(5) The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.
(6) (a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.
(b) The Board may charge a specified fee, not exceeding the cost of making the copy, for the purchase of a copy of the record referred to in paragraph (a).
(c) The Board shall, from time to time and at least once a year, forward to each planning authority a copy of the record referred to in paragraph (a).
(d) A copy of the said record shall, at the request of a member of a planning authority, be given to that member by the F55[chief executive] of the planning authority concerned.
(7) A planning authority, before making a declaration under this section, shall consider the record forwarded to it in accordance with subsection (6)(c).
F56[(7A) A planning authority or the Board, as the case may be, shall, in respect of a development or proposed development specified in Part 2 of Schedule 5 to the Planning and Development Regulations 2001, specify in its declaration or decision, as the case may be, whether the development or proposed development identified in the request under subsection (1) or in the referral under subsection (3) or (4), as the case may be, would be likely to have significant effects on the environment by virtue, at the least, of the nature, size or location of such development and require an environmental impact assessment.
(7B)(a) Where the planning authority issues its declaration on a request under subsection (1) or the Board makes its decision on a referral under subsection (3) or (4), as the case may be, the following documents shall, within 3 working days, be placed on the planning authority’s or Board’s, as the case may be, website for inspection and be made available for inspection and purchase by members of the public during office hours at the offices of the authority or Board, as the case may be, for at least the minimum period referred to in paragraph (b):
(i) a copy of the question arising as to what is or is not development or is or is not exempted development within the meaning of this Act and any information, particulars, evidence, written study or further information received or obtained from any of the following:
(I) the person making the request or referral, as the case may be;
(II) the owner or occupier of the land in question;
(III) any other person;
(ii) a copy of any submissions or observations in relation to the question arising as to what is or is not development or is or is not exempted development within the meaning of this Act;
(iii) a copy of any report prepared by or for the authority or the Board, as the case may be, in relation to the request or referral;
(iv) a copy of the declaration of the authority or the decision of the Board, as the case may be, in respect of the question identified in the request under subsection (1) or in the referral under subsection (3) or (4), as the case may be.
(b) The minimum period for the purposes of paragraph (a) is 8 weeks from the date of the issue of the declaration by the planning authority or the date of the decision of the Board, as the case may be.
(7C) For the purposes of subsection (7A), the Minister may, by regulations, provide for additional, consequential or supplementary matters as regards procedures in respect of a request under subsection (1) or a referral under subsection (3) or (4), as the case may be, in relation to—
(a) the submission of information to the planning authority or the Board for those purposes,
(b) time limits within which such information shall be so submitted,
(c) notifications to persons concerned with the declaration or decision, as the case may be, referred to in that subsection,
(d) steps to be taken (including matters which must be regarded) in the course of the making of such declaration or decision, or
(e) the publication of such declaration or decision.]
F57[(8)(a) The Minister for Arts, Heritage and the Gaeltacht may apply to the Board under this subsection, without charge, for a determination as to whether an activity requiring the consent of that Minister—
(i) F58[pursuant to a notification under Regulation 4(2) of the European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997) or pursuant to a direction under Regulation 28(1) or 29(1) of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011)] or under regulations made under the European Communities Act 1972 for the purpose of giving further effect to the Birds Directive or the Habitats Directive by designating a site as a special area of conservation or as a special protection area, or
(ii) under section 19 of the Wildlife (Amendment) Act 2000,
comprises development which is not exempted development, and the Board shall make such determination as soon as may be and shall inform that Minister of its determination and the reasons for the determination.
(b) An application from the Minister for Arts, Heritage and the Gaeltacht under this subsection shall include the following:
(i) a copy of the application for consent;
(ii) any other relevant information submitted with the application for consent;
(iii) the reasons why that Minister considers that the activity may not be exempted development;
(iv) the opinion of that Minister as to whether an appropriate assessment is required, and the reasons for that opinion;
(v) the opinion of that Minister as to whether the development is likely to have significant effects on a European site or an area designated as a Natural Heritage Area under section 18 of the Wildlife (Amendment) Act 2000 and the reasons for that opinion, having regard to the purposes for which the site was designated.
(c) The Board may seek additional information from—
(i) the applicant for consent, or
(ii) the Minister for Arts, Heritage and the Gaeltacht,
and where this is not provided within the period specified, or any further period as may be specified by the Board, the Board shall not make a determination on the matter and the application of that Minister under this subsection shall be deemed to be withdrawn and the Board shall inform that Minister accordingly.
(d) In paragraph (a)(i) “special area of conservation” and “special protection area” have the same meaning as they have in section 177R.]
Annotations
Amendments:
F53
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 7(a)(i), in effect as per reg. 2(1).
F54
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 7(a)(ii), in effect as per reg. 2(1).
F55
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6 and sch. 2 ref. no. 3, S.I. No. 436 of 2018.
F56
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 7(b), in effect as per reg. 2(1).
F57
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 4.
F58
Substituted (15.11.2011) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011 (S.I. No. 584 of 2011), reg. 4.
Modifications (not altering text):
C26
Functions under subs. (8) transferred and references construed (24.06.2021) by Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2021 (S.I. No. 302 of 2021), arts. 2, 3 and sch. part 1, in effect as per art. 1(2), subject to transitional provisions in arts. 4-8.
2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by this Order are transferred to the Department of Housing, Local Government and Heritage.
(2) References to the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media contained in any Act or any instrument made under an Act and relating to any administration and business transferred by paragraph (1) shall, from the commencement of this Order, be construed as references to the Department of Housing, Local Government and Heritage.
3. (1) The functions vested in the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media–
(a) by or under any of the provisions of the Acts specified in Part 1 of the Schedule,
(b) under the Regulations specified in Part 2 of the Schedule, and
(c) to make a recommendation to which section 12(3)(b)(iii) of the Planning and Development Act 2000 (No. 30 of 2000) applies and to make observations to which section 12(3)(b)(iv) of that Act applies,
are transferred to the Minister for Housing, Local Government and Heritage.
(2) References to the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media contained in any Act or instrument made under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Housing, Local Government and Heritage.
…
SCHEDULE
Part 1
…
Sections 5(8), 52(2), 53, 55 and 80 of the Planning and Development Act 2000 (No. 30 of 2000)
…
Editorial Notes:
E45
Previous affecting provision: subs. (8)(a)(i) inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 4, amended as per F-note above.
Power of examination, investigation and survey.
6.—A planning authority and the Board shall each have all such powers of examination, investigation and survey as may be necessary for the performance of their functions in relation to this Act or to any other Act.
Cases
Devils Glen Equestrian Centre Ltd v Wicklow County Council
[2010] IEHC 356
Judgment of Mr. Justice Hedigan delivered on the 12th day of October, 2010.
1. Introduction
1.1 The applicant is the owner of an equestrian centre on lands at Devils Glen, Ashford, Co. Wicklow which is used for the training of horses and has been in operation for about 11 years. On the 16th of June 2009, the respondent, Wicklow County Council, issued an enforcement notice in relation to an “all weather gallops” constructed by the applicant at the equestrian centre. The applicant now seeks declaratory relief that this notice is invalid.
2. Background facts
2.1 In 2009, upon the advice of its planning experts that planning permission was not required, the applicant constructed at the equestrian centre an all weather training area for horses which was partly covered with an all weather surface (the “gallops”). The gallops comprise circa 2,000 metre long elongated loop on an approximately east-west alignment. From its starting point at the east end, the horses are galloped uphill for circa 1,000 metres; this part of the gallops consists of a proprietary material known as Ecotrack, an all weather material which is meant to simulate the grip that horses get on turf, laid on a draining bed comprised of stone overlaid by porous tarmacadam. The material itself consists of sand, fibres and rubber which have been molecularly coated in wax. The next 1,000 metre portion of the gallops is known as the bridle path. This has been surfaced with broken stone and “dirty pit-dash run” fine gravel, i.e. gravel that has not been washed and contains small quantities of dirt or clay.
2.2 On the 6th March, 2009 the respondent served a notice letter upon the applicant warning that the gallops was possibly an unauthorised development. The applicant responded by letter of the 11th March, 2009 stating that they had consulted an architect in relation to the construction of the gallops and had been unequivocally advised that the works were exempt development. The applicant further responded by way of a written submission, drafted by the applicant’s architect, T. O’Phelan Design Limited dated the 1st April, 2009 arguing that the gallops was an exempt development under Article 6 and Class 10, Part 3, Schedule 2 of the Planning and Development Regulations 2001 (the 2001 Regulations). Class 10 provides exemption for:-
“The erection of an unroofed fenced area for the exercising or training of horses or ponies together with a drainage bed or soft surface material to provide an all weather surface.”
2.3 Prior to the issue of the enforcement notice, the respondent wrote a second warning letter on the 4th June, 2009 (the second warning letter) to the applicant. It provided as follows:-
“The development of the subject “all weather gallops” conforms more to actual race and exercise track (includes in part at this stage the standard race course metal railings) then an enclosed paddock arena and thus it does not come within the exempted provisions of Class 10, Part 3, Schedule 2 of the Planning and Development Regulations 2001 (as amended). It is the opinion of the Planning Authority that the latter exemption provisions apply to enclosed paddock arenas that have a soft ground surface. A section of the “all weather gallops” that is defined as “gallops” on the site layout plans submitted with the said submission of T. O’Phelan Design Limited has been surfaced to date with a layer of tarmacadam. The provision of such a hard surface automatically places this development outside of the provisions of the said Class 10 exemption provisions, but in any event the nature (i.e. its appearance and layout) and extent (i.e. the cumulative length of the track of some 2,000 metres) of the subject all weather equestrian facility is considered by the Council to be a development that is not covered by Class 10. The full wording of this provision of the 2001 Planning Regulations is included at the foot of this letter.
You will note that the scope of the wording of this exemption provision does not provide for the development of ancillary vehicular parking and horse assembly area. Therefore the development by you of such an area at the south eastern end of the subject site, constitutes a non-exempted development per se.
Therefore Wicklow County Council considers that the development of the subject “all weather gallops” is in its entirety including the bridle path and ancillary car park constitutes a non-exempt development with reference to the provisions of s. 3(1) and (4) of the 2000 Planning Act and the associated planning regulations.
In addition, the planning authority considered that the full operation of the subject “all weather gallops” at a completed stage would possibly give rise to increased traffic into the Devils Glen Equestrian site, and thus will “endanger public safety by reason of traffic hazards” and thus come within the de-exemption provisions of Article 9(1)(a)(iii) of the Planning and Development Regulations 2001 (as amended).
There is also a possibility that the completion of the subject “all weather gallops” and its full operation will give rise to an intensification of use of an existing equestrian facility that will be of material significance (i.e. a material change of use) for planning control purposes such as impacts on traffic safety on the adjoining regional road, create traffic congestion on the site – endanger the health and safety with respect to other users of the internal access routes that straddle and transgress the subject gallops and bridle track. Such a material change of use per se is likely to bring this development within the scope of the definition of development in s. 3(1) of the 2000 Planning Act.”
2.4 The respondent issued an enforcement notice on the 16th June, 2009 (the Notice), which required the applicant to cease all works and use with respect to all features of the gallops until such time as the development obtained the benefit of planning permission. On the 27th June, 2009, the applicant was granted leave to seek judicial review to challenge the validity of the notice. The applicants contend that the second warning letter shows that the respondent applied incorrect reasoning in the issuing of the notice.
3. The applicant’s submissions
3.1 The applicant contends that the development constitutes an exempted development under s. 4 of the Planning and Development Act (the 2000 Act), particularly s. 4(1)(a) which exempts certain developments from the requirements to obtain planning permission, including such developments:-
“consisting of the use of any land for the purpose of agricultural and development consisting of the use of that purpose of any building occupied together with lands so used.”
Section 2 of the Act of 2000 defines “agriculture” as including (inter alia):-
“The training of horses and the rearing of bloodstock …”
3.2 The 2001 Regulations provide for exemptions from the requirement to seek planning permission. The applicant referred the Court to Article 6 and Class 10, Article 3, Schedule 2 of the 2001 Regulations, which provides exemptions to planning permission for areas for the training of horses. The conditions for the application of this exemption are set out in Class 10 as follows:-
“1. No such structure shall be used for any purpose other than the exercising or training of horses or ponies.
2. No such area shall be used for the staging of public events.
3. No such structure shall be situated within 10 metres of any public road, and no entrance to such area shall be directly off any public road.
4. The height of any structure shall not exceed 2 metres.”
The applicant submitted that the gallops satisfied these conditions and therefore comes within the exemption.
3.3 The applicant submitted that because the respondent asked the wrong question of themselves prior to the issue of the notice they fell into an error of law. The argument of the applicant is that in examining the validity of the notice the relevant test is not the test in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 (i.e. whether a respondent disregarded reason and commonsense in reaching its decision) but as to whether the respondent erred in law in the matter.
3.4 The applicant submitted that the considerations applied by the respondent in the second warning letter took into account inappropriate matters outside the scope of matters which properly should have been taken into account by the respondent, being that:-
(a) The fact that the “all weather gallops” appeared to the respondent to conform more to an “actual race or exercise track” and the reference to “standard race course metal railings” is bringing into play irrelevant considerations which are not referred to in the Regulations;
(b) The applicant submits that the gallops have a soft surface and the existence of a layer of tarmacadam does not mean that the complete development would not meet the requirements of the 2001 Regulations. The applicant submitted that the tarmacadam observed on the gallops by the respondent was part of the sub-surface and not part of the surface of the gallops;
(c) The consideration of the respondent that the “all weather gallops” at a completed stage will possibly give rise to increased traffic in and out of the equestrian centre or to some intensification of the existing equestrian facility are speculative considerations which were not borne out in any way by the information available to the respondent at the time of sending the warning letter.
3.5 The applicant argues that the respondent’s report in relation to the railing on the gallops was factually incorrect. They were in fact plastic railings. In addition, the tarmacadam surface observed by the respondent’s official prior to the issue of the notice was not in fact part of the surface but part of the sub-surface of the gallops. He presumably saw the track before it had been completed by the addition on top of the tarmacadam of the final soft surface. On this basis, irrelevant considerations were taken into account by the respondent prior to the issuing of the notice. In the applicant’s submission, the porous tarmacadam was an integral part of the specifications for the gallops designed to provide a free draining separation layer between the stone base and the all weather surface metal material, Ecotrack, which prevents the stone from becoming mixed in the surface material. Expert evidence on affidavit was presented to the Court stating that Ecotrack was a soft surface material of the kind that would put the gallops within Class 10 of the Regulations. Further evidence was presented to the Court from the manufacturers of the material which states that they recommend that the material should be compacted to a depth of 175 mm, laid on a drainage bed of 60 mm porous tarmacadam laid on a drainage stone base of 150 mm. This evidence further stated that the surface of the gallops had been laid in two such specifications.
3.6 It was submitted that the considerations taken into account by the respondent prior to the issuing of the notice rose from the respondent asking itself the wrong question in relation to the issue of whether or not the gallops were exempted, and that because of this the notice should be quashed in accordance with the judgment of the Supreme Court in White v. Dublin City Council [2004] 1 IR 545.
3.7 In White, Fennelly J. applied the earlier Supreme Court judgment in State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála, to a decision of the Planning Officer in Dublin City Council (one Mr. Rose). Fennelly J. found that although the decision of the Planning Officer was not in itself a flawed decision, it was based on an exclusion from consideration of particular relevant factors. At p. 560 of the decision, Fennelly J. wrote:-
“I would certainly be prepared to accept that the Court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr. Rose were a substantive decision of the first respondent or of An Bord Pleanála to grant planning permission in spite of the degree of overlooking of the applicant’s property, in circumstances where the applicants had been on notice and whether or not they had objected, it would have been extremely difficult if not impossible to quarrel with it, still less judicially review it.
I believe, however, that Mr. Rose’s reasoning was flawed. He was, in reality, acting as if he was deciding whether permission should be granted. In considering whether the modified plans should be re-notified, he should rather have asked himself, in the circumstances of the application before the first respondent, whether some members of the public might reasonably wish to object to the plans as modified. …. Mr. Rose, by assessing the degree of overlooking without allowing for the possibility of objection, was effectively deciding, without hearing possible objectors, that there was no reasonable basis for objection. …
Mr. Rose’s planning expertise is undoubted. I consider rather that Mr. Rose, on behalf of the first respondent, excluded from his consideration the likelihood that the applicants would want to object and that, if they did, the first respondent would have had to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and irrational.”
3.8 The applicant further submitted that the respondent fell into fundamental error in considering the potential traffic impact of the gallops; The applicant submitted that as they contended that the gallops was an exempted development, it was incumbent on the respondent to rely on evidence that the gallops would, not could, give rise to adverse traffic impacts.
3.9 It was submitted by counsel for the applicant that the respondent applied the incorrect test in their analysis of whether the gallops was a de-exempted development under the restrictions provided for under Articles 9(1)(a)(i) and (iii) of the 2001 Regulations. Under these provisions, an otherwise exempted development is de-exempted and must seek planning permission:-
“(a) If the carrying out of such development would
(i) contravene a condition attached to permission under the Act or be inconsistent with any use specified in a permission under the Act …
(iii) endanger public safety by reason of traffic hazard or obstruction of road users.”
3.10 The applicant submitted that Article 9 requires that the carrying out of the relevant development would endanger public safety and the respondent in their second warning letter applied a “could” test. It was submitted that it was not open to the respondent to have issued the notice simply on the basis of information available to them that the development could endanger public safety by reason of a traffic hazard as provided in Article 9(1)(a)(iii).
3.11 It was submitted by the applicant that the respondent erred in reaching its decision to issue the notice in that they took into account matters which properly ought not to have been taken into account: in this respect they fell foul of the reasonableness test set out by the Supreme Court in Keegan v. Stardust Compensation Tribunal [1986] I.R. 642 where Finlay C.J. approved the “Wednesbury test” applied in the English Court of Appeal case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223 where at pp. 233 – 4 of that decision Lord Greene M.R. stated:-
“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.”
3.12 The applicant pointed out that a number of recent cases have adopted this approach in relation to the validity of various administrative decisions of statutory bodies. In Cork County Council v. Shackelton [2007] IEHC 241, Clarke J. held that it followed from the fact that a property arbitrator was carrying out a public law function that he was amenable to judicial review and that the ordinary rules of judicial review apply. At paragraphs 9.6 to 9.10 of the decision Clarke J. states:-
“9.6 In Radio Limerick One Limited v. Irish Radio and Television Commission [1997] 2 I.R. 291 Keane J. said the following:-
“Apart from those considerations, it would seem self evident that, if the exercise of the statutory discretion is grounded on an erroneous view of the law, it should not normally be allowed to stand. Thus, in the present case, if the only ground on which the Commission terminated the applicants contract was the carrying out of the outside broadcasts and they were wrong in law in treating as they did, those broadcasts as advertisement within the meaning of the Act, it is difficult to see how the decision could be described as “reasonable” either in the Wednesbury sense or on the application of the criteria proposed by Henchy J. in Keegan”.
9.7 It seems to me to follow that, where there has been a significant error in the interpretation of a material statutory provision leading to a decision of the property arbitrator being wrong in law, any such decision should, prima facie, be quashed.
…
An error, if an understandable one, in adopting an inaccurate construction of the section is, therefore, in my view a sufficiently fundamental matter which should lead to the quashing of the arbitrator’s determination.”
3.13 This approach was again endorsed by the High Court in McKernan v. EAT [2008] IEHC 40 where Feeney J. states at paragraphs 4.7 to 4.9:-
“This Court must therefore give consideration as to whether or not the decision of the Tribunal contained a significant error of a material matter leading to the decision. The Court must consider whether or not the decision of the Tribunal was grounded on an erroneous view of the law and whether the decision turned on an incorrect and wrong determination of a legal issue.”
The necessity of a link between the incorrect understanding of the law and a decision, is further illustrated in the case of Murphy v. Minister for Social Welfare [1987] I.R. 259 concerning the decision of a social welfare appeals officer, where Blayney J. held (at page 301):-
[The decision of the Appeals Officer] was based on a single ground, namely that the applicant was not employed under a contract of service. In the result it seems to me that the Appeals Officer did not understand correctly the law which he had to consider in coming to his decision, and it follows that his decision is vulnerable on the ground of illegality as understood in the sense explained by Lord Diplock in his judgment in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374 at 410. That approach clearly identifies the willingness of the High Court to quash decisions where there was an incorrect interpretation of the law which had to be considered and indeed in that case underpinned the single ground of the decision of the Appeals Officer.”
3.14 A considerable amount of technical material was presented by the respondent on the potential traffic impacts of the gallops, and the applicant, in turn presented further material to refute the respondent’s findings. The respondent argued that an earlier planning permission, which required that access to the equestrian centre should only be available through the western entrance, gives rise to a prohibition of any access to the equestrian centre at an eastern point in the site.
3.15 However, it was argued by the applicant that this planning permission was not taken into account by the respondent at the time of the issuing of the notice and that it is not appropriate for the respondent to seek retrospectively to “reconstruct” its position in relation to possible traffic impacts from the gallops. In this respect it was submitted that the Court should focus solely on the validity of the justification of the notice at the time of it being issued and not by reference to a recent traffic appraisal compiled after the issuing of the notice. It was submitted that at the time of the making of the decision to issue the notice, the respondent had no traffic information which would have given rise to an informed view that the gallops was not an exempted development under the 2000 Act and the 2001 Regulations. The report of the investigation of the respondent’s senior planning officer of the 15th June, 2009 stated that the potential obstruction of a right of way caused by the gallops was not at that stage “a clear cut issue”.
3.16 It was further argued by the applicant that any departure from the earlier planning permission is a stand alone matter for enforcement by the respondent and does not impact on the exemption applicable on the gallops. The applicant argued that it is not open to the respondent to retroactively bring the earlier planning permission into play as a basis for the disapplication of the exemption for the gallops.
3.17 Section 5 of the 2000 Act
Section 5 states as follows:-
“(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.”
The applicant submitted that the procedure under s. 5 of the 2000 Act would not provide an adequate remedy. Section 5, it was argued, does not allow the consideration of other issues relevant to the validity of the notice such as arise in these proceedings, and the outcome of a reference under s. 5 is confined to the making of a declaration concerning the planning status of a particular development and there is no proviso for granting relief to set aside an enforcement notice or to stay enforcement proceedings. In this respect the applicants argue that even following the section 5 route they could still be open to prosecution for failure to comply with the notice. Under s. 152 of the 2000 Act, a party who fails to meet its obligations under an enforcement notice is liable to prosecution and it is not open to the party in receipt of the enforcement notice to raise a defence that the development is exempted.
4. The respondent’s submissions
4.1 The arguments of the respondents are as follows:-
(a) The enforcement notice procedure is a stage in the process which, in general, is not amenable to judicial review unless the person attacking the decision can demonstrate a clear departure by the decision maker from his statutory remit.
(b) The applicant has other recourses to determine the issues in dispute which has not been exhausted and it is inappropriate that the Court should intervene to grant judicial review. Judicial Review is not an appropriate forum to determine whether a development is or is not exempted.
(c) The respondent also submitted that the applicant did not demonstrate that the decision to issue the notice was unreasonable, at variance with law or disproportionate to an extent which would justify the Court setting it aside. It was submitted that there was no maladministration by the respondent of the sort that would justify intervention.
4.2 In relation to judicial review of enforcement notices, the respondent referred the Court to the case of O’Connor v. Kerry County Council [1988] I.L.R.M. 660 where Costello J. stated as follows:-
“As to the issue of whether or not the development is exempted development, I think that the submissions made by Mr. O’Sullivan on behalf of the Council are correct, it seems to me that if the only issue which the Court is asked to decide is whether or not a development which has occurred is an exempted development, the Court in its exercise of its discretion should refuse an application for an order of certiorari. It seems to me that there is specifically provided for in section 5 of the 1963 Act (as amended), a procedure by which an issue of this sort can be determined by a body that is much more qualified to determine it than the court. There is provision under the section by which, if any question arises as to whether or not any particular development is an exempted development, the matter must be referred to and decided by the Planning Board. If a person on whom an enforcement notice is served objects to the notice on the grounds that the development is exempted development, it seems to me that he has a remedy in that he may apply to the Planning Board to determine the question. When matters of a technical nature are involved, as arises here, it is not appropriate that the Court should be asked to determine whether or not the development that is in issue is exempted or not. This is not, in my view, the proper function for an application for certiorari.”
4.3 The only exception which the judgment acknowledges is the case where it has been demonstrated that the Planning Authority deciding enforcement “has acted in a way that is so unreasonable in the decision that it took than an application for certiorari could or arise and be granted”. The respondent also referred the Court to the case of Flynn Machine and Crane Hire Limited v. Wicklow County Council [2009] IEHC 285 in which case the applicants were seeking a declaration of certiorari in relation to an enforcement notice. In refusing to fully quash the enforcement notice, O’Keeffe J. stated at paragraph 37 of his decision:-
“The decisions, the subject matter of this application are in general not amenable to judicial review unless the person attacking the decisions can demonstrate a clear departure by the decision maker from his statutory remit. Furthermore the onus lies on an applicant to establish that the respondent had no relevant material before it to support its decision, and in default of the applicant so establishing, this court can not reach a conclusion that the decision is irrational. See O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 38.”
The respondents submitted that there are few cases where judicial review is the appropriate forum to review a decision to issue an enforcement notice and this case is not within them.
4.4 It was submitted by the respondent that judicial review should not be a “dry run” for a section 5 reference or a defence of “no authorised development” in the event of a prosecution under the 2000 Act. The respondent argued that the issue of an enforcement notice is a stage in a process of planning enforcement and is not proof, in a prosecution for failure to comply, that the development is unauthorized. The onus is on the defendant to establish it is exempt. The respondent pointed to the fact that the applicant did not avail of the section 5 route at what they considered to have been the appropriate time, i.e. on receipt of the decision of the respondent on the applicant’s submission of the 1st April, 2009.
4.5 The respondents submitted that the reasons which were the basis for the decision to issue the notice, were justified either at the time of the decision or in retrospect when further facts came to light, in particular with respect to traffic issues. The respondent argued that the use of the gallops would result in the blocking off of the western entrance in contravention of the earlier planning permission. The respondent argues that these issues are matters to be taken up in the context of a section 5 reference and that the applicant has chosen an inappropriate venue to resolve them.
5. The Decision of the Court
5.1 The respondent argued that judicial review was an inappropriate form to decide the issue raised by the applicant namely the issuing of the enforcement notice. As seen above, the respondent argued that the correct route to follow was to seek a declaration under section 5 of the 2005 Act that the development is exempt. The respondent relies in this regard upon the decision in O’Connor v. Kerry County Council. It seems to me that the respondent is correct that it is not open to a court to declare whether or not a development is an exempted development under the 2000 Act unless it comes under the exceptions outlined by Costello J. in O’Connor e.g. if the Planning Authority has acted in a way that is so unreasonable in the decision that it took that an application for a declaration could arise and be granted. It seems to me that the real thrust of this application is that the court find the development is exempt.
5.2 The local authority are charged by the Oireachtas through the planning code to ensure that developments proceed in accordance with law. This necessarily involves investigation of possible breaches of the planning code. This investigation may naturally lead to suspicion and ultimately to a conclusion that a particular development is unauthorised. It is an ongoing process from investigation to suspicion to conclusion. Where the local authority suspects an unauthorized development may be in train, it is obliged to act and to do so promptly. This obligation in the circumstances prevailing herein was met by their firstly serving a warning letter on 6th of March. This letter reflected a suspicion that an unauthorized development was in train. The applicants subsequently made a submission on the 1st April which was considered by the respondent. It came to the conclusion that the development was not an exempt development and was therefore unauthorized. In the result, it issued its letter of 4th June, 2009 and later on the 16th June, 2009 an enforcement notice. It is to be noted that the work on this development continued after the service of the first warning letter of 6th of March. It goes without saying that this was a hazardous course for the applicants to follow. It was a course that showed scant regard for the role of the local authority and its role in determining the status of the development. It showed little understanding that ultimately it would be the Planning Authorities and not the development advisors who would decide what was or was not exempted development. The decision was made by the respondent to serve a notice which prevented use of the development rather than ordered its demolition. This was done, the respondents say, in order to provoke a dialogue with the developers. It is a great pity that dialogue did not take place. Had it taken place this matter would in all probability have been resolved long before now.
5.3 The applicants upon receipt of the enforcement notice proceeded to obtain leave to seek judicial review. The essence of their case is that the enforcement notice was based upon an inaccurate factual analysis of the development at a point before it was complete. They point to the enforcement notice describing the development as seeming more an actual race or exercise track and having metal railings in keeping therewith. The enforcement notice seemed based upon the conclusion the track had a hard rather than a soft surface. Finally the letter showed the local authority feared the development might give rise to traffic problems which was not grounded then upon any information available to the respondents.
5.4 It seems to me that this case falls to be decided upon the availability of a special statutory scheme to resolve disputes such as lie at the heart of this case. Firstly, however, I think it is appropriate to consider some of the factual matters relied upon by the applicant. It is well established that decisions reviewed by the courts must be looked at in their totality and in the context in which they are made. The view of the respondents expressed in their letter of the 4th June, 2009 that the development looked more like a race track or exercise track seems fully justified. The respondents were observing that in their view what was exempted development in the context of this development should be something that conformed to an enclosed paddock. Whether that is or is not correct or conclusive as to whether it is or is not an exempted development, is a matter for the planning authorities to conclude and not for the courts. Suffice it to note that from the photos provided it looks very much more like an exercise track than an enclosed paddock. The reference to metal railings when in fact they were plastic is trivial.
5.5 The Inspector seems on the evidence to have thought that tarmacadam was the final surface of this track. I accept this is wrong. The evidence shows that there was a final surface yet to be applied at the time when the Inspector reported.
5.6 Moreover within the context in which the respondents came to their decision to issue an enforcement notice, was the fact that the applicant’s development was in direct contravention of Condition 4 of an existing planning permission for this site. This condition was imposed to control traffic movement in and out of the site in question. Their duty in this type of situation is to ensure no danger to traffic arises from developments such as herein. The argument over whether the test was “could” or “would” pose a risk seems somewhat unreal. The respondent must ensure that any potential hazard to traffic is obviated and the time to do that is before accidents happen. Whilst an entirely remote possibility of such problems if relied upon per se might be open to challenge, that is far from being the case here. Clearly it was at least strongly possible more traffic would be generated. Further, it was undoubtedly the case that an existing condition specifically directed towards traffic control was being breached. To ask the Court to ignore that fact because it is a fact that came to light after the warning letters is to ask the Court to view the decision out of context. This the Court cannot do. On the factual side of things therefore it appears only the objection based upon the mistake concerning the final surface can stand. It is clear this was only one of a number of grounds for the enforcement notice to issue. The real thrust of the rationale of the local authority was the nature of the development and the surface issue was but one of the elements raising doubt in the respondent’s view of the development.
5.7 The section 5 application: as noted above this case in my view falls to be decided primarily on the applicant’s failure to utilise a remedy provided to deal with this exact situation. No satisfactory explanation has been forthcoming to explain the failure to do so. The judgment of Costello J. in O’Connor v. Kerry County Council [1988] I.L.R.M. 660 is particularly apt to this case:-
“It seems to me that if the only issue which the Court is asked to decide is whether or not a development which has occurred is an exempted development, the Court in the exercise of its discretion should refuse an application for an order of certiorari. It seems to me that there is specifically provided for in section 5 of the 1963 Act, as amended, a procedure by which an issue of this sort can be determined by a body that is much more qualified to determine it than the Court. There is provision under the section by which if any question arises as to whether or not any particular development is an exempted development, the matter must be referred to and decided by the Planning Board. If a person on whom an enforcement notice is served objects to the notice on the grounds that the development is exempted development, it seems to me that he has a remedy in that he may apply to the Planning Board to determine the question. When matters of a technical nature are involved, as arises here, it is not appropriate that the Court should be asked to determine whether or not the development that is in issue is exempted or not. This is not in my view the proper function for an application for certiorari.”
I gratefully adopt this statement of the law. Furthermore, it is also well established that where an alternative remedy exists, save for exceptional circumstances or where the decision made is clearly outside the relevant body’s jurisdiction, that alternative should be utilised.
5.8 It seems to me that the reasons offered against utilisation of a section 5 remedy are unsatisfactory. The fact that this procedure does not provide for setting aside an enforcement notice or staying enforcement proceedings does not mean that a prosecution will be continued notwithstanding an application being made to clarify the exempt or non-exempt status of the development. The respondent’s counsel herein stated quite correctly and properly in my view that, there being statutory provision (section 154)(ii)) for withdrawal of an enforcement notice, the failure of the local authority to do so following a section 5 determination in favour of the applicant would amount to maladministration. The continuance of any prosecution based on an enforcement notice whilst the very basis of that enforcement notice was before the authorities under a section 5 application would on that same logic in my view amount to maladministration save for exceptional circumstances. No such circumstances exist here. The applicant in a written submission handed in during the oral argument also argued that the work on site was already in train at the time of service of the first letter in March. Had they stopped then to apply under section 5 and subsequently had there been an appeal to Bord Pleanála, they would have had to discharge their contractor and would have missed all their deadlines for the year including readiness for the flat racing season. Owners might have withdrawn their horses and the business might have collapsed. They argued further that they were “lulled” into thinking all was well because they heard nothing from the 1st of April when their submission was made until the 4th of June when the second warning letter was served. By this time the works were complete and the gallops were in use.
5.9 In the first place the respondents could not have been aware of any development until it commenced. Thus the presence on site of a contractor, in the absence of a planning application, is always likely to be the first occasion that the local authority becomes aware of a development and can move to warn. The first letter put the applicant on notice there were serious concerns on the part of those charged with enforcing the planning code. It may well be that damage would flow from the applicant’s having to stop work while the exempt status of the development was clarified. Responsibility for this must rest however with those who sought to change the status quo as opposed to those duty bound to raise concern. As for proceeding with the work while the local authority considered their submission of 1st April, again responsibility for any damage thus sustained must rest with those who took the chance the authorities would determine the development was exempt. The second letter was issued nine weeks after the submission. It was not wise to assume a positive decision. The applicant admits the work carried on despite this risk and it is not unreasonable for the court to conclude the applicants wished to present the local authority with a fait accompli. I would consider that the obvious course of having the planning authority ultimately decide whether the applicant or the respondent were correct as to whether the development was exempt was the best and most appropriate course to follow. It appears to me it is a procedure specifically designed for the exact situation that emerged here. For these reasons I must refuse the reliefs sought.
Grianan an Aileach Interpretative Centre Co. Ltd. v. Donegal County Council
[2004] IESC 41 (15 July 2004)
THE SUPREME COURT
Keane C.J.
Murray J.
McGuinness J.
391/03
JUDGMENT delivered the 15th day of July 2004, by Keane C.J. [Nem Diss]
Introduction
These proceedings came before the High Court because of a dispute between the plaintiff / respondent (hereafter “the plaintiffs”) and the defendant / appellant (hereafter “the planning authority”). They raise a question of some importance as to the jurisdiction of the court to construe planning permissions, but before turning to that issue, I should set out the factual background to the case.
On the 17th December, 1998, the planning authority granted permission to the plaintiffs under the provisions of the Local Government (Planning and Development) Acts, 1963 / 1993, for a development described as the erection of a visitors’ centre, in accordance with plans submitted with the application for permission at Speenoge, Burt, Co. Donegal. The site of the development was a disused church located near an ancient monument known as the Grianan An Aileach. A previous permission had, it would seem, been granted in respect of the building, but neither the High Court nor this court were furnished with any details of that permission and we are solely concerned with the permission granted on the 17th December, 1998.
The terms of the permission of 17th December, 1998 which have given rise to the present dispute must now be set out in more detail. It was a permission for
“Erection of a visitors’ centre with history exhibition space, nature exhibition space, audio-visual theatre, craft shop, centre of intercultural activity, waiting area and associated facilities, plus outdoor pond and a sewage treatment system at Speenoge, Burt in accordance with the plans submitted with the application subject to the ten conditions set out in the Schedule attached.”
Condition 9 provided that
“Use of premises shall be restricted to uses indicated on submitted plans and for no other use without prior written agreement of the Planning Authority.”
The plans lodged with the application showed a building described as the “existing visitors’ centre” and a number of other buildings described inter alia as a “centre of intercultural activities”, a “nature exhibition”, a “history exhibition” and an “audio-visual theatre”.
It is also stated in the grant of permission that the permission would cease to have effect “in five years from the date of issue as regards any part of the development not completed by that date”. It is not in dispute that the development has not been fully completed, part of the audio-visual theatre and the greater part of the history exhibition area not having been built. It would also appear that the plaintiffs were granted a restaurant license and a public dancing license in respect of the premises.
The differences between the plaintiffs and the planning authority as to how the permission was to be construed first emerged when the plaintiffs, on the 26th March, 2002, sent the planning authority a schedule of events which it was intended to hold on the premises during the period March to August 2002. These included celebrations of various festivals, i.e. Easter, Bealtaine, the summer solstice and Lughnasada, themed banquets, an “open-house with session musicians from north and south”, a celebration of Queen Elizabeth’s golden jubilee, “themed banquets” celebrating Irish culture and a “themed American menu”. The planning authority in their response on the 11th April said that they considered the centre to be primarily a visitors’ centre for tourists to interpret the monument and the adjoining woodlands. While they accepted that the permitted uses extended to banqueting nights on special occasions, they were of the view that the programme of activities appeared to relate to regular weekly functions which were not envisaged by the permission. The plaintiffs expressed their concern that the attitude of the planning authority was creating serious financial problems for them and that, in particular, they were being threatened with the withdrawal of funding by An Bord Fáilte. The planning authority, however, maintained that the premises were being used in a manner not envisaged by the planning permission in a letter of the 14th May, 2002 where they said inter alia
“It has come to the attention of this Council that unauthorised development may have been, is being or may be carried out thereon, such unauthorised development being breaches of Condition 9 of the said permission (as to permitted uses of the premises), specifically uses as a concert venue, for weddings or other regular functions normally associated with a hotel or other entertainment venue and uses other than those which the Council has indicated would be acceptable …”
There was further correspondence, including a letter of the 29th July, 2002 from the solicitors for the plaintiffs enclosing an opinion of counsel to the effect that the uses in question were permitted by the planning permission. In further correspondence, the planning authority maintained their stance that uses generally associated with a concert / entertainment venue, nightclub, hotel, etc., were not, in their view, permitted. They advised the plaintiffs’ solicitors that, if such uses were contemplated, there should be a fresh application for planning permission.
In a letter of 18th November 2002, the plaintiffs informed the planning authority that they had obtained a dance licence and were now in a position, as they put it, “to develop our business”. They gave details of a number of proposed events under the heading “Nights of Intercultural Activities”, including music throughout the ages in New Orleans and the deep south of the US, an evening of Irish-Scots music, a Caribbean Christmas, a Victorian Christmas and a “themed Dickensian Christmas”.
The High Court proceedings
The planning authority had indicated in the course of its correspondence that, if the plaintiffs persisted in using the premises for purposes which, as the planning authority insisted, were not envisaged by the planning permission, enforcement proceedings would be issued. That did not happen, but on the 6th March, 2003, these proceedings were commenced by plenary summons, claiming the following declarations:
“1. A declaration that the plaintiff is entitled to use the land the subject matter of the application and the premises thereon situate in accordance with planning permission register reference number 98/2124.
2. A declaration that the building erected pursuant to planning permission register reference number 98/2124 may be used for activities in the nature of cultural activities and / or as a centre for intercultural activity.
3. A declaration that the centre can be used for the purposes of music and / or dancing and / or poetry / storytelling and is not limited solely to Irish cultural activities dating from the medieval period and can be used for cultural events from cultures other than those associated with Irish culture and / or cultural activities where there is a mix of Irish and other cultures.
4. A declaration prohibiting the defendant from taking any steps to prevent the use of the lands and premises known as Grianan An Aileach Interpretative Centre for the purposes set out in the submission to the defendant dated the 26th March, 2002.
5. A declaration prohibiting the defendant from taking any steps prohibiting the use of the lands and premises known as Grianan An Aileach Interpretative Centre, Speenoge, Burt, Co. Donegal for the purposes of nights of intercultural activities including the presentation of music throughout the ages in New Orleans and in the deep south of the United States, evenings of Scotch / Irish music celebrating in accordance with the University of Irish & Scots Music, music demonstrating the link between modern country music and Irish traditional music, celebration of intercultural pre-celtic feast of the winter solstice which would include a night of storytelling, song and dance, celebration of Spring including traditional dance from the Ulster Scots tradition Music poems, music from the Caribbean including folklore and food, music reflective of Victorian / Dickensian Christmas together with appropriate food from that era.
6. A declaration that the planning authority are not entitled to modify the uses that had been permitted by subsequent correspondence and that the planning permission authorises the use of the centre for intercultural activity.”
The plenary summons also claimed damages, “interim and / or interlocutory relief” and further or other relief.
A notice of motion was then served by the plaintiffs in which, in addition to an order in the same terms as Paragraph 5 of the general endorsement of claim, they also claimed
“1. An order prohibiting the defendant from taking any steps to prevent the use of lands and premises known as Grianan An Aileach Interpretative Centre for Intercultural Activity.
2. An order prohibiting the use of lands at premises Grianan An Aileach Interpretative Centre, Speenoge, Burt, Co. Donegal for the use as a concrete venue for music / dancing / poetry reading / storytelling and ancillary activities carried out in accordance with planning permission register reference number 98/2124 for which application was granted planning permission on the 17th of December, 1998.
3. An order prohibiting the defendant from taking any steps to prevent the use of lands and premises known as Grianan An Aileach Interpretative Centre for the purposes set out in the submission to the defendants dated the 26th of March, 2002.”
(The relief sought in paragraph 2 was presumably meant to be in the same form as that in paragraph 1.)
An affidavit grounding the application was sworn by Ms. Una Fullerton, a director of the plaintiffs, and a replying affidavit was sworn by James Harley, a senior planner with the planning authority. Those affidavits exhibited the planning permission and the correspondence to which I have referred and set out the respective positions of the plaintiffs and the planning authority. At the hearing of the motion before Kelly J., it was agreed that the hearing of the motion should be treated as the trial of the action, but the planning authority made it clear that they were resisting the granting of the relief sought, not merely on the ground that the uses in question were not authorised by the planning permission, but also because, as they submitted, the High Court had no jurisdiction to grant the relief sought.
It should also be pointed out that there was some oral evidence at the hearing in the High Court. This concerned a study entitled “Strategic Development and Marketing Plan for the Grianan An Aileach Interpretative Centre” which had been prepared by a body called Tourism Development International Ltd in December 1998. In the course of his written judgment, the trial judge concluded that the report in question had not come to the attention of the planning authority, that it could not properly be regarded as a planning document and that he should exclude it from his consideration of the case. Neither the plaintiffs nor the planning authority have sought to disturb that finding by the trial judge.
The High Court judgment
The trial judge set out in detail in his judgment the history of the matter. He pointed out that the dispute between the plaintiffs and the planning authority as to whether the various uses being made of the premises by the former were authorised by the planning permission had created considerable difficulties for the plaintiffs so far as the funding of the activities were concerned and that the plaintiffs contended that the only way in which these difficulties could be resolved were by these proceedings.
The trial judge then went on to consider seriatim the various reliefs claimed in the plenary summons. He had obviously little difficulty in deciding that the first and second declarations sought should not be granted, since the planning authority had never disputed the right of the plaintiffs to use the premises in accordance with the planning permission and for activities in the nature of cultural activities or for “intercultural activities”. As to the third declaration sought, he noted that the planning authority were not now contending that the premises could be used solely for Irish cultural activities. He also declined to grant the fourth and fifth declaration sought, observing that they were largely concerned with events for which permission had been sought in the past and refused. He commented that it would, in any event, be of limited use unless the events in the future were identical to those in the past. He also noted that the defendants were in any event objecting to a declaration of this nature on the ground that the activities envisaged would be in excess of what the planning permission allowed.
In the light of those difficulties, the trial judge invited counsel at the conclusion of the hearing to formulate a declaration which, as he put it, “would be of genuine benefit to both parties concerning the future use of the premises”. Counsel for the plaintiffs proposed the following:
“A declaration that the Grianan An Aileach Interpretative Centre may be used for the type of uses set out in the Schedule of Activities of the 26th March, 2000 and activities of a like nature but may not be used for non-cultural activity for example a nightclub and / or weddings or other such events of a like kind.”
The trial judge noted that counsel was no longer contending that the premises could be used for “weddings” or for “a nightclub”. As to the contention on behalf of the defendants that the court was being invited to resolve issues which were properly matters for the planning authority and An Bord Pleanala, the trial judge said
“In my view this is a case in which the court is entitled to grant a declaration as to the true meaning of the planning permission suitable. The declarations sought clearly relate to the legal rights and entitlements of the parties. It does not appear to me to be the case that the plaintiffs’ only choice is to either accept the defendants’ interpretation of what is meant by the planning permission or if in default proceed on a course of action which result in its being prosecuted or injuncted. I am of opinion that it was entitled to apply to this court for declaratory reliefs as to its entitlements.”
The trial judge then went on to consider what form of uses were authorised by the planning permission. Having noted that the permission clearly envisaged that there would be catering facilities on the premises, he concluded that food and drink could be served provided that it was “incidental and ancillary to the principal use”. He was of the view that, in the event of the provision of food and drink eclipsing the principal use, that would amount to a material change of use for which a fresh permission would be required. He was also of the view that the activities for which permission was sought in the plaintiffs’ schedule of events of the 26th March, 2002 and the events referred to in their letter of the 18th November, 2002 fell within the terms of the permission as granted. He considered that the fact that some of them were to occur on a regular weekly basis did not debar them from taking place once they were “cultural or intercultural”. His judgment concluded:
“In these circumstances I propose to grant a declaration that the plaintiffs’ Centre may be used for the type of uses set out in the schedule of activities of the 26th March, 2002 and the 18th November, 2002 and activities of a like kind including the service of food and drink ancillary to such cultural activities. The plaintiff may not use the centre for non-cultural activities and in particular may not use it for the holding of weddings or use it as a nightclub. Neither may the premises be used solely or primarily as a restaurant save with the permission of the defendant.”
The appeal to this court
The planning authority have now appealed to this court from the judgment and order of the High Court. In their written submissions, they again contend that the High Court had no jurisdiction to grant relief of this nature: alternatively, they submit that the trial judge was, in any event, in error in construing the planning permission as authorising the activities in question.
In their submissions in the High Court and again in this court, the planning authority relied on a general proposition that the issues which the High Court was being invited to resolve were of a planning nature which had been exclusively entrusted by the Oireachtas to the planning authority and An Bord Pleanala for resolution. Specifically, in this court, they relied on s. 5 of the Local Government (Planning and Development) Act, 2000 (hereafter “the 2000 Act”) which provides that a planning authority may declare what is or is not development or exempted development within the meaning of the Act and for a review of the planning authority’s decision by An Bord Pleanala. It was, however, accepted that this provision had not been drawn to the attention of the trial judge.
This court has made it clear on a number of occasions that, save in exceptional cases, it will not allow a party to raise an issue for determination in this court which was never raised in the High Court. In the present case, however, the jurisdiction of the High Court to grant the relief sought was expressly challenged and was the subject of elaborate oral and written arguments and of a reserved judgment. Where a particular argument relating to an issue adjudicated on in the High Court is advanced for the first time in this court, the court is not obliged, in my view, to have no regard to that argument in determining the appeal, particularly in a case, such as the present, where a point of general importance relating to the jurisdiction of the High Court has arisen for determination.
Submissions of the parties
On behalf of the planning authority, Mr. James O’Reilly S.C. submitted that, while the jurisdiction of the High Court to grant a declaratory relief was clear, as was the discretionary nature of that jurisdiction, there appeared to be no precedent for what he described as a “free-standing declaration” as to rights and obligations deriving from a planning permission which was not envisaged by the statutory code governing planning. He said that the appropriate course for the plaintiffs to have taken was to apply for permission for the activities in dispute or, alternatively, to refer the matter for determination to the planning authority under s. 5 of the Planning and Development Act, 2000. He said it was of some significance that the procedure whereby a determination of An Bord Pleanala under the repeals legislation could be appealed to the High Court had not been retained in the 2000 Act, reflecting, as he put it, the policy of the legislation that such issues should be exclusively determined by the planning authorities and, on appeal, An Bord Pleanala. He cited in this connection, the judgment of this court in O’Keeffe –v- An Bord Pleanala [1993] 1 IR 39 and the decisions of the High Court in McMahon –v- Dublin Corporation [1997] 1 ILRM 227 and Palmerlane Ltd –v- An Bord Pleanala & Anor [1999] 2 ILRM 514.
Mr. O’Reilly further submitted that the difficulties inherent in the High Court attempting to exercise a jurisdiction of this nature were illustrated by what had occurred in this case where the trial judge ultimately declined to grant any of the reliefs actually sought by the plaintiffs and granted a declaration which he had formulated himself after the submissions on behalf of the parties had concluded.
Mr. O’Reilly further submitted that the planning authority were perfectly entitled to conclude that the uses now being proposed by the plaintiffs reflected their intention to use the premises as an entertainment venue rather than as a centre of cultural and intercultural activity.
Mr. O’Reilly further submitted that the form of relief actually granted by the trial judge would inevitably give rise to difficulties which, presumably, could only be resolved by further proceedings in the High Court. Thus, while he apparently considered it appropriate to exclude the use of the premises for “weddings”, there was no express prohibition of social functions arising in other contexts and involving the provision of food, drink and dancing facilities. Nor was it clear as to where the line was to be drawn between “cultural” and “non-cultural” activities.
On behalf of the plaintiffs, Mr. Frank Callaghan S.C. submitted that s. 5 of the 2000 Act did not necessarily apply where what was in issue was whether particular uses were authorised by a planning permission. Even if the decision apparently to a contrary effect in Palmerlane Ltd –v- An Bord Pleanala was correctly decided, it did not necessarily follow that a person or body in the position of the plaintiffs was precluded from seeking declaratory relief in the High Court as to the proper construction of a planning permission. There was nothing in the wording of s. 5 or the other provisions of the 2000 Act to suggest that the jurisdiction of the High Court to consider such issues was being effectively ousted. He referred in this context to the decision of the House of Lords in Pyx Granite Company Ltd –v- Minister of Housing and Local Government & Ors [1960] AC 260 to the effect that the existence of analogous procedures under the corresponding English legislation did not effect an ouster of the jurisdiction of the courts and submitted that the same considerations applied in this jurisdiction, having regard to the constitutional right of access of the plaintiffs to the High Court.
Mr. Callaghan further submitted that the plans lodged with the application for planning permission clearly indicated that part of the site would be used for “intercultural activity” and it followed that it was envisaged that the centre could be used for events which would entertain as well as educate visitors to the centre. The planning authority, having gone no further than indicating that the use of the premises should be restricted to the uses shown on the submitted plans, were not entitled to impose additional limitations on the uses to which the visitors’ centre could be put. He further submitted that a planning permission should be construed having regard to the ordinary meaning of the expressions used and as they would be understood by members of the public without legal training, citing the decision of this court in XJS Investments Ltd –v- Dun Laoghaire Corporation [1998] 6 IR 750 and Readymix –v- Dublin County Council (unreported; judgments delivered 30th July, 1974). He said that so construed, the planning permission clearly envisaged the visitors’ centre being used for a relatively wide range of activities, including those which the planning authority sought to treat as excluded.
Conclusions
Section 5 of the 2000 Act provides inter alia as follows:
“(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2)(a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.”
Subsection 3(a) provides that
“Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to [An Bord Pleanala] of such fee as may be prescribed, refer a declaration for review by [An Bord Pleanala] within 4 weeks of the date of the issuing of the declaration.”
Subsection (4) provides that
“Notwithstanding subsection (1), a planning authority may, on payment to [An Bord Pleanala] of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by [An Bord Pleanala].”
Under s. 3(1), “development” means inter alia “the making of any material change in the use of any structures or other land”.
In the present case, the issue that has arisen between the plaintiffs and the planning authority is as to whether the proposed uses are authorised by the planning permission. I am satisfied, however, that, although the issue has arisen in that particular form, it necessarily requires the tribunal which determines it to come to a conclusion as to whether what is being proposed would constitute a material change in the use of the premises. If it would not, then the question as to whether the particular uses were authorised by the permission simply would not arise. In the present case, the planning authority have at all times been contending, in effect, that the proposed uses would constitute a material change in use which is not authorised by the present planning permission. Equally, for their part, the plaintiffs have been contending that the uses are authorised by the existing planning permission but have not contended that, if that were not the case, they would in any event be entitled to carry them out as not constituting a material change of use. It would seem to follow that the question as to whether planning permission is required in this case necessarily involves the determination of the question as to whether the proposed uses would constitute a “development”, i.e. a question which the planning authority and An Bord Pleanala are empowered to determine under s. 5 of the 2000 Act.
That conclusion is reinforced by the decision of the High Court in Palmerlane Ltd –v- An Bord Pleanala & Anor. In that case, the applicant had been granted a permission to use a premises as inter alia a retail shop. When the applicant began to use the premises as a shop on foot of the permission, it also used them for the sale of hot food for consumption off the premises. The planning authority subsequently took the view that this was an unauthorised use and issued a warning notice under the relevant legislation to the applicant. The applicant in turn submitted a reference under the corresponding section in the then applicable legislation to An Bord Pleanala. The Board declined to entertain the reference on the ground that it amounted to a request to them to construe the terms of the planning permission and was, accordingly, not a valid reference. The applicant then issued proceedings in the High Court by way of judicial review seeking a declaration that its submissions constituted a reference for the purposes of the legislation.
In her judgment, McGuinness J. pointed out that An Bord Pleanala accepted in that case that, if the sale of hot food had commenced subsequently to the grant of planning permission, a question would have arisen as to whether that constituted a material change of use: their rejection of the reference was exclusively based on the fact that the sale of hot food began at the same time as the use of the premises for a shop. McGuinness J. was satisfied that a broadly similar argument had been advanced to the High Court in McMahon –v- Dublin Corporation and rejected by Barron J. She considered view that that view of the law was correct and accordingly granted the relief sought. Clearly, as acknowledged on behalf of An Bord Pleanala in the Palmerlane case, this must also apply a fortiori where, as here, the disputed use did not begin at the time the permission was first implemented. The reasoning adopted in both McMahon and Palmerlane which, I am satisfied, is correct in law would indicate that, in such circumstances, a question as to whether the proposed uses constitute a “development” which is not authorised by the planning permission is one which may be determined under the 2000 Act either by the planning authority or An Bord Pleanala. In the present case the question is as to whether the various proposed uses which, the planning authority contend, would involve the regular use of the premises for events associated with a concert / entertainment venue rather than a visitors’ centre are in a planning context materially different uses from use as a visitors’ centre and the uses indicated on the lodged plan, in which case they would not be authorised by the planning permission.
It has been argued in this case that, even if the planning authority or An Bord Pleanala had jurisdiction to entertain such a reference, the High Court was not precluded from adjudicating on the proper construction of the planning permission where a dispute as to it had arisen between two parties with an interest in the matter, i.e. the plaintiffs and the planning authority. That submission, however, seems to me to be at odds with the approach which has been adopted in this court in recent years to legislation conferring jurisdiction in particular areas on courts and bodies other than the High Court.
Henchy J., delivering the judgment of this court in Tormey –v- Ireland [1985] IR 289, said that where parliament committed certain matters or questions to the jurisdiction of the District Court or the Circuit Court, the function of hearing and determining those matters and questions might, expressly or by necessary implication, be given exclusively to those courts. In Criminal Assets Bureau –v- Hunt [2003] 2 IR 1768, I made the following observations as to how that principle might be applied to tribunals and bodies other than courts:
“There is today in existence a huge range of tribunals and other bodies, of which the Appeal Commissioners in revenue cases are just one example, which determine matters in controversy between parties and whose functions and powers are properly categorised as ‘limited functions and powers of a judicial nature’ [within the meaning of Article 37.1 of the Constitution]. It is not uncommon for the legislation establishing such tribunals to provide for a limited form of appeal to the High Court from its decisions, usually confined to questions of law. However, in every case, the High Court retains its power under the Constitution to determine whether such bodies have acted in accordance with the Constitution and the law and such a jurisdiction cannot be removed from the High Court by statute. Subject to that qualification, it is clear, as was found in Tormey’s case, that the Oireachtas may confer on such bodies, expressly or by implication, an exclusive jurisdiction to determine specific issues.”
In considering whether the jurisdiction vested in the particular tribunal or body is an exclusive jurisdiction, the following observation of Henchy J. in Tormey –v- Ireland must be borne in mind:
“The jurisdiction to try thus vested by the Constitution in courts, tribunals, persons or bodies other than the High Court must be taken to be capable of being exercised, at least in certain instances, to the exclusion of the High Court, for the allocation of jurisdiction would otherwise be overlapping and unworkable.”
Thus, in the present case, if the jurisdiction of the planning authority or An Bord Pleanala under s. 5 were invoked and they were invited to determine whether the uses in controversy were within the uses contemplated by the planning permission or constituted a material change of use for which a new planning permission would be required, either of those bodies might find itself in a position where it could not exercise its statutory jurisdiction without finding itself in conflict with a determination by the High Court. No doubt a person carrying out a development which he claims is not a material change of use is not obliged to refer the question to the planning authority or An Bord Pleanala and may resist enforcement proceedings subsequently brought against him by the planning authority on the ground that permission was not required. In that event, if the enforcement proceedings are brought in the High Court, that court may undoubtedly find itself having to determine whether there has been a material change of use or whether a development is sanctioned by an existing planning permission, as happened in O’Connor –v- Kerry County Council [1988] ILRM 660. But for the High Court to determine an issue of that nature, as though it were the planning authority or An Bord Pleanala, in proceedings such as the present would seem to me to create the danger of overlapping and unworkable jurisdictions referred to by Henchy J.
The decision of the House of Lords in Pyx Granite Company Ltd –v- Minister of Housing and Local Government & Ors is, in my view, distinguishable from the present case. That was a case in which a company engaged in quarrying claimed to be entitled to carry it out under the provisions of a private and local Act of Parliament, i.e. the Malvern Hills Act, 1924. Since the relevant legislation in England provided that planning permission was not required for development authorised by local or private Acts, the company further claimed that they were not obliged to invoke the procedure under the planning legislation whereby the Minister of Housing and Local Government could determine whether planning permission was required. The Minister raised a preliminary objection to the court determining the company’s claim, on the ground that its jurisdiction had been ousted by the provisions of the planning legislation entitling the Minister to decide whether planning permission was required. That submission was rejected by the House of Lords on the ground that the right of a person to have recourse to the courts for a determination of his rights was not to be excluded except by clear words.
That, however, was a case in which the company claimed that they were not in any way affected by the provisions of the planning code, having regard to the provisions of the local and private Act of Parliament authorising their operations. One could well understand why that was thought to be an issue which could be resolved only by the courts. No such considerations arise in this case, where the plaintiffs are admittedly required to obtain planning permission for any operations which constitute “development” within the meaning of the 2000 Act and are not exempted development.
In the present case, the trial judge, quite understandably, was concerned to resolve issues which had been brought before the High Court in a manner which was fair to both the planning authority and the public interest which it represents on the one hand and the legitimate interests of the plaintiffs on the other hand. This resulted, however, in the granting of a declaration in a form which had not been sought by either party and which clearly creates further difficulties. Can it be said that the prohibition on “weddings” (presumably intended to exclude the social function which normally takes place in a hotel or restaurant following the wedding itself) extends to other social functions and, if so, how are they to be defined? Does the prohibition on “non-cultural activities” extend to every form of pop or rock concert? What precisely is meant by “use as a nightclub”?
Some responsibility may be attributed to the planning authority for the difficulties that have arisen in determining to what uses the premises may be put without a further planning permission: they might well have been avoided by the use of more precise language when the permission was being granted. I am satisfied, however, that the High Court cannot resolve these difficulties by acting, in effect, as a form of planning tribunal. As I have already indicated, if enforcement proceedings were brought in the High Court, that court might find itself having to determine whether particular operations constituted a “development” which required permission and the same issue could arise in other circumstances, e.g. where a commercial or conveyancing document containing a particular term dealing with compliance with planning requirements was the subject of litigation. But in every such case, however it came before the court, the court would resolve the issue by determining whether or not there had been or would be a development within the meaning of the planning code. The only circumstance in which the court could find itself making a declaration of the kind ultimately granted in this case would be where it had been drawn into a role analogous to that of a planning authority granting a permission. That is difficult to reconcile with the law as stated thus by Finlay C.J. in O’Keeffe –v- An Bord Pleanala:
“Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and [An Bord Pleanala] which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.”
I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiffs’ claim.
Friends of the Irish Environment Ltd v An Bord Pleanala
[2020] IESC 14 (23 April 2020)
THE SUPREME COURT
Record No. 2019/25
Clarke C.J.
O’Donnell J.
Dunne J.
O’Malley J.
Irvine J.
IN THE MATTER OF SECTION 50 OF THE PLANNING
AND DEVELOPMENT ACT, 2000
BETWEEN
FRIENDS OF THE IRISH ENVIRONMENT LIMITED
APPELLANT
AND
AN BORD PLEANÁLA
RESPONDENT
P. PLUNKETT LIMITED, WESTMEATH COUNTY COUNCIL,
CAVAN PEAT LIMITED, HARTE PEAT LIMITED, NANCY HENNESSY,
EAMONN CREGGY, MICHAEL BRADY, JOHN PATRICK MURTAGH,
JOHN REILLY, PÁDRAIG HILL AND CLOVER PEAT
NOTICE PARTIES
Judgment of Ms. Justice Dunne delivered on the 23rd day of April 2020
Background
1. This is a leapfrog appeal from the High Court judgment delivered by Meenan J. on 9th March, 2018. The pertinent facts (as summarised by Meenan J. in his judgment) are that the appellant herein (who is a limited company with objectives including the protection of the Irish environment) (hereinafter referred to as “FIE”) became concerned about peat extraction in Ireland. FIE maintains that under both domestic legislation and European Union law, certain peat extraction works do not constitute “exempted developments” and thus require planning permission. FIE also maintains that certain peat extraction works require an Environmental Impact Assessment (hereinafter “EIA”) and an Appropriate Assessment (hereinafter “AA”), pursuant to the legislation.
2. FIE, by letter dated 21st August, 2010 referred certain peat extraction works in the townlands of Lickny/Newcastle, Doon, and Carlanstown, County Westmeath, under s. 5 of the Planning and Development Act 2000 (hereinafter “the Act of 2000”) to the appropriate planning authority (in this case Westmeath County Council). The purpose of the referral was to seek a determination as to whether such peat extraction activities were or were not indeed “exempted development”.
3. Westmeath County Council considered the referral and in turn referred the matter to An Bord Pleanála (the respondent herein, hereinafter referred to as “the Board”) on 24th November, 2010. The Board sought additional information from Westmeath County Council concerning the “name and address of the owner of the land in question and the name and address of the occupier of the said land, if different”. Westmeath County Council then provided some thirteen Land Registry folios which indicated that some nine parties were involved in the ownership of the lands at issue. An examination of the maps attached to the Land Registry folios showed that the lands contained numerous subdivisions. The Board then wrote to the nine individuals referred to in the various Land Registry folios but the responses did not advance to any extent the Board’s knowledge of the relevant owners/occupiers. Indeed in some cases there was no response.
4. It appears that in the course of this process, the Board kept FIE informed of its efforts to identify the relevant owners/occupiers but this did not assist any further in adding to the Board’s knowledge of the identity of the relevant owners/occupiers.
5. Following investigations and the preparation of an inspector’s report, the respondent issued its decision on 3rd May, 2013, dismissing the referral and (as quoted by Meenan J. at para 23) saying that:
“…Having regard to the different parcels of land identified in this referral, which appear to be in multiple ownership, in varying size of individual holdings with numerous parties involved and in the absence of certainty in regard to ownership of the land or the individual circumstances of the plots (not necessary adjoining), it is considered that the question is (sic) referred is not sufficiently particular or detailed enough to enable the Board to carry out its obligations under s. 129 of the Planning and Development Act, 2000, (as amended). Furthermore, the diversity of circumstances involved militated against a thorough evaluation of the referral question as posed. In light of the forgoing, the Board decided to dismiss this appeal…”
6. FIE thereafter sought an order of certiorari quashing the determination made by the Board. In considering the issues raised by both parties, at paras 28 to 30 of the High Court judgment Meenan J. said:
“28. What is in issue in these proceedings is the determination made by the respondent based on the information it had. The respondent submitted that it was best placed to assess whether it had the information necessary to make a determination and also to comply with its legal obligation to follow fair procedures, in particular, to hear from those who may be affected by the determination.
…
29. The problem facing the respondent in reaching its determination was that, regardless of the fact that the lands could be identified, the relevant owners/occupiers could not to the extent that it would have been unsafe for the respondent to make a determination concerning the property rights of those involved. In previous paragraphs, I have set out the steps taken by the respondent to identify such persons.
30. In applying the principles set out in the authorities referred to, it is clear to me that I cannot conclude that the decision of the respondent to dismiss the referral was either irrational or unreasonable. Given the absence of information as to who owned and/or occupied the lands in question and the basic legal requirement that such persons be on notice of the referral, I cannot reach any other conclusion.”
7. At para 37, Meenan J. dealt with the FIE’s submission that the Board failed in its statutory duty under s. 138(2) which requires the respondent to “state the main reasons and considerations on which the decision is based” by saying:
“37. It is well established that a body, such as the respondent, in giving reasons is not ‘bound to provide a discursive judgment as a result of its deliberations’. (see the decision of Murphy J. in O’Donoghue v An Bord Pleanála [1991] ILRM 750).”
At para 38, Meenan J. concluded:
“The basis on which the respondent reached its determination is clear to me. I have set out at para. 23 above the ‘reasons and considerations’ for the determination. This refers to, succinctly, problems in identification of the individuals who owned and/or occupied the lands involved. Furthermore, as stated above, the applicant was fully aware of the problems which the respondent encountered in seeking to identify the persons whom it was obliged to put on notice of the referral. Therefore, I cannot conclude that there was any failure on the part of the respondent, in the words of the s. 138(2) of the Act of 2000, to state ‘the main reasons and considerations on which the decision is based’.
8. In a judgment delivered on 7th December, 2018 Meenan J. considered an application to certify for appeal three questions of law. The questions were set out at para 6 of the judgment:
“(i). [To] what extent, if any, must An Bord Pleanála take into account the requirements of Article 2(1) of the EIA Directive in exercising its discretion under s. 5 of the PDA 2000 and/or its powers under s. 250(1)(d) and/or s. 250(7)?
(ii). By what criteria are matters of ‘planning judgment’ to be identified? In particular, do matters of fair procedures come within that concept?
(iii). Where the Board decides not to exercise its powers under s. 250(1)(d) and/or s. 250(7) is it obliged to give any reason for not doing so?”
9. In declining to certify the questions, Meenan J. said at para 13 of his judgment that he was satisfied that the decision of the Court “…has not involved any point of law of exceptional public importance.” He said that the Court reached its decision by applying well established principles to the facts of the case. It was under those circumstances that FIE applied for leave to appeal directly to the Supreme Court.
10. The Supreme Court Determination states that FIE notes that in the judgment refusing the relief sought herein, the High Court referred to and relied on the decision in the case of Kinsella v. Dundalk Town Council [2004] IEHC 373 to support the Board’s argument that it was best placed to assess whether it had the information necessary to make a determination. This gives rise to what is stated to be a question of “curial deference”. On the other hand, the Board points out, inter alia, that it was faced with difficulties in identifying the owners/occupiers of the lands in question and thus, having regard to the “fair procedures rights” of the owners/occupiers, it was appropriate to exercise its discretion to dismiss the referral.
11. Para 9 of the Determination granting leave to appeal identifies the issue of general public importance in the following way:
“…the issue raised by the applicant is one of general public importance in relation to the steps required to be taken to identify the owners/occupiers of the lands in question and whether or not the High Court was correct to afford curial deference to the Board in its approach to the undoubtedly difficult question of identifying the relevant owners/occupiers of the lands in question.”
12. Irvine J., in a judgment ([2019] IESC 53) delivered on 26th July, 2019 refined the scope of the appeal to the questions of curial deference and the proper interpretation of s. 5 of the Act of 2000 and the other provisions applicable thereto in light of the State’s obligations under Article 2(1) of the Environmental Impact Assessment (EIA) Directive. The relevant part of the judgment is set out later on in the course of this judgment.
The parties’ submissions
13. In arguing that the High Court erred in law in dismissing the application and requesting this Court to allow the appeal and grant an order of certiorari quashing the Board’s decision of 3rd May, 2013 FIE advanced a number of arguments, including the contention that the Board possesses the means to overcome the perceived difficulties. Accordingly, it is its submission that the High Court afforded an overly high level of curial deference to the “opaque process” by which the Board made its decision. FIE also argues that those matters which the Board failed to address are not matters of special skill, competence and experience in planning matters but matters of law and that such powers were afforded to it by the Oireachtas in full expectation that they would be used. FIE says that the respondent also failed to address its mind to s. 250 of the Act of 2000 or to the powers of inquiry contained within the Act. It is also contended that the High Court could not have known from the Board’s decision why it had not exercised the s. 250 powers or the investigative powers and that to conclude that the Board’s decision on these issues was in some way “reasonable” was to afford unjustifiable deference, because the Court did not know what reasons (if any) the Board had. FIE contends that there was no logical process to defer to and that the substantive issue before the Board was an issue of EU law, namely, did the extraction of peat on the identified lands require development consent and an EIA or AA under the relevant Directives? The Board was, according to FIE, obliged under European law to take, within the sphere of its competence, all the general or particular measures necessary to ensure the object of the Directive was fulfilled and in failing to address and correctly interpret and apply the powers available in the Act of 2000 to overcome the perceived difficulties, it breached its European law obligations.
14. In the alternative to requesting this Court to allow the appeal and grant an order of certiorari quashing the Board’s decision of 3rd May, 2013 FIE asks the Court to consider making an Article 267 reference along the following lines: whether it is compatible with the State’s obligations under Article 2(1) of the EIA Directive for a s. 5 determination in respect of an Annex I or II project to be denied without adjudication on grounds of insufficient information or difficulties of service without recourse to the powers available under domestic law in that regard.
15. The Board, in the submissions to this Court, argues inter alia that in relation to the issue of curial deference, FIE has not identified in a clear manner how it alleges the High Court erred in its application of the doctrine. Secondly the respondent contends that the Court is simply not as well placed as the Board to make the type of assessment this case concerns and that this is consistent with the established principle that the decision-maker is best placed to assess whether it has sufficient information to perform its task. The Board contends that before it can exercise its planning judgment, it needs to make sure that it has adequate information to do so, and that is an assessment of fact and degree which is informed by the Board’s understanding of what information it requires to perform its task. Thirdly, the Board argues that FIE places some reliance on the need for proportionality where fundamental rights are at play and the Board makes a number of observations in response. The Board says it is not immediately clear what fundamental rights of FIE are said to have been adversely affected by the Board’s decision, particularly in circumstances where the Board determined the issue of principle in FIE’s favour in parallel s. 5 referrals made by it. The Board also says that in any event, to the extent that proportionality does come into play in the review of the decision of an expert body such as the Board, it tends to support the approach adopted by the Board. The fundamental property rights and entitlement to fair procedures of the unidentified owners/operators were at stake, and, in those circumstances, the Board’s decision to dismiss the referral represented a proportionate balancing of interests and to have proceeded to determine the referral without notice to some of the affected parties would have been disproportionate. Fourthly, the Board contends that this is not, in any event, an appropriate appeal in which to reconsider the scope of the doctrine of curial deference. This is because, on the facts, even if the Supreme Court were to hold that the High Court Judge should have been prepared to substitute his own view of whether the Board had adequate information, the appeal would not succeed (because Meenan J. indicated his view that the Board’s approach was not only reasonable, but that it was correct.)
16. Regarding the issue of the inter-relationship between Article 2 of the EIA Directive and the proper interpretation of section 5 of the 2000 Act, the Board argues inter alia that pursuant to the judgment of Irvine J. of the 26th July, 2019 on the issue of the scope of this appeal, the appellant is entitled to rely on Article 2 only insofar as it concerns the question of the proper interpretation of sections 5 and 250 of the 2000 Act. The respondent contends that the appellant is not permitted to advance any stand-alone argument or point alleging a breach of EU law.
17. I will refer further to the parties’ submissions in the course of this judgment.
The legislative framework
18. Turning now to the legislative framework, it is s. 5 of the Act of 2000 which allows the public to seek declarations as to what, in any particular case, is or is not “development” or “exempted development”. Section 5 provides:
“(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2)(a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.
(b) …
(c) A planning authority may also request persons in addition to those referred to in paragraph (b) to submit information in order to enable the authority to issue the declaration on the question.
(3) …
(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.”
Section 6 provides:
“A planning authority and the Board shall each have all such powers of examination, investigation and survey as may be necessary for the performance of their functions in relation to this Act or to any other Act.”
Section 129 provides:
“(1) The Board shall, as soon as may be after receipt of an appeal or referral, give a copy thereof to each other party.
(2)(a) Each other party may make submissions or observations in writing to the Board in relation to the appeal or referral within a period of 4 weeks beginning on the day on which a copy of the appeal or referral is sent to that party by the Board.
(b) Any submissions or observations received by the Board after the expiration of the period referred to in paragraph (a) shall not be considered by the Board.
(3) Where no submissions or observations have been received from a party within the period referred to in subsection (2), the Board may without further notice to that party determine the appeal or referral.
(4) Without prejudice to section 131 or 134, a party shall not be entitled to elaborate in writing upon any submissions or observations made in accordance with subsection (2) or make any further submissions or observations in writing in relation to the appeal or referral and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.”
Section 131 provides:
“Where the Board is of opinion that, in the particular circumstances of an appeal or referral, it is appropriate in the interests of justice to request—
(a) any party to the appeal or referral,
(b) any person who has made submissions or observations to the Board in relation to the appeal or referral, or
(c) any other person or body,
to make submissions or observations in relation to any matter which has arisen in relation to the appeal or referral, the Board may, in its discretion, notwithstanding section 127 (3), 129 (4), 130 (4) or 137 (4)(b), serve on any such person a notice under this section—
(i) requesting that person, within a period specified in the notice (not being less than 2 weeks or more than 4 weeks beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter in question, and
(ii) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the Board will, after the expiration of that period and without further notice to the person, pursuant to section 133, determine the appeal or referral.”
Section 138 provides:
“(1) The Board shall have an absolute discretion to dismiss an appeal or referral —
(a) …
(b) where, the Board is satisfied that, in the particular circumstances, the appeal or referral should not be further considered by it having regard to —
(i) the nature of the appeal (including any question which in the Board’s opinion is raised by the appeal or referral), or
(ii) any previous permission which in its opinion is relevant.”
The Board is obliged to give reasons for dismissing a referral by s138(2):
“A decision made under this section shall state the main reasons and considerations on which the decision is based.”
Section 250 provides:
“(1) Where a notice or copy of an order is required or authorised by this Act or any order or regulation made thereunder to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her in one of the following ways—
(a) where it is addressed to him or her by name, by delivering it to him or her;
(b) by leaving it at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter addressed to him or her at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(d) where the address at which he or she ordinarily resides cannot be ascertained by reasonable inquiry and the notice or copy is so required or authorised to be given or served in respect of any land or premises, by delivering it to some person over the age of 16 years resident or employed on the land or premises or by affixing it in a conspicuous place on or near the land or premises;
(e) in addition to the methods of service provided for in paragraphs (a), (b), (c) and (d), by delivering it (in the case of an enforcement notice) to some person over the age of 16 years who is employed, or otherwise engaged, in connection with the carrying out of the development to which the notice relates, or by affixing it in a conspicuous place on the land or premises concerned.
(2) Where a notice or copy of an order is required by this Act or any order or regulation made under this Act to be served on or given to the owner or to the occupier of any land or premises and the name of the owner or of the occupier cannot be ascertained by reasonable inquiry, it may be addressed to “the owner” or “the occupier”, as the case may require, without naming him or her.
(3) …
(4) Where a notice or copy of an order is served on or given to a person by affixing it under subsection (1)(d), a copy of the notice or order shall, within two weeks thereafter, be published in at least one newspaper circulating in the area in which the person is last known to have resided.
(5) …
(6) …
(7) Where the Minister or the Board is satisfied that reasonable grounds exist for dispensing with the serving or giving under this Act or under any order or regulation made under this Act of a notice or copy of an order and that dispensing with the serving or giving of the notice or copy will not cause injury or wrong, the Minister or the Board may dispense with the serving or giving of the notice or copy and every such dispensation shall have effect according to the tenor thereof.”
The lands at issue
19. The trial judge in his judgment described the lands at issue (see para. 9). He noted that FIE in its referral under s. 5 of the Act of 2000 to Westmeath County Council referred to peat extraction:
“…in the townlands of:-
‘1 Lickny (Newcastle) (see map 1);
Doon (see map 2);
Carlanstown (see map 3) …”
20. The areas concerned were simply delineated on the maps and no additional information as to who the owners/occupiers of the lands might be was provided. The trial judge noted at para 11:
“The three sites in question are not adjoining, although the townlands in which they are located are. Each site is substantial, the Lickny/Newcastle site comprises approximately 100 hectares, the Doon site comprises approximately 60 hectares and the Carlanstown site comprises approximately 7 hectares.”
21. The reference to Carlanstown lands comprising 7 hectares appears to be a typographical error as it has approximately 70 hectares.
22. The matter having been referred to the Board, the Board entered into correspondence with Westmeath County Council with a view to establishing the identities of the owners/occupiers of the lands in question. Some 13 Land Registry folio maps were provided identifying some nine parties involved with the lands. However, as the trial judge noted, the folio maps showed numerous subdivisions of the land and as he said at para 14:
“…Each subdivision may have a different occupier engaged in the extraction of peat.”
23. Correspondence then ensued with the nine parties involved with the lands and FIE was kept informed by the Board as to its efforts to identify the relevant owners/occupiers. The trial judge noted at para 20 of the judgment:
“By reason of the foregoing, it seems to me that in dealing with the referral under s. 5 of the Act of 2000, the respondent was faced with a number of difficulties:-
i. Those who may be affected by the determination of the respondent were entitled to be heard, i.e. owners/occupiers of the lands in question;
ii. The identities of the owners/occupiers were difficult to ascertain. The maps provided by the applicant were only a start point. There was more detailed information available in the various Land Registry folios and folio maps but this still did not yield all the necessary information;
iii. There was a potential legal issue in that s. 5(4) refers to a ‘particular case’ whereas what was before the respondent were three separate parcels of land.”
24. The trial judge also concluded that the problem of identifying the owners/occupiers could not have been resolved by affixing a notice on the lands under the provisions of s. 250(1)(d) of the Act of 2000 or by simply dispensing with the need to give notice. He concluded in this respect at para. 34 of his judgment:
“The affixing of a notice “on or near the land” involved may be suitable where the respondent is dealing with a particular portion of land or structure but not in the situation that presents from the folio maps in question. Therefore, I do not think it unreasonable that a course of action, such as that submitted by the applicant, was not followed by the respondent.”
25. Finally, it should be observed that while it appears that some of the land concerned in the reference comprised registered land, not all of the land is registered land. A significant amount of the land at issue is unregistered land. Some 167 hectares was registered land and reflected in the folios exhibited and apparently one of the registered owners of the lands at Doon (Clover Peat Products Ltd.) also owned some 232.75 hectares of unregistered land. A map exhibited in the course of the proceedings (relating to the townland of Derrycrave) showed a number of narrow strips of land apparently utilised by local farmers, thus highlighting the difficulty of identifying those who may be in occupation of the lands in question.
Curial deference
26. The first issue I propose to consider is the issue of curial deference. I have already set out the terms of the decision of the Board and the reason given by the Board for dismissing the referral, namely, the lack of particulars or details as to the ownership/occupation of the lands at issue, given the “diversity of circumstances” involved.
27. The provisions of s. 129 of the Act of 2000 are set out above. Under s. 129, the Board is obliged to furnish a copy of the referral “to each other party”. This is to enable “each other party” to make submissions on the referral. “Party to an appeal or referral” in the case of a referral under s. 5 is defined in s. 2(1)(c) as being:
“(c) In the case of a referral under section 5, the person making the referral, and any other person notified under subsection. (2) of that section,
. . .
‘and party’ shall be construed accordingly.”
28. Section 5(2) of the Act of 2000 is set out above and refers in that context as can be seen to “the owner and occupier of the land in question”. FIE, in the course of its submissions refers to the fact that service on the owner and occupier is only required where appropriate and also refers to the provisions of the Registration of Title Act 1964 as to the conclusiveness of the register in relation to title to the property and any rights, privileges, appurtenances or burdens appearing on the title. Reference was made to the provisions contained in the Act of 2000 in relation to the question of service, namely, s. 250 of the Act, to which further reference will be made in the course of this judgment and it was pointed out that in certain cases, where the “name of the owner or of the occupier cannot be ascertained by reasonable inquiry”, it may be addressed to “the owner” or “the occupier” as the case may be without naming him or her.
29. Reference was made to other powers contained in the Act of 2000 which might have been deployed by the Board to overcome the difficulties in ascertaining the identities of the owners and occupiers of the lands in question. It is in this context that FIE makes the argument that the decision of the Board did not give any explanation as to why it did not avail of these provisions and consequently it is argued that the absence of such an indication is of relevance to what is described as the deference extended to the decision of the Board to dismiss the referral. The implication is that the High Court afforded undue curial deference to the decision of the Board in dismissing the referral.
30. The submissions of both parties contain references to a number of academic considerations of the topic of curial deference and to a number of decided cases in which the topic is discussed. Both parties are broadly in agreement as to the relevant case law in respect of curial deference. It would be appropriate to refer to some of the academic commentary and the case law in this area.
31. Hogan, Morgan and Daly in Administrative Law in Ireland (5th edition) at paras 17-108 et seq. discuss the topic in some detail, tracing the modern law in this area back to the decision of this court in O’Keeffe v An-Bord Pleanála [1993] 1 IR 39 in which Finlay C.J. said at pages 71-72 as follows:
“…the circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare. It is of importance and, I would think, of assistance to consider not only as was done by Henchy J in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 the circumstances under which the court can and should intervene, but also… the circumstances under which the court cannot intervene.
The court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.
…the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.
I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.”
32. It was acknowledged by FIE that the Board does have specialist skills and expertise but it is contended that it is the Board’s failure to apply that specialist skill and expertise that is the source of the dispute.
33. It would be useful to refer to some of the academic commentary and authorities relied on by FIE. The observation made by Delany in an article entitled “Curial Deference in the Context of Judicial Review of Administrative Action” (2013) Irish Jurist 49 (1) 29 – 48 is cited where it was said at p 29:
“The debate about curial or judicial deference is of fundamental importance to achieving the correct balance between the respective roles of the legislature, executive and judiciary. At a broad level, the question of the circumstances in which judges ought to exercise restraint is an issue of crucial significance that cuts across most areas of public law and to an extent, across aspects of private law too. It is an issue which has provoked considerable controversy, particularly in relation to the circumstances in which the courts should defer to decisions of administrative bodies.”
34. In addition, some well-known passages from the case law were set out. Thus, the court was referred to the observations of Clarke J. (as he then was) in Sweetman v An Bord Pleanála, [2008] 1 IR 277 at para 6-12:
“…it is important to remember that a court, in judicial review proceedings, is not confined to the irrationality test identified in O’Keeffe… That is but one ground which can be advanced. A court is also entitled (and indeed is duty bound) to consider matters such as whether the decision maker had regard to factors which ought not properly have been included in the consideration or failed to have regard to factors which should properly have been considered. O’Keeffe v. An Bord Pleanála irrationality only arises in circumstances where the decision maker properly considered all of the matters required to be taken into account and did not take into account any matters which should not. The limitations inherent in the O’Keeffe v. An Bord Pleanála irrationality test, therefore, only arise in circumstances where all, but only, those matters properly considered were taken into account and where the decision maker comes to a judgment based on all of those matters. It is in those circumstances that the court, by reason of the doctrine of deference, does not attempt to second guess the judgment of the person or body concerned provided that there was material for coming to that decision. In particular the court does not attempt to re-assess the weight to be attached to relevant factors.”
35. The case of Harding v Cork County Council (No. 1) [2006] 1 IR 294 (hereinafter referred to as “Harding”) was also referred to. In that case, Kelly J. (as he then was) stated at par. 32:
“…In view of the fact that I have already held that there are serious issues for trial which are properly within the jurisdiction of this court on judicial review I have, in effect, held that such complaints are not matters appropriate to An Bord Pleanála. These points relate to vires, fair procedures and bias and they should properly be determined by a court rather than by An Bord Pleanála. If I had been of the view that all of the matters raised were capable of determination by An Bord Pleanála then I might have been prepared to make the order but I am not.”
36. Harding was said to be in contrast to the decision in the case of Kinsella v Dundalk Town Council [2004] IEHC 373 where Kelly J. made the following statement which was referred to by the trial judge (at para. 28 of his judgment):
“The decision as to whether the information obtained on foot of an article 33 request contains significant additional data is one for the planning authority… This Court, in exercising its judicial review jurisdiction, is not a court of appeal on the merits from the exercise by a planning authority of its statutory function. I decline the invitation extended to me by counsel for the applicant to sit in the chair of Mr. Ewbanks and decide for myself whether or not the information supplied by Coverfield on foot of the article 33 request contained significant additional data. He contends that I would be in just as good a position as Mr. Ewbanks to make such a decision…”
37. In truth, I find it difficult to see any contrast between the observations of Kelly J. in the two passages referred to. In each case, Kelly J. was identifying the role of An Bord Pleanála on the one hand and the role of the Court on the other hand. Thus, as he said, it was not the function of the Court to step into the chair of the planner nor was it the role of the Board to take on the role of the Court in relation to such issues as vires, fair procedures etc.
38. A number of other citations were referred to in the course of the submissions from judgments such as North Wall Property Holding Company v Dublin Docklands Development Authority [2008] IEHC 305, EMI v Data Protection Commissioner [2013] 2 I.R. 669, Efe v Minister for Justice [2011] 2 IR 798 and Meadows v Minister for Justice [2010] 2 IR 701 which considered how the principle of proportionality might be addressed in considering the reasonableness of a decision of an administrative body. It is not necessary to set these out in detail in this judgment, but I would like to refer briefly to one passage from the judgment of this Court in Connelly v An Bord Pleanála [2018] 2 ILRM 453, [2018] IESC 31 where Clarke C.J. stated at para 5.4: “…One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account and all irrelevant factors are excluded from the consideration. It is useful, therefore, for the decision to clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the decision is challenged, as to whether those requirements were met. But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other. That does not enlighten any interested party as to why the decision went the way it did. It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons.”
39. It is contended on behalf of FIE that the development of the law relating to the provision of reasons for a decision since O’Keeffe must be taken into account in any application of curial deference. Further, it was argued that curial deference cannot justify a decision-maker’s failure to demonstrate that it has asked itself the right questions or to give satisfactory reasons for a particular course of action or inaction. In essence, FIE contends that the High Court showed undue curial deference to the decision of An Bord Pleanála in rejecting the reference.
40. The Board, in its submissions, takes no issue with the extracts from academic commentary and case law relied on by FIE on the subject of curial deference, some of which is referred to above. Rather, it makes the point that that it is difficult to see how reliance on the issue of curial deference can avail FIE in relation to this appeal. The Board accepts a number of propositions derived from case law that matters such as the interpretation of statutory provisions, the interpretation of a development plan, questions as to whether there has been a breach of fair procedures and whether a decision has been vitiated by bias are all matters in which a court has full powers of review and is not required to show curial deference to the view of the decision-maker. The Board also agreed with the statement of Clarke J. in Sweetman v An Bord Pleanála referred to above. It was noted by the board that FIE appears to accept, as set out in the judgement of Denham J. in Meadows v Minister for Justice, Equality and Law Reform referred to previously, that the O’Keeffe principles still apply “…where the review is of a decision of a technical or skilled or professional decision maker in the area of that special technical or skilled knowledge” (para 143).
41. However, the Board takes issue with the submissions of FIE on the subject of curial deference where it was contended by FIE that “curial deference cannot justify a decision maker’s failure to demonstrate that it has asked itself the right questions, or to give satisfactory reasons for a particular course of action or inaction”. The Board makes the point that the questions of whether the decision maker asked itself the right questions and the adequacy of its reasons are distinct grounds of judicial review from the question of the reasonableness of the decision and the extent to which the standard by which its merits may be reviewed.
42. The Board then went on to make a number of distinct points in relation to the arguments of FIE in relation to curial deference. The first point made is that FIE has not made clear how it is alleged that the High Court misapplied the doctrine of curial deference. Secondly, insofar as it could be said that the High Court employed language of curial deference when it was stated (at para 30) “…I cannot conclude that the decision of the respondent to dismiss the referral was either irrational or unreasonable”, this was not a “pure” exercise of planning judgment, rather it was the Board expressing its view as to whether or not it had adequate information with which to perform its task. The Board made the point that the Court is not in as good a position to make this assessment as the Board. Third, the Board noted the emphasis placed by FIE on the judgment of Fennelly J. in Meadows on the need for proportionality where fundamental rights are in issue but queried what fundamental rights of FIE came into play and were adversely affected by the Board’s decision. Insofar as fundamental rights could come into play, the Board laid emphasis on the fundamental property rights and entitlements of the owners and occupiers of the lands at issue and contended that the decision of the Board to dismiss the referral was a proportionate balancing of interests and that to have made a decision without putting on notice those affected would have been disproportionate. Fourthly, it was contended that this was not an appropriate case in which to reconsider the scope of the doctrine of curial deference because even if this Court were to conclude that the High Court should have been prepared to substitute its own view as to whether the Board had adequate information, it is clear that the High Court judge was satisfied that the decision of the Board was reasonable in O’Keeffe terms but also that it was correct.
43. Two further points are made by the Board. With regard to the suggestion that the Board could dispense with notice under section 250(7) of the act of 2000, the Board noted that the trial judge found that the Board’s approach was reasonable and that the approach contended for by FIE was unreasonable as he stated at para 32:
“…In light of the property rights involved, I do not think that it would have been reasonable for the Board to have dispensed with the necessity to give notice as it could well be anticipated that doing so would cause ‘injury or wrong’ to those involved”.
44. In dealing with the suggestion that the Board could have used its power to affix notices on the lands under section 250(1), the court stated as follows at para 34:
“The affixing of a notice ‘on or near the land’ involved may be suitable where the respondent is dealing with a particular portion of land or structure but not in the situation that presents from the folio maps in question. Therefore, I do not think it unreasonable that a course of action, such as that submitted by the applicant, was not followed by the respondent.”
45. The Board made the point that whilst the last sentence from the passage referred to above may suggest the application of curial deference, the first sentence made it clear that the trial judge took the same view as the Board. Accordingly, the Board submitted that when one reads the High Court judgement as a whole it is clear that the trial judge concluded not only that the Board’s decision was reasonable but that it was correct on its merits. Accordingly, it is contended that the doctrine of curial deference does not avail FIE.
Decision on the issue of Curial Deference
46. In order to consider the impact, if any, of the doctrine of curial deference in this case, it is necessary to consider the decision of the Board in dismissing the referral from FIE. The full decision of the Board is set out above and is succinct. It refers to the different parcels of land involved in the referral and notes that they appear to be in multiple ownership, of varying sizes of holdings and with numerous parties involved. In those circumstances and having regard to the absence of certainty regarding the ownership of the lands in question and what the Board described as the “individual circumstances of the plots (not necessarily adjoining)” the Board considered that the referral was not sufficiently particular or detailed enough to carry out its obligations under the Act of 2000. Reference was also made by the Board to the diversity of circumstances involved and the Board expressed the view that this militated against a thorough evaluation of the referral.
47. It should be borne in mind that the procedure under which a referral is made under s. 5 of the Act of 2000 requires the referring party to provide to the planning authority “any information necessary to enable the authority to make its decision on the matter.” Quite clearly, the Board took the view that it did not have sufficient information before it to enable it to deal with the matter. The problem was that it was asked to consider a referral in respect of three separate areas of land, the ownership of which was not clear and where it was not certain as to how many parties might be in occupation of the land. It goes without saying that the Board was not in a position to make a declaration under s.5 of the Act of 2000 in respect of the lands which could have an adverse impact on the owners and occupiers of the land without giving an opportunity to those owners and occupiers to be heard on the matter referred. To do otherwise would run the risk of infringing the property rights of those owners and occupiers.
48. As I have mentioned previously, there is little or no dispute between the parties as to the areas in which the doctrine of curial deference could apply. In general terms, curial deference may be appropriately afforded to the decision of a planning authority, including the Board, within the area of its specialist expertise but has no part to play in a consideration by a Court of such matters as statutory interpretation, vires, fair procedures and so on. It seems to me that the decision made by the Board in this case had little to do with the Board’s “special skill, competence and experience in planning matters” but everything to do with the application of “fair procedures” to the issue it was being asked to decide. At the heart of the decision of the Board was a consideration of whether or not it would be appropriate to proceed with the referral in circumstances where there was uncertainty surrounding the ownership and occupation of the three parcels of land involved. As such, it is hard to see how the decision of the Board was one to which the doctrine of curial deference should apply.
49. It is difficult to discern any concrete assertion by FIE as to the manner in which the High Court judge demonstrated that he had shown any or, indeed, any undue curial deference to the decision of the Board. The trial judge did refer at para. 28 of the judgment to the submission of the Board that “…it was best placed to assess whether it had the information necessary to make a determination and also to comply with its legal obligation to follow fair procedures, in particular, to hear from those who may be affected by the determination”. However, it is difficult to see that the trial judge “accepted” that proposition as contended by FIE. Having outlined the submissions of the Board, the trial judge went on to consider whether the decision was either irrational or unreasonable and he concluded that it was not. It is also said that the Board did not give any indication that it considered using any of the range of powers available under the Act of 2000 to deal with the issue that concerned the Board and thus it is suggested that there was curial deference shown to the Board when it failed to give satisfactory reasons for not doing more to try to ascertain the identities of the owners/occupiers of the lands and put them on notice of the referral. However, as was pointed out on behalf of the Board, the High Court judge made it clear that he considered that it was reasonable for the Board not to have taken any of the steps now suggested by FIE to give notice such as affixing a notice on or near the land or to dispense with the giving of notice altogether. It is not as though the trial judge accepted an assertion that the Board knew best what to do in terms of giving notice or dispensing with notice to those affected by a referral. Rather the trial judge came to an independent conclusion to the effect that the approach of the Board was reasonable and not irrational for the reasons explained by the trial judge. I find it very difficult to see how these conclusions of the trial judge amount in any way to the affording of curial deference to the Board by the High Court. In truth, I cannot see any basis for impugning the judgment and order of the High Court on the basis that undue curial deference was shown to the decision of the Board.
50. While the submissions touched on the questions of the scope and extent of the doctrine of curial deference, including the concept of proportionality in the context of judicial review, any further discussion of the scope and extent of the doctrine and the role of the concept of proportionality in decision making, should await a case in which these questions clearly arise.
Section 5 of the Act of 2000 and Article 2(1) of the EIA Directive
51. Section 5 of the Act of 2000 has been set out above. Article 2(1) of the EIA Directive provides as follows:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Those projects are defined in Article 4.”
52. Before embarking on a discussion of this aspect of the appeal it is worth reiterating what was said by Irvine J. in the course of her judgment of the 26th July, 2019 referred to previously in relation to the scope of this appeal at paragraph 29 and 30 thereof:
“29. Applying the same reasoning to the facts of the present case, given that the proper construction of s. 5 and/or s. 250 of the 2000 Act properly falls within the scope of the appeal, the deployment of Article 2(1) on the interpretive question can therefore properly be regarded as a refinement of the argument which the appellant seeks to advance in favour of what he contends are the obligations of the Board, and should thus be permitted in accordance with the jurisprudence earlier discussed. The appellant should not be excluded from making an argument as to how those provisions are to be construed in light of Article 2(1) of the EIA Directive even if this results in the applicant being afforded some considerable latitude in light of its failure to pursue such an argument in the course of the High Court proceedings. In so deciding I am mindful of the supremacy of EU law and the risk that if the Court was to take an overly restrictive approach to the scope of the appeal, such a restriction could interfere with its obligation to ensure that the relevant statutory provisions are properly construed against the backdrop of EU law. The Supreme Court, as the final appellate court, could not allow itself be placed in a position where it might incorrectly construe a statute by reason only of the fact that in the court below the applicant had failed to argue the effect of European Union law on that construction.
30. Finally, it is important to make clear the limited extent to which the appellant is entitled to rely upon Article 2(1) of the EIA Directive in the course of the upcoming appeal. The appellant is not being afforded the liberty of making any stand-alone argument or point based upon European law. EU law is only to be deployed as part of an argument as to the proper interpretation of the 2000 Act insofar as such an argument might be categorised as a permissible refinement of the argument made in the court below. Consequent on this judgment, I would propose that the parties be afforded an opportunity to amend their submissions.”
53. As a result of the judgment of the Court on the issue of the scope of the appeal both parties submitted amended legal submissions to take account of the decision of the Supreme Court. I now propose to consider those submissions.
54. It may be useful to start by looking at s. 5 itself. It provides an opportunity to any member of the public to request from a planning authority a declaration as to what is or is not development or exempted development in any particular case. The role of the procedure so provided was described in the Inspector’s report in this case as follows at page 23 of 41:
“Section 5 should therefore be regarded as a simple and relatively inexpensive process that can provide comfort to a prospective developer regarding the status of clearly defined proposals in relation to the requirement to obtain permission under the Planning Acts. It does not provide an appropriate mechanism to determine allegations of unauthorised development because the Board has neither the legal powers nor the expertise to investigate prior acts by persons; or to resolve conflicting accounts of such acts; or to make judgments of such acts that would carry penal or other legal consequences. This is why the courts are given the central role in the enforcement procedures set out in Part VII of the Act, and the Board none at all. The Board should therefore avoid making any declaration under s. 5 of the Act that strays outside the narrow confines of that section into the realm of enforcement either because the declaration is based on accounts of fact that are open to reasonable dispute, or because it implies any persons’ prior acts were culpable in a legal sense.”
55. O’Malley J. in the case of Michael Cronin (Readymix) Ltd. v. An Bord Pleanála [2017] 2 IR 658 observed concerning s. 5 at para 41:
“…The procedure is an expedient method of determining the status, within the regulatory regime, of a particular development about which some doubt may exist.
42. In Grianan an Aileach Interpretative Centre v. Donegal County Council [2004] 2 IR 625 the Supreme Court held that, having regard to the availability of the s. 5 procedure, the High Court had no jurisdiction to grant a declaration that certain proposed activities at a venue were covered by the terms of its planning permission. While such a question might legitimately come before the courts in, for example, enforcement proceedings, the jurisdiction to determine the issue in the first place had been conferred on the planning authority and on the Board. In Wicklow County Council v. Fortune [2013] IHC 397 Hogan J held that this reasoning must be taken as impliedly precluding the High Court from finding that a development was exempted where there was an unchallenged decision by the Board that it was not. I agreed with his conclusion in my judgement in Wicklow County Council v O’Reilly [2015] IEHC 667.
43. It follows that the primary role in determining whether a development is exempted or not is given to (depending on circumstances) either the planning authority or the Board. A decision by one of those bodies is an authoritative ruling on the issue, subject to the potential for judicial review. However, it plainly does not, and could not, result in a determination of guilt or innocence of a criminal offence. There was no suggestion to the contrary at any stage of these proceedings. In my view, therefore, it is entirely inappropriate to read the provisions of section 4 as if they related to ‘the imposition of a penal or other sanction’. But they are concerned with is the exemption of categories of development from the general requirement to obtain permission.”
56. Thus, as can be seen, s. 5 is not there for the purpose of granting permission for a development and it is not a mechanism for the enforcement of compliance with the Planning Acts. That is not to say that a declaration under s. 5 of the Act is of no importance. Clearly, if a declaration is given that a particular activity is or is not development or is or is not exempted development, that will be of assistance in bringing proceedings to stop a development for which the appropriate development consent has not been obtained or alternatively in bringing enforcement proceedings in respect of any such development but that is as far as it can go. It is an important mechanism in providing clarity as to the status of a particular project. That being so, a declaration under s. 5 will obviously affect the rights of the person engaged in the activity at issue. Finally, it should be noted that the party seeking a declaration is obliged to provide the planning authority with any information necessary to enable the authority to make its decision on the matter.
57. The principal point made by FIE is that the procedure under s. 5 of the Act of 2000 has to be interpreted in the context of Ireland’s obligations under the Directive to ensure that developments are subject to development consent. To that extent it is contended by FIE that the investigative powers of the Board and the modes of service provided for in s. 250 of the Act of 2000 are relevant to the proper interpretation of s. 5 in the context of the obligation to ensure the effective application of EU law within the primary legislation governing development consent. It is pointed out that the Board has expertise in the question of what constitutes development and has power to obtain the information it needs to address that question. It is also said that the Board has the means of effecting service on any party. FIE adds that the primacy of EU law requires that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective. Perhaps the core of the argument made on behalf of FIE can be seen in the following statement to be found in the statement of grounds by which these proceedings were commenced in which it is stated as follows:
“The applicant considered that obtaining a declaration in relation to the status of the development being carried out was an important first step in enforcing compliance with the statutory requirements to obtain planning permission and carry out an EIA.”
58. I would pause to observe at this point that whilst FIE may have considered that obtaining such a declaration in relation to the status of the development being carried out was “an important first step in enforcing compliance”, it must be observed that it is not an obligatory step required by the Act of 2000 prior to the enforcement of the statutory requirements to obtain planning permission or to engage the enforcement machinery provided for within the Act of 2000. Neither is it a step in enforcing compliance with any obligation to obtain an EIA. Undoubtedly, the procedure provided for in s. 5 is very useful in establishing the status of a particular development and whether there is in fact a development or whether an activity is an exempted development. But insofar as it may be a step, and indeed an important step, in enforcing compliance as suggested, it is not a necessary step. Proceedings can be taken independent of seeking a declaration against a party carrying on a development which is said to require development consent or said not to be an exempted development or one which requires an EIA without first obtaining a declaration pursuant to s. 5 of the Act of 2000.
59. As pointed out by the Board, it is a procedure that has been successfully utilised by FIE in other cases in which, following a referral, declarations have been granted as sought by FIE in respect of whether peat extraction activities in other parts of County Westmeath were or were not exempted development. The question that arose in those referrals concerned whether or not the peat extraction works there being carried out were required to have an EIA. The Board in those cases determined the referrals in FIE’s favour. Those referrals having been determined in favour of FIE were the subject of judicial review proceedings which were heard by the same trial judge together with the application for judicial review, the subject of this appeal. The Board made the point that it addressed the substantive issue of planning and environmental law in those cases which was similar to that being pursued in these proceedings and further, the point was made by the Board that it demonstrates that where FIE had made a referral with sufficient particularity to allow the relevant owner or operator of the peat extraction works to be identified so that it could participate and provide information to the Board as to the history, nature and extent of peat extraction on the relevant sites, the Board proceeded to determine the referrals. The judicial review proceedings brought against the Board by the owners/occupiers of those lands were not successful. In other words, given sufficient information and detail as to the owners/operators/occupiers of the lands at issue in any given referral, the Board will deal with the matter.
60. The fact that the Board in other cases may have dealt with referrals because they were of the view that they were in a position to do so does not resolve the issue in this case. The issue is whether or not the Board should have utilised its powers under the Act of 2000 to effect service on the owners and occupiers of the relevant sites. It is in this context that FIE relies on the Directive to say that there was an obligation on the Board to go further than it actually did in the circumstances of this case.
61. In the course of their submissions FIE have referred to a number of decisions of the Court of Justice of the European Union on the effect of Article 2(1) of the EIA Directive and have addressed the role of the “competent authorities” in ensuring compliance with Article 2(1). This was mainly for the purpose of establishing that Article 2(1) has direct effect in this jurisdiction, a point which is not disputed by the Board. Thus reference was made to the cases of Case C-244/12 Salzburger Flughafen, Case C-72/95 Kraaijeveld, Case C-201/02 Wells, Case C-420/11 Leth, Case C-215/06 Commission v. Ireland and Case C-378/17 Minister for Justice and Equality and Anor v. Workplace Relations Commission. In the Wells case it was stated at paragraph 61 as follows:
“. . . in circumstances such as those of the main proceedings, an individual may, where appropriate, rely on Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4(2) thereof.”
Further, at Paragraph 65 it was said:
“. . . it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment (see, to this effect, Case C-72/95 Kraaijeveld and Others . . . paragraph 61, and WWF and Others, . . . paragraph 70). Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337.”
62. It might be observed that the procedure under s. 5 would not result in the revocation or suspension of a consent already granted.
63. It would also be useful to refer to a passage from the judgment of the CJEU in Commission v. Ireland in which it was stated at paragraphs 51 – 53 as follows:
“51. . . . Article 2(1) of that directive must necessarily be understood as meaning that, unless the applicant has applied for and obtained the required development consent and has first carried out the environmental impact assessment when it is required, he cannot commence the works relating to the project in question, if the requirements of the directive are not to be disregarded.
52. That analysis is valid for all projects within the scope of Directive 85/337 as amended, whether they fall under Annex I and must therefore systematically be subject to an assessment pursuant to Articles 2(1) and 4(1), or whether they fall under Annex II and, as such, and in accordance with Article 4(2), are subject to an impact assessment only if, in the light of thresholds or criteria set by the Member State and/or on the basis of a case by case examination, they are likely to have significant effects on the environment.
53. A literal analysis of that kind of Article 2(1) is moreover consonant with the objective pursued by Directive 85/337 as amended, set out in particular in recital 5 of the preamble to Directive 97/11, according to which ‘projects for which an assessment is required should be subject to a requirement for development consent [and] the assessment should be carried out before such consent is granted’.”
64. For completeness, I should also refer briefly to a passage referred to from the decision of the CJEU in the case of Minister of Justice v. Workplace Relations Commission where it was stated at paragraph 39:
“. . . the principle of primacy of EU law requires not only the courts but all the bodies of the Member States to give full effect to EU rules.”
The Court went on to say at paragraph 50:“It follows from the principle of primacy of EU law, as interpreted by the Court in the case-law referred to in paragraphs 35 to 38 of the present judgment, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.”
65. Having referred to those passages from the case law of the CJEU, I would reiterate the point already made that an application for a declaration pursuant to s. 5 of the Act of 2000 is not one in which development consent is sought nor is it part of the enforcement procedure provided under the Act to restrain development which does not have development consent or, alternatively, requires an EIA before development takes place.
66. Essentially, the point made by FIE is that the peat extraction work being carried on at the lands at issue in these proceedings is such that it would require an EIA in order to comply with the Directive. That being so, in order to comply with European obligations set out in the EIA Directive, the Board should have considered further the options available under the legislation and was obliged by virtue of our European obligations in terms of Article 2(1) to properly interpret and apply s. 250 in the context of ensuring that projects likely to have significant effects on the environment by virtue, inter alia of their nature, size or location are made subject to a requirement for development consent and in not doing so it is contended that the Board failed in its obligations under European law to take all the necessary measures to ensure that the objects of the Directive was fulfilled. It is not contended by FIE that Article 2(1) obliged the Board to determine the application regardless of the concerns of the Board in relation to identifying parties whose rights might have been affected. Rather the point is made that EU law obliges the Board to use all the means at its disposal to address its concerns. Thus, at the heart of this appeal is the question of whether or not the Board should have done more to address its concerns by utilising the machinery provided under the Act for service of proceedings.
67. The Board does not dispute FIE’s submissions to the effect that Article 2(1) has direct effect in this jurisdiction as observed previously. It refers to the argument now put forward by FIE to the effect that Article 2(1) “obliges the Board to use all means at its disposal to address” its concerns in relation to the lands at issue in this particular case to enable it to determine the referral.
68. By way of response, the Board points to the lack of any authority to support the contention that Article 2(1) has such a bearing on the proper construction of s. 5 and s. 250 of the Act of 2000. It points out that s. 5 was not one of the procedures designed to give effect to the Directive and is not part of the measures required by the Directive to be put in place. It is noted that the procedure provided for in s. 5 was first introduced pursuant to s. 5 of the Local Government (Planning and Development) Act 1963 long before the enactment of the EIA Directive or the State’s membership of the European Economic Community as it then was.
69. Having said that, it is accepted by the Board that Article 2(1) may have some bearing in considering a s. 5 referral. It is pointed out that s. 4(4) of the Act of 2000 provides that development which would otherwise be exempt from the requirement to obtain planning permission shall not be exempted development if it requires an EIA. Therefore as part of its consideration as to whether certain development is or is not exempted development under s. 5, the Board must consider whether the obligation to carry out an EIA arises. Thus, the Board notes that in the other s. 5 referrals to which reference has previously been made, the Board concluded that an EIA was required and accordingly peat extraction in the case of those referrals was not exempt from the requirement to obtain planning permission. However, the Board goes on to point out that the s. 5 process is not required by the EIA Directive or by European law more generally and in those circumstances the Board contends that it is difficult to see how Article 2 of the Directive could be said to affect the Board’s procedural decision as to whether it has sufficient or adequate information to determine the issue in the referral and as to whether it is satisfied that it has sufficient or adequate information to enable it to process the referral in a manner that does not breach the constitutional fair procedures rights of the owners and occupiers of the lands to which the referral relates. It is emphasised that this is all the more so bearing in mind that the “right to be heard” is a fundamental principle of European law and is reflected in Article 41(2) of the Charter. In addition, the Board contends that FIE has not identified any authority which would support its contention that Article 2 of the Directive has any bearing on the Board’s consideration of whether or not to invoke its powers under s. 250(1) and/or s. 250(7) of the Act of 2000 in relation to the giving of notice or the dispensing of the need to give notice. The Board points out that if it is not satisfied on the facts of a particular s. 5 referral that those powers are not an effective means of putting landowners likely to be affected on notice of same, then it is entitled to dismiss the referral under the provisions of s. 138(1) of the Act.
70. The Board goes on to point out that it is necessary to look at the facts of this case in considering FIE’s contention that the Board was obliged “to use all means at its disposal to address” any concerns it had about ensuring that in determining the referral it afforded fair procedures to those whose rights could be affected by a determination on the referral. It is pointed out that the Board did conduct an investigation and attempted to ascertain the identity of the owners and occupiers of the lands in question. It is pointed out that the High Court judge agreed that “in the situation that presents from the folio maps in question”, affixing a notice at or near the lands did not present an adequate means of addressing the Board’s concerns in accordance with the provisions of s. 250(1)(d) of the Act of 2000.
71. Likewise, it was held by the trial judge that it would not have been reasonable for the Board to have dispensed with the necessity to give notice altogether as provided for under s. 250(7) because, as the trial judge pointed out at para 32, “…it could well be anticipated that doing so would cause ‘injury or wrong’ to those involved”. Bearing in mind those findings of the trial judge, the Board contends that it is unclear how reliance on Article 2(1) of the EIA Directive could give rise to a finding that the Board erred in deciding not to proceed to determine the referral in the subject matter of these proceedings. Finally, the Board noted that in the judgment refusing leave to appeal under s. 50A(7) of the Act of 2000 it was always open to FIE to furnish more information to the Board or alternatively to submit a more focused referral but it did not do so.
72. There are a number of observations that can be made in relation to the relationship between s. 5 and Article 2(1) of the EIA Directive. Firstly, it is worth considering again the terms of Article 2(1). It provides that before consent is given to a project, a project likely to have significant effect on the environment is subject to a requirement for development consent and an assessment with regard to the effect on the environment of the particular project. Secondly, it must be noted, as pointed out previously, that the procedure provided for under s. 5 of the Act of 2000 is not one which leads to the grant or refusal of development consent. Nor is it part of the machinery provided for under the Act of 2000 for the enforcement of planning regulations. As Simons J. put it in Friends of the Irish Environment v. Minister for Communications [2019] IEHC 555 at paragraph 45(3):
“(iii). Section 5 of the PDA 2000 provides a simple procedure whereby the question of whether a particular development (including peat extraction) requires planning permission can be determined, initially, by the planning authority and, thereafter, on review by An Bord Pleanála.”
73. There is no doubt that, as Simons J. and O’Malley J. in the case of Michael Cronin (Readymix) Ltd. v. An Bord Pleanála, referred to previously, have indicated, s. 5 is a useful method of clarifying an issue as to the planning status of any particular project. It is also relevant to note, as has been accepted by the Board, that Article 2(1) has a bearing on a consideration of whether or not something is exempted development having regard to the provisions of s. 4(4) of the Act of 2000. Where relevant, the Board has to consider whether an obligation to carry out an EIA arises in a particular case. To that extent, the parties do not appear to be in dispute.
74. The Board in this case dismissed the referral because of the Board’s inability to identify the owners/occupiers of the lands at issue in the referral and FIE has argued that the Board had an obligation having regard to the provisions of Article 2(1) to use all of the powers under the provisions of s. 250 of the Act of 2000 to ensure that the referral could be determined. Could it be said that FIE is correct in asserting that the Board is under such an obligation? It does not appear to me to be in dispute that a determination of a referral under s. 5 has the potential to adversely affect the property rights of the landowners/occupiers of the lands at issue. That being so, it seems to me that the Board could not proceed to carry out a determination without putting those landowners/occupiers on notice of the referral. This view is reinforced by reference to the provisions of s. 129(1) of the Act under which the Board is obliged to give a copy of the referral to “each other party”. It is in those circumstances that FIE has maintained that the Board should have utilised the provisions contained in s. 250 to alleviate the concerns of the Board by either affixing a notice to the lands in question or by dispensing with the requirement for notice. To paraphrase s. 250(1) it provides that where a notice is required to be served on or given to a person, it shall be served inter alia “by affixing it in a conspicuous place on or near the land or premises” (s. 250(1)(d)). Alternatively, FIE suggested that use should have been made of the provisions of s. 250(7) which allows the Board, if satisfied that reasonable grounds exist for dispensing with the serving of notice and if also satisfied that dispensing with the service of notice will not cause injury or wrong, it may dispense with the serving of the notice.
75. Assuming for the sake of argument that FIE is correct in its contention that the Board is obliged to interpret and apply s. 250 of the Act of 2000 in accordance with the obligation to ensure the correct application of European law as found in Article 2(1) of the Directive, what possible interpretation of s. 250 could give rise to a different outcome in this case? The fundamental problem was the identification of those owners/occupiers engaged in the process of peat extraction in the lands involved. The lands were substantial in area. There were multiple owners involved, some of whom were capable of being identified by reference to Land Registry folios, although that was not entirely straightforward. Not all of the lands were registered. Therefore, not all of the owners could be identified by means of a Land Registry search. Identification of the owners of the lands alone would not have sufficed as there were others engaged in the activity of peat extraction. I have previously referred to a map depicting numerous subdivisions of the lands which appear to be demonstrative of this fact. How in those circumstances could the Board have given notice by, for example, affixing a notice to the lands involved? It would have been virtually impossible on a practical basis and to that extent I agree with the observations of the trial judge at paragraph 34 of his judgment. I simply do not think it would have been reasonable for the Board to have engaged in a process of affixing notice to the multiplicity of subdivisions of the land at issue. As the trial judge noted, such a course of action may be of assistance when there is a particular portion of land or structure at issue but that was not the situation here. Insofar as it might be suggested that the Board could have exercised its power under s. 250(7) to dispense with the giving of notice, this also seems to me to be a proposition that simply cannot stand up. In order to dispense with consent under s. 250(7) the Board has to be satisfied that dispensing with notice “will not cause injury or wrong”. It is difficult to see how the Board could have come to any other conclusion but that determining the referral without giving notice would have caused injury or wrong to those affected. I find it difficult to see how dispensing with notice could have been done in the circumstances of this case and I agree with the trial judge who concluded at para 32 that it would not have been reasonable for the Board to dispense with the necessity to give notice “…as it could well be anticipated that doing so would cause ‘injury or wrong’ to those involved”. Nothing in the State’s obligations under Article 2(1) of the EIA Directive leads, in my view, to any other conclusion.
76. It has to be remembered that the obligation to ensure the application of fair procedures in the circumstances of this case by allowing those parties who might be affected by a determination on a referral under s.5 to participate in the hearing is not only required by Irish law but is also reflected in European law on the right to be heard. It is somewhat surprising therefore to have an argument which would have the effect that the obligations of the State under article 2(1) could somehow necessitate that important requirement to be set at naught. The practical reality of this case is such that neither the affixing of notices on the lands at issue nor the use of s. 250(7) to dispense with the giving of notice would have been appropriate given the complexity of the land ownership and multiplicity of users of the lands. Therefore, I am satisfied that Article 2(1) could not have any possible effect on the construction of s. 250 of the Act of 2000 such that it would require the Board to have determined the referral without regard to its obligation under s. 129 of the Act to give notice of the referral to those affected and more to the point, no construction of s. 250 informed by Article 2(1) could be relied on to obviate the obligation.
77. For completeness, I should add that in my view, the interpretation of s. 250 of the Act of 2000 is a matter of national law and I cannot see any basis for a reference to the CJEU.
Some observations
78. The protection of peatlands is something to which a high value has been given as can be seen from the terms of the EIA Directive. It is important to ensure that any necessary development consent is in place with respect to activities which could have an effect on an important part of the environment. It is also important to bear in mind that the primary role in enforcing planning law in its functional area rests on the local authority, in this case Westmeath County Council, however difficult that may be in any given case. The difficulty in identifying the owners/occupiers of any particular parcel of land does not mean that the local authority can avoid its responsibility in this regard but I recognize the difficulty that arose in this case because of the extensive area of lands involved and the multiplicity of owners/occupiers concerned. That is not to say that other interested parties such as FIE do not have a role in ensuring compliance with the planning code. FIE have been instrumental in the parallel cases to which reference has been made in ensuring that EIAs be required for the carrying out of such activities. It is important that in acting on such a referral, the Board complies with the obligation in Irish law and in EU law to ensure that parties whose rights may be affected by such a referral are heard on any determination of the referral. Nothing in Article 2(1) suggests that EU law would require the Board to complete a determination in the absence of giving appropriate notice to those whose rights may be affected. The trial judge in this case noted in his judgment of the 7th December, 2018 on the application for leave to appeal pursuant to the provisions of s. 50A(7) of the Act of 2000, the submission of the Board that had the necessary information been provided by the applicant, the respondent could have made a determination and noted that this still remains the case. He went on to say in his conclusions at paragraph 13 of that judgment:
“…Indeed, as has been referred to at para. 5 above, if the applicant obtains basic information concerning the identities of the owners and/or occupiers of the lands involved then it can renew its application for a determination under s. 5 of the Act of 2000.”
79. It is important to bear in mind that FIE has not been precluded from the possibility of making a further referral in relation to the lands or indeed making a number of referrals in relation to specific parts of the lands where it is possible to ascertain the identities of the owners/occupiers of the lands in question. In that way, legitimate concerns in relation to the activities carried out on the lands can be considered and the Board can determine whether or not an EIA is required for the developments taking place and whether or not the developments taking place are or are not exempted developments.
Conclusions
80. The Court in this case was asked to consider the scope and extent of the doctrine of curial deference. In circumstances where I have concluded that this issue simply does not arise on the facts of this case it is not appropriate to embark on a full consideration of the extent and scope of that doctrine.
81. There is no dispute between the parties as to the fact that Article 2(1) has a bearing on s. 5 of the Act of 2000. However, for the reasons set out above it seems to me that Article 2(1) of the EIA Directive does not result in an interpretation or application of the provisions of s. 250 of the Act of 2000 which would obviate the necessity to give notice to those who might be affected by a referral under s. 5 of the Act.
82. For the reasons set out above I would dismiss this appeal.
Heatons Ltd v Offaly County Council
[2013] IEHC 261
JUDGMENT of Mr. Justice Hogan delivered on 4th June, 2013
1. May a planning authority make a reference to An Bord Pleanála pursuant to s. 5(4) of the Planning and Development Act 2000 (“the 2000 Act”), without notice to the relevant landowner in question and, if so, is a reference which asks whether the occupier of the premises is operating in compliance with relevant planning conditions a valid reference for this purpose? These are among the essential issues which arise in the present judicial review proceedings.
2. The applicants operate a department store at Unit H, Tullamore Retail Park, Cloncollog, Tullamore, County Offaly for which they have planning permission, albeit a permission which is subject to certain conditions. It is the nature of these conditions which assumes a particular importance so far as the present case is concerned.
3. Conditions No.2 and No. 16 of the relevant planning permission (PL2-01-651) provide as follows:-
“6. The range of goods permitted to be sold in the approved units shall comprise only bulky household goods such as carpets, furniture and white electrical goods, DIY items and auto motor products…
16. Details of occupancy of each unit hereby approved and any subsequent change in occupancy shall be agreed with the planning authority…”
4. These conditions were further augmented by supplementary planning permission (PL2-04-254) which amends the earlier planning permission, Condition No.2 of which provides:-
“2. Permission is granted for the removal of Condition 6 of PL2-01-651 to allow use as a catalogue retail store in relation to Unit D only. Units A, B, C, E, F, G and H shall remain as retail warehouse uniting and the range of goods permitted to be sold shall comprise only bulky households goods such as carpets, furniture and white electrical goods, DIY and auto motive products. No change of use shall take place without a prior grant or planning permission (notwithstanding the exempting development provisions of the Planning and Development Regulations 2001).”
5. On 11th September, 2007, Messrs Simon Clear & Associates, wrote to Offaly County Council indicating that it was now proposed that Unit H would be used by Heatons for the following purposes:-
“The proposed store will encompass total gross floor space of approximately 2592m2 (the figure includes 1296m2 of mezzanine floor space). The main retail and display floor area will provide for the primary display and sales area for household goods, soft furnishings, bed linen and accessories, sport equipment apparel, homewares and ancillary apparel. The mezzanine floor may facilitate storage of bulky goods, staff areas and some sport equipment display areas.
A prerequisite for all modem Heatons stores is the style of a floor plan which will accommodate an extensive modern showroom type layout. The Tullamore Retail Park Unit H affords the required showroom and space for the proposed Heatons Department Store and thus, it is submitted that Heatons will be an appropriate and exceptionally viable tenant in the retail park.”
Mr. Clear then went on to request that the planning authority:-
“Permit the proposed store to occupy Unit H of the Tullamore Retail Park and deem this proposal to comply with Conditions Nos. 6 and 16 of planning permission PL2-01-651 and Condition No.2 of PL2-07-684.”
6. The Council responded to this letter on 13th March, 2008. The director of services noted that Heatons would sell among other things “bulky household goods, soft furnishing and homewares”. He went on to say that this was considered acceptable to the planning authority and this would be in accordance with the conditions specified in the planning permission.
7. In the wake of that correspondence Heatons duly went into occupation of Unit H. Subsequently, however, a number of inspections carried out by planning officials revealed (apparently) that a substantial number of non-bulky household goods were on sale in a manner which the Council considered to be a contravention of the terms of the conditions contained in the planning permission.
8. On 3rd September 2009 the Council issued an enforcement notice requiring Heatons to comply with condition no. 6 of planning permission PL2/01/651. Specifically, the Council required Heatons to cease the sale of all non-bulky household items by 16th February 2009. The Council then commenced an enforcement prosecution against the company under s. 154 of the 2000 Act, but this prosecution was dismissed by the District Court on 11th March 2011. It would appear that the prosecution foundered principally by reason of an ambiguity contained in the original enforcement notice. The District Court did not, however, address the individual merits of the planning issue.
9. An inspection was subsequently carried out by an official from the planning department on 17th October, 2001. In the course of her very comprehensive inspection, the planning inspector surveyed both floors of the retail unit and concluded that the vast bulk of the items sold were non-bulky, including clothes, footwear, toys, sports items, and items for the home and kitchen. Within these categories there were, admittedly, some items which were bulky. Thus, for example, the sports section sold golf clubs and bicycles.
10. On the 17th April, 2012, the Council sent a letter to An Bord Pleanála requesting it to accept the enclosed reference pursuant to s. 5(4) of the 2000 Act. The letter was, in material part, in the following terms:
“Whether Heatons are operating in compliance with planning condition no. 6 of Ref PL/2/01/651 and condition no. 2 Ref PI/2/04/254 at Unit H Tullamore Retail Park?”
11. The Council enclosed the appropriate cheque, site map and a copy of the relevant permissions. The Council also drew attention to a number of other decisions of the Board in some similar cases (including permissions granted to Heatons in respect of their stores in other locations), but it did not otherwise elaborate or comment. It is common case that no notice was given to Heatons of such reference and, indeed, it appears that the company learnt of the making of the reference from reports in local media outlets. At that juncture the Heatons’ solicitors wrote to the Board on 25th May 2012 enclosing a submission.
12. On 28th May 2012 Heatons’ solicitors received a letter from the Board enclosing a copy of the reference which was stated to have been “provisionally validated pending review”. Heatons were requested to make submissions in accordance with s. 129 of the 2000 Act. The Board’s letter enclosed a copy of the earlier submissions of 25th May which had been received before the referral was issued to the parties. The Board indicated that the submission might be resubmitted as part of Heatons’ response to the reference.
13. Heatons applied for leave to apply for judicial review in June 2012 and was granted leave to apply on several grounds. Although not formally a party to the proceedings, An Bord Pleanála agreed to abide by the outcome of the proceedings. It further indicated that it would take no steps to determine the reference pending the delivery of this judgment.
Whether Heatons should be allowed to make arguments based on compliance with s. 127 of the 2000 Act
14. At the outset of the hearing, counsel for the applicant, Mr. Ralston S.C., sought to rely on a new argument to the effect that the reference did not comply with the requirements of s. 127(1)(d) of the 2000 Act. No leave had been granted by this Court to enable this argument to be advanced – although this point had been raised with the Board in a letter from the applicant’s solicitors dated 18th June 2012 – and counsel for the Council, Mr. Keane S.C., objected strongly to such permission being granted.
15. Not without hesitation I have come to the conclusion that such leave to amend should be granted. In this respect, I am influenced by two primary considerations. First, it is now plain in view of the decision of the Supreme Court in Keegan v. Garda Siochána Complaints Board [2012] IESC 29 that a more accommodating approach to the issue of the amendment of pleadings in judicial review is now mandated. In effect, the test enunciated by Fennelly J. requires the court to balance a number of sometimes competing considerations in order to weigh the balance of justice. These include factors such as whether the amendment will significantly enlarge the scope of the existing case, the strength of the argument, the reasons for the amendment, whether the amendment will be prejudicial or would affect third parties or otherwise compromise legal certainty.
16. Applying these principles, therefore, it may be observed that the proposed amendment will not greatly expand the scope of the existing case. The proposed amendment furthermore involves a pure point of law and nor will it involve a challenge to a different decision. The applicant had already maintained that the reference was invalid as a matter of law, albeit that it had not quite put its finger on this point. As Fennelly J. noted in Keegan these are factors pointing to the exercise of judicial discretion in favour of permitting the amendment.
17. Second, the proposed amendment not only raises a matter which is of importance, but is one which, for reasons I will set out presently, is fundamental to the fair and proper operation of the reference procedure itself. Put another way, if Heatons were not permitted to argue this issue, there is a serious risk that the fairness of the procedure operated by the Board pursuant to statute would be jeopardised.
18. The applicant also sought leave to argue that the reference was invalid because the Manager had not made the appropriate order pursuant to s. 155 of the Local Government Act 2001. I would decline to permit this amendment for three basic reasons. First, this point is a technical one which does not directly bear on the fairness of the planning process. Second, this amendment would, if permitted, significantly expand the scope of the case and would involve a new argument that a particular decision had not been taken. Third, the argument is not as strong as the argument based on non-compliance with s. 127(1)(d).
19. We may now proceed to consider the merits of the several grounds now advanced to challenge the reference itself.
Whether the reference was a valid reference by reason of non-compliance with s. 127(1)(d)
20. Section 127(1)(d) of the 2000 Act provides that such a reference:
“shall ….state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based.”
21. Section 127(2)(a) provides that “an appeal or referral which does not comply with the requirements of subsection (1) shall be invalid”. Pursuant to the amendment which I have just permitted, the applicant maintains that the reference was invalid because neither the letter of reference nor any of the accompanying documentation stated the grounds for the reference nor “the reasons, considerations and arguments” upon which the reference was based.
22. The present case may usefully be contrasted with the decision of Quirke J. in O’Reilly Brothers (Wicklow) Ltd. v. An Bord Pleanála [2006] IEHC 363, [2008] 1 IR 187 where these issues were also explored. This was a case where Wicklow County Council had made a reference to the Board arising from the applicant’s quarrying activities.
23. A large number of documents were submitted to the Board by the Council and these were accompanied by a letter from a senior planning official which expressly sought:
“…a declaration and referral on development and exempted development under s. 127 of the Planning and Development Act 2000. This is with a view to determining whether … [the applicant]… [has]… intensified the use of this quarry to the extent that planning permission is required. This quarry is pre-1963 and would appear to have increased in scale”.
While Quirke J. accepted that the quality of the documentation which accompanied the letter was “deplorable”, he nonetheless held that ([2008] 1 IR 187, 196-197):
“….the ground of the referral is contained within that letter. The subsequent exchange of documentation between all of the parties, (which was comprehensive in nature and detailed in evidential content), confirmed that the Council required the Board to determine whether the apparent intensification in the scale of quarrying operations at the relevant site was sufficiently large in scale that it comprised a “development” which was not an “exempted development”.
Although Quirke J. also found that the “reasons, considerations and arguments” upon which the ground was based are not to be found within the letter, he nonetheless added that ([2008] 1 I.R. 191, 197):
“the referral need not be contained within one document. It may be contained within one document or within a series of documents and it may be submitted in a relatively informal manner by a member of the public. What is mandatory is that the grounds of the referral and the “reasons, considerations and arguments” upon which they are based must be submitted in writing.”
24. It is, I think, clear from the judgment of Quirke J. that he regarded this case as borderline. In truth, as Quirke J. found, the reasons, considerations and arguments were in fact contained in the reference in O’Reilly Brothers, albeit heavily camouflaged in a jumble of other documentation. Moreover, the letter from the planning authority did, in any event, identify the issue on which the Council sought a reference. Critically, however, even that cannot be said in the present case, since the letter of reference was framed at the highest level of generality and was entirely silent on the issues of the reasons, considerations and arguments. One could perhaps infer from both the terms of the letter and the accompanying documentation what issues actually subtended the reference, but even this would require some degree of supposition on the part of the Board. Just as importantly, potentially important documentation- such as the Simon Clear correspondence -was not included in the reference.
25. Quite apart from the fact that the Oireachtas has expressly stated in s. 127(2)(a) that such omissions are fatal to the validity of the reference, all of this was potentially prejudicial to the applicant. While the Board would naturally have been obliged by virtue of s. 129(1) to communicate the reference to the applicant (as, indeed, it did by letter of 28th May 2012), the latter would perforce have been place at a disadvantage in being obliged to respond in circumstances where the true basis of the reference was not explicitly stated. This prejudice might be especially marked given that s. 129(4) provides that, subject to the Board’s right to hold an oral hearing under s. 134:-
“… a person who makes submissions or observations to the Board in accordance with this section shall not be entitled to elaborate in writing upon the submissions or observations or make further submissions or observations in writing in relation to the appeal or other matter and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.”
26. Accordingly Heatons might well have been placed at a disadvantage in dealing with such a laconic and uninformative reference which also failed to enclose key documentation. Not only is a person called upon to respond in such circumstances always at a disadvantage where the precise nature of the point is requested to meet has not been expressly stated, but in the event that Heatons sought to rely on important documentation -such as the Simon Clear correspondence and the Council’s response to it- it would now be doing so for the first time and in circumstances where it would not, by virtue of s. 128(4), enjoy any entitlement to respond in turn.
27. All of this underscores the importance of compliance with s. 127(1)(d). As this it is part of a complex set of interlocking statutory provisions, failure to comply with the requirements of this sub-section has in itself consequences which frustrate the proper operation of the other provisions. The “no further comment” rule ins. 129(4) is thus accordingly predicated on the assumption that s. 127(1)(d) will have been complied with in the first instance and that the other party to the reference is simply responding to a reference which itself contains the “reasons, considerations and arguments” in sufficient detail to enable the other party fairly to respond.
Is the reference capable of being regarded as a valid one for the purposes of s. 5(4) of the 2000 Act?
28. Section 5(4) of the 2000 Act provides that:
“…a planning authority may…. refer any question as to what in any particular case is or is not development or is or is not exempted development to be decided by the Board.”
29. It is accordingly plain that the Board’s single function under s. 5(4) is to determine whether in any given case there has or has not been development or, as the case may be, exempted development. Questions as to whether a particular use is unauthorised is not a function of the Board under s. 5(4) and, indeed, it may be observed that the Board has no enforcement role at all. This was the very point made by Finlay Geoghegan J. in her very careful and comprehensive judgment in Roadstone Provinces Ltd. v. An Bord Pleanála [2008] IEHC 210 when she said:
“The respondent has no jurisdiction on a reference under s.5 (4) of the Act to determine what is or is not “unauthorised development”. It may only determine what is or is not “development”. Hence, a planning authority, such as the notice party, cannot refer a question under s.5 (4) as to whether the works or proposed works or use constitutes unauthorised works or use and hence unauthorised development. Determination of what is or is not “unauthorised development” will most likely be determined by the courts where a dispute arises on an application under s.160 of the Act.”
30. While as we have already seen the reference did not set forth the grounds on which such reference was made by the Council in the manner expressly required by s. 127(1)(d), it may be inferred from the surrounding circumstances that the Council considered that Heatons were using the premises in the manner which contravened the conditions specified in the planning permission. If this were correct, it would amount to an unauthorised use which might well amount to “development” in the special sense of that phrase as employed by the 2000 Act.
31. Section 3(1) of the 2000 Act defines “development” as meaning:
“…the carrying out of any works, on, in, over or under land or the making of any material change in the use of any structures or other land.”
32. There are no questions of any works at issue in the present. The real question is whether a breach of a planning condition would (or, at least, could) amount to a material change of use. It is clear that “material” in the sense contemplated by s. 3 of the 2000 Act means “material for planning purposes”: see, e.g., Monaghan County Council v. Brogan [1987] I.R. 333, 358,per Keane J. and Roadstone Provinces, per Finlay Geoghegan J.
33. In the present case, therefore, the question of “development” amounts to this: could the use of retail premises for a purpose other than that (apparently) required by the terms of a planning permission amount to a material change in use and, hence, “development” in this sense? I have to say that I think that it can.
34. The classic test with regard to whether there has been a material change of use remains that posited by Barron J. in Galway County Council v. Lackagh Rock [1985] I.R. 120. One of the indicia of material change of use mentioned by him was whether the proposed development would be likely to require different conditions to those contained in the original planning permission. Judged by this standard, it is entirely possible that different conditions would have been attached had the retail unit been free to sell non bulky goods.
35. It is, moreover, clear from the authorities that a change of use can amount to a development. In McMahon v. Dublin Corporation [1997] 1 I.L.R.M. 227 the issue was whether the use of recently constructed houses in a housing development as holiday homes amounted to a change of use. Barron J. clearly thought that it could do so ([1997] 1 I.L.R.M. 227, 232):
“If the houses….were not used as authorised by the planning permission but used in a different manner then there must have been a change of use. Such a change of use was a material change and, as such, was unauthorised development.”
36. This was also the view of McGuinness J. in Palmerlane Ltd. v. An Bord Pleanála [1999] 2 I.L.R.M. 214. Here the applicant had been granted planning permission for a retail convenience store, but upon the opening of the store, it also commenced selling some hot food. When the planning authority threatened enforcement action on the ground that the sale of the hot food was unauthorised, the company which owned the store referred this question to the Board under the precursor provisions to s. 5(4) of the 2000 Act.
37. The Board, however, declined to accept the reference on the ground that the company had commenced selling the food on the same day as the store opened, so that there had been no change of use in the non-planning sense of this term and, hence, no “development” for the purposes. McGuinness J. quashed this refusal to accept the reference as erroneous in law. It is implicit in this judgment that a change of use in breach of a planning condition could amount to “development” for the purposes of s. 5(4). For good measure the decisions in both McMahon and Palmerlane were approved by the Supreme Court in Grianán an Aileach Interpretative Centre Co. Ltd. v. Donegal County Council [2004] IESC 41, [2004] 2 IR 625. As Keane C.J. observed ([2004] 2 IR 625, 636-637) in that case:
“…a question as to whether the proposed uses constitute a ‘development’ which is not authorised by the planning permission is one which may be determined under the Act of2000 either by the planning authority or An Bord Pleanála.”
38. It is for these reasons that I consider that the use of premises in a manner which breaches the term of a planning permission could amount to “development” for the purposes of s. 3 of the 2000 Act. To that extent the reference was not invalid on that account. Yet this merely serves to highlight once again the importance of compliance with the requirements of s. 127(1)(d), since in cases of this kind, presenting as they do rather subtle questions of mixed law and fact, the factual sub-stratum and the relevant issues must be highlighted in the original document submitted by the party making the reference.
Breach of fair procedures
39. The applicant also maintains that the Council breached fair procedures by involving the statutory reference procedure without prior reference to it. While I am sure that no discourtesy was intended and that the matter came about through simple oversight, it was nonetheless unsatisfactory that Heatons should learn of this development from the local media. Irrespective of any strict legal obligations, a courtesy letter from the Council to Heatons informing them of this fact would not have gone astray.
40. If, however, the matter is approached from the perspective of legal rights, it cannot be said that the Council were obliged to give advance notice of the reference. Cases where advance notice of an application to an administrative body is required are rare and are generally confined to cases where the very fact of such an application is either potentially prejudicial from a reputational perspective or where the triggering of the administrative process would otherwise be potentially burdensome. Applications for an inquiry into the professional conduct of an individual represent a classic category of such cases, since the very fact that such an inquiry is being conducted, coupled with the stress, strain and burden involved in such inquiries all clearly indicate that fairness requires that the professional person be given an opportunity of responding to the potential complaint before an application is made to the professional body for an inquiry: see O’Ceallaigh v. An Bord Altranais [2000] 4 I.R. 42.
41. While it is true that the decision of the Board will form an integral part of the planning history of the site (sees. 5(5) of the 2000 Act and West Wood Club Ltd. v. An Bord Pleanála [2010] IESC 16), it cannot be said that the making of the reference will have immediate reputational implications for Heatons. In that respect, the case is entirely distinguishable from Dellway Ltd. v. National Asset Management Agency [2011] IESC 11 where the very act of transferring significant bank loans to NAMA carried with it the implication to outsiders (including other financial institutions) that the company could not service those loans, even if that implication was not necessarily warranted by a consideration of the objective facts.
42. The fundamental reason, however, why no such advance notice is required is because the merits of the application will adjudicated fairly by the Board in the careful manner specified by ss. 129 et seq. of the 2000 Act. Heatons would therefore get that opportunity to be heard before any decision adverse to its interests might possibly be taken. All of this re-inforces yet again the obligation on the part of the referring party to comply fully with the requirements of s. 127(1)(d), since absent such proper compliance the careful manner in which the procedural rights of all parties are preserved by the operation of these inter-locking statutory provisions might otherwise be compromised.
Conclusions
43. It remains only for me to summarise my principal conclusions.
44. First, not without hesitation, I will grant the applicant leave to extend time to raise the s. 127(1)(d) argument in the light of the more accommodating attitude taken to questions of extensions of time taken by the Supreme Court in Keegan v. Garda Siochána Complaints Board [2012] IESC 29. I will not grant leave to raise the argument based on s. 155 of the Local Government Act 2001.
45. I am arriving at this conclusion principally because I think that the form of the reference plainly did not comply with the requirements of s. 127(1)(d) of the 2000 Act in that the letter of reference did not “state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based.” Unlike O’Reilly Bros. – itself a marginal case – the reasons for the reference are left entirely to inference and potentially important material such as the Simon Clear correspondence have been omitted.
46. Nor is the precise ground of reference clear. One assumes this because this relates to Heatons’ (alleged) occupation of the premises in breach of its planning conditions amounts to “development”. But this is an objection which must be clearly stated, not least that the change of use here could only be material by reason of the specific condition which confined the retail premises principally to the sale of bulky goods. Were it not for such a condition, it is unlikely that any change of use of the store from bulky goods to non-bulky goods would amount to a change of use.
47. The issue raised is capable of amounting to a valid reference for all the reasons set out by Barron J. in McMahon and by McGuinness J. in Palmerlane and as approved by Keane C.J. in Grianán an Aileach.
48. There was no need to consult in advance prior to the making of the reference because Heatons’ procedural rights would be fully protected by the Board in line with s. 129 of the 2000 Act. While it is true that the decision of the Board would affect the planning history of the site in the manner specified by s. 5(5) and had implications for the exercise by Heatons of the exercise of their property rights, it was largely an administrative step with no systemic reputational implications, unlike cases such as O’Ceallaigh and Dellway. But since, nevertheless, the exercise of these rights of these rights is premised on the existence of a reference which does in fact fully set out the grounds of reference, this makes compliance with s. 127(1)(d) all the more important and it is for this single reason that I will quash that reference.
Ógalas Ltd v An Bord Pleanála
[2014] IEHC 487
JUDGMENT of Ms. Justice Baker delivered the 23rd day of October, 2014
1. The applicant operates a large store, of the type now commonly called a superstore, under the style of Homestore and More (“HSM”) from premises at Unit 5, Sligo Retail Park, Carrowroe, Sligo and has done so since 28th October, 2011. Sligo Retail Park is currently in receivership and the joint receivers, Kieran Wallace and Patrick Horkan are third named notice parties to this application for judicial review. Neither they nor the other notice parties took any active part in the application before me.2. Peart J. on 8th July, 2013 gave leave to apply for judicial review in the form of an order of certiorari quashing the decision of the respondent made on 23rd May, 2013 that the use by HMS of Unit 5 for the type and class of goods being sold from the store was properly characterised as development, and that that development was not exempted. Leave was also given for an ancillary order remitting the decision to the respondent and a stay was granted on the decision pending the final determination of this application.
3. The decision of the Board was made pursuant to s. 5 of the Planning and Development Act 2000. Subsections (1) and (4) provide as follows:-
“5 (1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.”
4. It is well recognised in the authorities that the Board’s function in determining a reference under s. 5 of the Act of 2000 is limited to a question of whether a particular use or the carrying out of any works constitutes development. The Board has no role in determining whether any use is authorised and this is clear from the judgment of Finlay Geoghegan J. in Roadstone Provinces Limited v. An Bord Pleanála [2008] IEHC 210 where she stated that on a s. 5(4) reference, the Board “may only determine what is or is not ‘development’.” Section 3(1) of the Act of 2000 defines development as meaning:-
“carrying out of any works, on, in, over or under land or the making of any material change in the use of any structures or other land.”
Planning history
5. Sligo Retail Park operates under parent planning permission granted by Sligo County Council on 1st August, 2003, for a retail warehouse park incorporating 12 units, and containing a DIY store and garden centre, leisure unit and fast food restaurant. The initial planning permission for Unit 5 was for leisure use, but by order of 26th October, 2004, the parent permission was altered to substitute the use for Unit 5 as a retail warehouse and which permitted an increase in the mezzanine floor area of the unit. That planning permission, which issued on appeal by the Board, contained condition 18 which provides as follows:-
“The retail element of the proposed development shall be restricted to retail warehousing development only. In this regard, the range of goods to be sold in the retail units shall be restricted to bulky household goods and goods generally sold in bulk (as defined in Annexe 1 of the Retail Planning Guidelines for Planning Authorities issued by the Department of the Environment and Local Government in December 2000), including carpets and floor coverings, furniture, electrical goods, computers and DIY items, including garden equipment.”
6. The question before the Board on the reference was in simple terms whether the use of Unit 5 comprised a change of use from that permitted in this planning condition.
History of this reference
7. On 20th January, 2012, Sligo Chamber of Commerce sought a declaration from Sligo County Council under s. 5 of the Act of 2000 as to whether having regard to the planning permission a change of use had occurred by reason of the type and class of goods sold by HSM in Unit 5. Sligo County Council issued a declaration on 15th February, 2012, wherein it stated that the “change in the class of type of goods being sold” at Unit 5 did not constitute development.
8. On 13th March, 2012, Sligo Chamber of Commerce referred the declaration to the Board for review in accordance with s. 5(3) of the Act. The Board appointed an inspector who furnished her report on 20th July, 2012. The Board issued its decision on 23rd May, 2013, wherein it held that:
“the use of Unit number 5, Sligo Retail Park, Carrowroe, Sligo for the type and class of goods being sold by Homestore and More is development and not exempted development.”
It is this decision that is challenged in this review.
Retail Planning Guidelines
9. Condition 18 in the relevant planning permission identified the range of goods permitted to be sold in Unit 5 as “bulky household goods and goods generally sold in bulk”. How one is to understand the goods of this type is specifically referable to the definition in Annexe 1 of the Retail Planning Guidelines issued in December 2000. The definitions in those Guidelines are of note:-
“Retail Warehouse – A large single store specialising in the sale of bulky household goods such as carpets, furniture and electrical goods, and bulky DIY items, catering mainly for car-borne customers and often in out of centre locations.
Bulky goods – goods generally sold from retail warehouses where DIY goods or goods such as flat pack furniture are of such a size that they would normally be taken away by car and not being manageable by customers travelling by foot, cycle or bus or that large floor areas would be required to display them e.g. furniture in rooms sets, or not large individually but part of a collective purchase which would be bulky e.g. wallpaper, paint.”
10. The Board made a determination that the retailing activity carried out by the applicant included the sale of substantial amounts of non-bulky household goods and that in the circumstances this retailing activity constituted a change of use from that contemplated by condition 18 of the planning permission. Accordingly, the Board took the view that the use of Unit 5 did constitute development, being a material change in use and that the material change of use was not exempted development.
11. Certain other definitions are relevant and the Guidelines define a retail park as a single development of at least three retail warehouses with associated car parking. Sligo Retail Park clearly comes within this definition.
12. Since the publishing of the Guidelines of 2000, further Guidelines were issued by the Department of the Environment in 2005 and more recently in 2012, Annexe 1 of which contains a glossary of terms in particular under A1.2 a glossary of types of retail goods. The relevant comparison goods identified under the subheading “bulky goods” is as follows:-
“Bulky goods – goods generally sold from retail warehouses where DIY goods or goods such as flatpack furniture are of such size that they would normally be taken away by car and not be portable by customers travelling by foot, cycle or bus, or that large floorspace would be required to display them e.g.
– repair and maintenance materials;
– furniture and furnishings;
– carpets and other floor coverings;
– household appliances;
– tools and equipment;
– bulky nursery furniture and equipment including perambulators;
– bulky pet products such as kennels and aquariums;
– audio visual, photographic and information processing equipment;
– catalogue shops and other bulky durables for recreation and leisure.”
It is specifically said that the list is not exhaustive and that “bulky goods not mentioned in the list should be dealt with on their merits and in the context of the definition of bulky goods.”
13. Bulky goods under the Guidelines of 2000 are goods “generally sold from retail warehouses”. The definition in the Guidelines of 2012 adds to the definition that such goods would “normally” be taken away by car and imports an element of common experience or practice in relation to these types of goods, and another element relating to the need for large areas in a store for the display of such goods. It is clear that the goods do not need to be large individually, but they may be part of a collective and bulky purchase.
Store layout
14. The HSM store comprises a retail space laid out in room format or what is called “room sets”, set up as bedrooms, kitchens, bathrooms etc. and goods for sale are displayed in the relevant room space. A full list of type of goods sold in Unit 5 has been identified in the grounding affidavit of Jonathon Stanley and I list here a sample of the goods therein identified and listed. The goods include kitchen tools and equipment, boxed tableware, glass sets, mattresses, duvets, pillows and other bedroom items, bathroom cabinets and other bathroom items, vacuum cleaners, ironing boards, clothes airers, TV cabinets, rugs, doormats, plants, wall mirrors, picture frames, summer furniture, Christmas trees, barbeques, and Halloween figures.
15. Certain of the items are bulky items, but equally items such as teapots, coffee pots, mops and buckets, laundry pegs, wall clocks, Christmas decorative figures are individually not bulky, but may be part of a collectively bulky purchase.
The arguments
16. The applicant argues that the Board, and the inspector, failed to properly interpret the definition of bulky goods and that such an error is an error of law, amenable to review by this Court. The applicants further argue that the inspector failed to have regard to proper considerations and that she wrongly took account of, or gave undue weight to, the Guidelines of 2012. It is claimed that the report of the inspector contained irrational and arbitrary findings to such an extent that the Board decisions made in reliance on the report are invalid. It is also argued that the Board did not give an adequate statement as to the considerations that influenced its decision nor is there anything contained in the Board’s decision that indicated that it did not adopt the errors alleged to be contained in the inspector’s report.
17. The respondents argue that the Board had sufficient information before it to make a decision, that the inspector did not make an error of interpretation, and the error, if there be such in her report, did not find its way into the decision of the Board,
The role of the court
18. It is not my function to substitute my decision for that of the Board and my role is confined to asking itself whether the decision of the Board was arrived at following improper considerations or as a result of a failure to take into account relevant considerations or as a result of an incorrect interpretation of the planning permission. The matter was succinctly explained by Kearns J. (as he then was) in Evans v. An Bord Pleanála (Unreported, 7th November, 2003):-
“In an application of this nature, the Court is not concerned, nor is it permitted, to substitute itself for An Bord Pleanála and to ask if it would have reached the same decision on the identical material. The Court is only concerned with the decision making process itself. That being so, the Court may only ask: was there material upon which the decision maker could make the decision which it did make? If so, was the decision taken one which flew or which flies in the face of fundamental reason?”
19. It is submitted by the applicant that the Board took various irrelevant matters into consideration, and the focus of the applicant’s submissions was on the inspector’s report. It was argued she had wrongly taken the view that condition 18 of the revised planning permission fell to be interpreted in the light of what she viewed as the more restrictive Guidelines of 2012 and her decision was accordingly wrong in law. With this in mind, I turn to examine the report of the inspector.
The role played by the Guidelines in the report of the inspector
20. The s. 5 reference asked the Board to determine whether the goods sold by the applicant from Unit 5 are those permitted to be sold pursuant to condition 18 of the permission. Condition 18 identified certain goods which were permitted to be sold by reference in particular to two separate phrases, “bulky household goods” and “goods generally sold in bulk”. McCarthy J. in In re XJS Investments Limited [1986] I.R. 750 at 756 made it clear that planning documentation did not come to be interpreted with the benefit of the canons of construction applicable to Acts of the Oireachtas or subordinate legislation and went on then to say:-
“They are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning.”
21. However, I accept the proposition advanced by counsel for the applicant that condition 18 did import an extended or technical meaning to bulky goods, in that the phrase used in the condition was expressly linked to and said to be defined by Annexe 1 of the Guidelines of 2000. I accept that the words so properly understood do not connote merely goods which are physically bulky.
22. It is not disputed by the parties that in the interpretative process must look to the Guideline expressly identified in the text of condition 18 itself i.e. the Guidelines of 2000. What is not agreed by the parties is the impact of the Guidelines of 2012. Section 28 of the Act of 2000 requires the Board to have regard to the guidelines when performing any of its functions under the Act “where applicable”.
23. In McEvoy v. Meath County Council [2003] 1 IR 208, Quirke J. considered the meaning of the phrase “have regard to” in the context of s. 27(1) of the Act of 2000 which required that a planning authority should have regard to any regional planning guidelines when making a development plan. Quirke J. stated the following at p. 223:-
“It is clear from the foregoing authorities and in particular the decision of the Supreme Court in Glencar Exploration plc. v. Mayo County Council (No. 2) [2002] 1 IR 84, that the obligation imposed upon the respondent by s. 27(1) of the Act of 2002 to ‘have regard to’ the guidelines when making and adopting its development plan does not require it rigidly or ‘slavishly’ to comply with the guidelines’ recommendations or even necessarily to adopt fully the strategy and policies outlined therein.”
24. He went on to say at p. 224 that the duty imposed upon a planning authority was “to inform itself fully of and give reasonable consideration to any regional planning guidelines”, and that while it was desirable the planning authorities should when making and adopting development plans, seek to accommodate the objectives and policies contained in regional and planning guidelines, they were not bound to comply with guidelines.
25. Clarke J. adopted this view in Tristor Limited v. Minister for the Environment, Heritage and Local Government [2010] IEHC 397. He noted that the retail planning guidelines in that case were for entirely understandable reasons expressed in general terms, and said that a requirement that a deciding authority have regard to guidelines is not the same as requiring it to apply that guideline, and that it cannot be said that the Board is bound by the retail guidelines in coming to its decision.
26. It seems to me that s. 28 does not always require the Board to have regard to the most up to date Guidelines if other, or, as here, earlier, Guidelines are those applicable to the matter before it. The meaning of condition 18 is expressly limited to the Guidelines of 2000 and it is these which are relevant in the interpretation process. The requirement in s. 28 that the Board and, ipso facto, an inspector carrying out a Board appointed function, have regard to the Guidelines cannot have the effect that the express words of condition 18 are to be read as containing a reference to the later Guidelines. This does not mean that the Guidelines of 2012 cannot inform the interpretative process, and it seems to me that the effect of s.28 is to mandate the Board to consider them, and in particular to take note of any clarification or interpretative assistance offered by them. But if an application of the Guidelines of 2012 leads to a result which differs from that which would result from the Guidelines of 2000 the latter must prevail. To hold otherwise would mean that the express language of the condition could be displaced or replaced by a later administrative act of the Minister in issuing new Guidelines
27. The inspector in her report made express reference to the Guidelines of 2012 and makes no express mention of the Guidelines of 2000. She does, however, use the language of the Guidelines of 2000 and it seems to me that the Guidelines of 2012 do not form the only element in her decision. She did however accept the argument made in an opinion of counsel which was available to her that there was a certain lack of clarity in the Guidelines of 2000 which she said has been “recognised”, and that the Guidelines of 2012 had removed “the degree of flexibility” in the definition of bulky goods by removing express reference to goods which required large floor areas to display them or goods which while not large individually are part of a collective purchase that would be considered bulky.
28. Insofar as the inspector did come to her conclusion and recommendation based on what she perceived to be the less flexible test found in the Guidelines of 2012, she was applying, in my view, an incorrect or irrelevant test and the interpretative process had been guided primarily by the Guidelines of 2000 as these were the ones expressly identified as relevant in condition 18 itself. If the inspector’s decision or her recommendation were substantially based on a view that the Guidelines of 2012 imported a tightening of the definition of bulky goods, she would have fallen into error. I accept the argument of the applicant that such an error would be an error of law were it to find its way into the decision making process.
The facts as identified by the inspector
29. The inspector factually identified the various sets or shopping areas in the store and noted that many of the items sold were what she described as “small non-bulky commodities” that are “manageable by customers without necessitating car transport”. She identified certain items such as bathroom equipment which again she said included a high proportion of non-bulky merchandise. She described the bedroom set as being devoted to the display of bed linens, pillows, duvets etc. and noted the fact that, while beds form part of the display, the more bulky items such as beds and mattresses were not for sale in the store. She went on to identify certain items which were bulky such as garden equipment, mats, large storage boxes and items of furniture which she accepted were bulky. She took particular note of the fact that one wall in this part of the store was dedicated to the display of a particular type of scented candle.
30. Her conclusion was that Unit 5 was used for the sale of both bulky and non-bulky items of merchandise. She took the view in the light of her identification of certain non bulky items that the store did not “specialise” in the sale of bulky goods and she pointed to the fact that a large portion of the store was devoted to the sale of what she described as non-bulky products that can easily be carried away on foot.
31. I further note that the inspector goes on to compare such goods to those which could “easily be carried away on foot” and in my view, while the report lacks some clarity of expression, the inspector identified two ends of the spectrum, goods that were easily transported on foot and those necessitating car transport, and this was a proper approach. Of significance is the fact that the inspector took the view that while certain items on sale in store did require large display areas, the space requirements of the store arose largely from the volume of goods displayed and not the bulky nature of the individual items, and she identified that there were large areas in the store dedicated to the display of small items such as candles, dust pans and cooking utensils.
32. The applicant argues that the inspector misdirected herself in the test, and that her understanding of what constituted bulky goods was overly focused on the physical size of those goods and that she failed to have regard to the second and third part of the definition of bulky goods in Annexe 1 of the Guidelines of 2000, namely that bulky goods include goods the display of which required large floor areas, or which while not large individually are often part of a collective purchase which itself may be bulky.
33. It is argued by the applicant that the inspector wrongly linked the definition of bulky goods to those necessitating car transport, and that it was incorrect to treat the form of transport as central in the definition. I accept this argument and bulky goods as defined in the Guidelines of 2000 are goods which would normally be taken away by car, and not ones which of necessity should be taken away by car.
34. The applicant also argues that the inspector makes no reference whatsoever to the third element in the test identified in the Guidelines of 2000 namely individual items that would not be themselves bulky but which would be part of a collective purchase which would be bulky. No express reference was made to this test, although the inspector did say that the removal of this particular identifying feature by the Guidelines of 2012 tightened the scope and “removes ambiguity” as to the meaning of bulky goods. In placing emphasis on she describes as the “tightening” of the scope of bulky goods by the Guidelines of 2102, the inspector did fall into error. What she described as the less flexible and narrower definition in the Guidelines of 2012 ought not have informed her decision, as the exercise in which the inspector was engaged was an interpretation of planning condition 18, in which the Guidelines of 2000 were expressly incorporated. Thus, insofar as the inspector did take the view that goods had to be bulky, and disregarded the element of the definition which included non-bulky items which ordinarily formed part of the collective purchase, she fell into error and the error is one of law or interpretation.
Did the inspector misunderstand the meaning of bulky goods?
35. The applicant also urges on me the argument that the inspector failed to understand the definition of bulky goods in that she failed to have regard to the fact in particular that the Guidelines of 2012 identified “furniture and furnishing”, “household appliance” and “tools and equipment for the house and garden” as being relevant categories of goods which would be characterised as bulky. It is not doubted that the store does not sell what might generally be speaking the terms “household appliances”, such as washing machines, fridges etc. nor does it sell furniture such as beds, tables etc. It is argued, however, that the store does sell furnishings and tools and equipment for the house and garden.
36. I do not accept that the Retail Guidelines intended every item of household equipment or furnishing to qualify as bulky goods. Nor do I accept what is urged by counsel for the applicant that bulky goods must simply be read as items “needed for the house and garden”. This interpretation ignores the simple fact that the Guidelines, whether they be the Guidelines of 2000 or 2012, clearly envisage that the goods either be individually bulky, in the sense that they are bulky or large in size, or that they be sold normally as part of a bulky purchase. A candle could not be defined as a bulky good in either sense, although on a broad interpretation a candle is an item of equipment for the house or garden. Equally, not all furniture is bulky and furniture could be distinguished from a fixture by reference to the fact that a fixture is not movable.
37. Reference was made in the submissions to the Board that some of the goods sold in the IKEA store are goods which are not individually bulky. The inspector made reference to the IKEA comparison, and stated that unlike in IKEA the bulky items of furniture in Unit 5 are not themselves available for sale, while the IKEA store is primarily involved in the sale of bulky flat pack furniture. It seems to me that the inspector did fall into error in considering the IKEA comparator in that condition 18 leaves no scope for the sale of a given percentage of non-bulky goods such as in the IKEA profile. Condition 18 restricts the retail element to retail warehousing development only and restricts the range of goods to bulky household goods and goods generally sold in bulk. The restriction does not allow a percentage of non-bulky goods to be sold, and no such element of mixed retail goods is found in condition 18. Accordingly, it seems to me that the IKEA market hall does not offer any guidance in the interpretation of condition 18, and the inspector was incorrect to consider IKEA as an appropriate comparator.
38. The inspector then, it seems to me, did fall into error in her reliance on the Guidelines of 2012 and in failing to have proper regard to the fact that certain goods envisaged by condition 18 may not themselves be bulky but may be part of a bulky purchase. She also erroneously considered the IKEA comparator. However, she did not fall into error in her view that not all items of household equipment are to be considered bulky for the purpose of the interpretative process.
The role of the inspector
39. It is the Board’s decision that is challenged and is open to challenge in this judicial review and not the report of the inspector. I return below to consider whether the Board did as a matter of fact make its decision in reliance on the inspector’s report or whether the Board engaged in an exercise of developed reasoning and what process was engaged by the Board in its conclusion, and I turn now to examine the interplay between the Board and the inspector in planning matters.
40. Section 146(1) of the Act of 2000 allows the Board to assign a person to report in any matter and the inspector was appointed pursuant to that section. Subsection 2 requires the person so assigned to make a written report which shall include a recommendation. Of more significance is the fact that the Board is required to consider the report and the recommendations before determining the matter, but this does not always mean that the Board must be taken to have based its decision on the inspector’s report
41. The interplay between the Board and the inspector was examined by Ryan J. in Michael Cronin (Readymix) Limited v. An Bord Pleanála [2009] IEHC 553 and by Kelly J. in Cork City Council v. An Bord Pleanála [2006] IEHC 192. In particular, Kelly J. took the view that as the Board did not differ from the recommendations of the inspector, and where there was no dissent from her line of thought it was reasonable to conclude that the Board had adopted the reasoning of the inspector in arriving at its decision.
42. The Board is required to have regard to the report but, to borrow the phrase of Quirke J in McEvoy v. Meath County Council, it may not do so by slavishly following the report. As stated by O’Neill J. in Stack v. An Bord Pleanála (Unreported, High Court, 11th July, 2000):-
“it is well settled that the Board, need not accept a recommendation of an inspector and has no obligation to explain a rejection of an inspector’s recommendation. All that is required of the board is that there be some material to support its decision and that it gives reasons for its decision.”
The test for judicial review
43. The test that I must apply in considering whether certiorari lies is well settled. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Finlay C.J. at p. 72 identified the threshold which is required to be passed by an applicant in an application for judicial review on the grounds of unreasonableness:
“I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision making authority has acted irrationally, it is necessary that the applicant should establish to the satisfaction of the court that the decision making authority had no relevant material which would support its decision.”
44. Charleton J. in Weston Limited v. An Bord Pleanála [2010] IEHC 255, identified the class of material which must be available to a decision making body to support its decision:-
“The presence in the planning file, including the report to the manager, or in the case of An Bord Pleanála, the report of the inspector, of any material which could rationally justify a refusal… is sufficient to support the lawfulness of a decision.”
45. The test then establishes quite a high threshold, the decision will be impugned for lack of reasonableness only if it can be shown that there was no material before a decision making body which could have led it to the conclusion reached. With admirable clarity, Kearns J. in Evans v. An Bord Pleanála identified the court’s concern as being with the decision making process itself and in that context he identified the sole question for the court as:-
“Was there material upon which the decision maker could make the decision which it did make? If so, was the decision taken, one which flew or which flies in the face of fundamental reason.”
Judicial review will also lie if the Board fell into an error of interpretation, or an error of law. I turn now to examine to decision of the Board and its process
The reasoning process of the Board
46. The decision of the Board expressly stated that it had regard to the report of the inspector. The Board met on 12th March, 2013 and considered the submissions on the file and the report of the inspector, and deferred the case for consideration at a further Board meeting which was held on 16th April, 2013. The Board direction identified eight matters to which it had regard, including the submissions on file “in relation to the collective purchase of goods”. It also expressly made reference to the Guidelines of 2000 and its conclusion was linked to Annexe 1 of those Guidelines.
47. It is noteworthy, and was drawn to my attention by counsel for the respondent, that the draft decision of the Board had made reference to the Guidelines of 2012 and the definition of retail warehouse and bulky goods in those Guidelines rather than those of 2000. That reference was not found in the final report and was urged upon me that this shows the Board had engaged in a process of reasoning and had removed the reference to the Guidelines of 2012. I accept that proposition, and it seems to me that the Board did not slavishly follow the inspector’s report and was not influenced by the error which I have identified in that report, namely the view was taken by the inspector that she was to be guided in her understanding of goods which were truly characterised as bulky by the Guidelines of 2012 rather than, or as well as, those of 2000. Further, the Board did have regard to the second and third element of the definition in the Guidelines of 2000, namely that certain goods not large or bulky in themselves may form part of a collective purchase which is itself bulky, or that certain goods not individually bulky may generally be sold in bulk, or require large floor space for display..
48. In my view, the Board did have regard to the inspector’s report but did not do so slavishly and the error which I have identified in the inspector’s report did not find its way into the decision of the Board and accordingly the decision of the Board was not impacted by that error.
49. The Board further identified as matters to which it had consideration, the submissions on file, including submissions in relation to the collective purchase of goods and did have regard to the class of goods normally purchased in bulk. In that regard, it must be noted that the applicant made very substantial submissions to the Board on 11th April, 2012, and supplemental submissions on 8th May, 2012, by way of a response to the observations submitted by Sligo County Council and the Board had these before it as part of its consideration. Part of that material included submissions “in relation to the collective purchase of goods”, and this is the precise phrase used in the Guidelines of 2000 which the inspector identified as having been removed or altered by the Guidelines of 2102. The Board in my view had regard to goods which are part of a collective purchase, and shows the procees by which it distinguished its view from that of the inspector.
50. In Evans v. An Bord Pleanála, Kearns J. pointed to the legislative requirement that the Board have regard to certain matters as permissive in nature and creating an obligation to consider something rather than requiring that the condition be followed or slavishly adhered to. The Board had regard to the Guidelines of 2000 and that was its primary function in the context of the reference to those Guidelines in condition 18. The planning permission is expressly referable to those Guidelines and not to any later guidelines. Equally, the Board had regard to the Guidelines of 2012 and the Board expressly made reference to these Guidelines in its final determination. These Guidelines were identified in the various submissions received by the Board and to which it expressly said it has regard.
51. There was before me the draft order, an incomplete direction, both of them undated, the complete direction signed on 13th May, 2013, and the final decision. It is clear from this sequence of documents and from the matters which were omitted in the later documents, that the Board did have regard to the Guidelines of 2012 and regarded them as not being determinative of its interpretative process. In this, the Board was correct and fell into no error in its process or error of interpretation.
Possible impacts on town centre retailing: an irrelevant consideration?
52. The Board also noted that the change of use it identified in HSM could have had “material external impacts”, such as a possible impact on town centre retail development and parking and traffic. The applicant argues that the Board had no evidence on which to come to this conclusion which it is said was speculative.
53. The Guidelines, inter alia, aim to protect the viability and vitality of city and town centres by identifying particular classes of goods that may be sold in retail warehouses and shopping centres in out-of-town locations. They identify a general view that retail warehouses do not fit easily into town centres given their size requirements and the need for car parking etc. For that reason, and to weigh the different objectives and policy considerations and to avoid unnecessary damage to high street retail units in towns and cities, the Guidelines for retail and warehouse development limited these to the sale of bulky household goods.
54. Matters such as traffic and parking are planning concerns. According to the judgment of MacMenamin J. in Tracey v. An Bord Pleanála [2010] IEHC 13 the policy considerations identified are
“a critical consideration in preventing adverse impact on the viability and integrity of traditional town centres”
55. In my view the Board was entitled to take into account such general planning considerations, and it did so specifically for the purposes of analysing the use of Unit 5 and coming to a conclusion that the use had changed materially. This is a planning consideration and one within the competence of the Board to make and indeed had the Board failed to have regard to this consideration it might well have failed to fully consider the meaning and import of condition 18.
Conclusion
56. On the face of the documentation before me, the Board did have sufficient and ample material before it on which to make its decision. It did have the inspector’s report and substantial submissions from the applicant. It had photographs, an opinion from senior counsel, the relevant planning condition itself and the history of the site. I must ask myself whether the decision to which it came flies in the face of fundamental reason, or arose from an interpretative error.
57. In my view, the Board was entitled to take the view that it did and it had before it facts upon which it could reasonably come to the conclusion now sought to be challenged. The Board had evidence and submissions to which it had regard and indeed its process was shown. The Board is a decision making body and its process must be judged as having properly been made if it can be shown that it did engage with these facts and came to its decision based on these facts not by way of a slavish adherence to the material but as a result of a reasonable analysis.
58. I find that the inspector’s report did contain an interpretative error in that she incorrectly placed emphasis for the purposes of her analysis on the Guidelines of 2012. Those Guidelines were relevant only and insofar as that they do not differ from the Guidelines of 2000 which are specifically referred to in condition 18 sought to be analysed and interpreted by the Board. The Guidelines of 2012 are an interpretative tool but in any conflict between those of 2000 and those of 2012 the Guidelines of 2000 must prevail. The error of the inspector, however, in my view, did not find reflection in the Board’s decision and this fact shows the extent to which the Board engaged in a reasoned analysis of the fact before it, and the extent to which it correctly and properly weighed the evidence and submissions in coming to its reasoned conclusion.
59. The Board’s decision may be set aside if it is unreasonable or irrational, or was made following a mistake of law. It would be unreasonable had it been made without evidence and I find it not unreasonable in this sense. It would have been irrational had it been made following a blind acceptance of any one or other of all the material before it. It was not irrational in that sense. Had the Board failed to properly take account of the Guidelines of 2000 in the interpretative process, it would have fallen into an error of interpretation amenable to review by the court. The decision did not so fail.
60. I adopt the analysis of O’Neill J. in M&F Quirke & Sons v. An Bord Pleanála [2009] IEHC 426, with regard to the import of errors in an inspector’s report. At para. 9.9 he said the following:-
“In my judgement, any error on the part of the inspector in this regard, could not vitiate the entirely separate exercise by the respondent of its self contained statutory jurisdiction to make the decision required from it. The status of the error in question was no more than that of any other piece of mistaken information which the respondent was free to consider and reject in the overall discharge of its statutory function. The decision of the respondent, on its face, contains no such error …”
61. It goes without saying that the Board is the body which enjoys the statutory power to make a decision pursuant to s. 5. It did not fall into any error of process. Insofar as there is an error of interpretation in the inspector’s report, it did not find its way into the decision of the Board. The decision to which the Board came was one which was within jurisdiction and was neither irrational nor unreasonable, nor was it made as a result of a mistake of law.
62. I refuse the relief sought.
Ross v An Bord Pleanála (No.1)
[2015] IEHC 256
JUDGMENT of Mr. Justice Noonan delivered the 23rd day of April, 2015.
Introduction
1. In the within proceedings, the applicants seek an order of certiorari quashing that part of the decision of the respondent granting planning permission, being retention of a replacement mobile home at Ballinoulart, Cahor, County Wexford, dated the 27th of February, 2014 that requires compliance with Condition 2. The applicants further seek a declaration that the respondent acted ultra vires the provisions of the Planning Acts 2000-2013 in granting the permission or alternatively, a declaration that insofar as the powers of the respondent purporting to permit the limitations on the use of private property as set out in the decision, the same are in breach of Articles 40.1, 40.3.2 and 43 of the Constitution. With regard to the latter relief, the applicants accept that the court cannot adjudicate on that claim in the absence of the Attorney General being joined as a notice party.
Background Facts
2. The first named applicant owns a small plot of land comprising 0.1010 hectares (approximately a quarter of an acre) situated at Ballinoulart, Kilmuckridge, County Wexford. The site is situate in a coastal location south of Courtown. The first applicant purchased the site in 1973 together with a mobile home which had been located thereon since in or about 1959. On acquiring the property, he placed a new mobile home on the site. It is accessed by an unpaved track. There are no services. Since that time, the first applicant together with his family, including the second applicant, his son, have used the property as a holiday home enjoying many vacations there.
3. In the summer of 2010, the mobile home was irreparably damaged by fire and was replaced by a new mobile home of the same dimensions and in the same location as the original.
4. On the 20th of January, 2011, the planning authority, Wexford County Council (“the Council”), served a notice on the first applicant warning him that an enforcement notice under s. 154 of the Planning and Development Act 2000 (as amended) (“the PDA”) may be issued against him. Arising from this warning letter, the second applicant, on behalf of his father, made a number of submissions and observations in a letter of the 8th of February, 2011. In this letter, the second applicant pointed to the fact that many family holidays had been spent in the mobile home since 1973 and he enclosed photographic evidence. The first applicant had become aware in June, 2010 that a fire had severely damaged the mobile home leading to the necessity for its replacement. He submitted that this did not involve a breach of any planning regulation given that there had been a mobile home on the site since 1973 and probably 1959. He further submitted that the structure had been on the land in excess of five years and in the event of proceedings being taken by the local authority, they would be vigorously defended.
5. In a letter of the 10th of August, 2011, the local authority accepted that the original mobile was in situ for many years and was destroyed by fire damage. It was suggested that the replacement mobile home however was larger and in a new location on the site and it remained the Council’s view that planning permission was required. Notwithstanding that view, the Council indicated that it intended referring the case under s. 5(4) of the PDA to the respondent for a determination as to whether the development in issue was exempted development. The applicants were further informed that no enforcement action would be taken until a decision was issued by the respondent.
6. Arising from the s. 5 referral, the second applicant made further written observations to the respondent. He clarified some factual matters and made legal submissions as to why planning permission was not required.
7. The respondent made its decision on the s. 5 referral on the 25th of January, 2012 and determined that the replacement of the mobile home was development and was not exempted development. The respondent’s decision was accompanied by a notice advising that its decision may be challenged by way of judicial review only. No application in that regard was made by the applicants.
8. Instead, the second applicant lodged an application for retention planning permission for the mobile home on the 23rd of September, 2013. This was grounded on a planning application form dated the 15th of September, 2013. This is a pro forma document where information was furnished under various headings including the following:
“9. Description of proposed development:
(Brief description of nature and extent of development)
Retention of replacement of mobile home…
15. Where the application refers to a material change of use of any land or structure or the retention of such a material change of use:
Existing use (or previous use where retention permission is sought)
Mobile home
Proposed use (or use it is proposed to retain)
Replacement mobile home
Nature and extent of any such proposed use (or use it is proposed to retain)
The retention for replacement of mobile home proposal is for the same use it has been used since 1973 and that is for use for holidays during summer.”
9. The first applicant completed a further document furnishing supplementary information required in the case of single rural housing applications. In this, he indicated a willingness to accept an occupancy condition for a period of five years and further referred to the fact that his wife was a member of the local community going on holidays in the area her whole life.
10. In its decision of the 15th of November, 2013, Wexford County Council refused the application for the following reasons:
“1. The development is considered contrary to Objective CZM09 in the Wexford County Development Plan 2013 – 2019, which states that it is an objective of the Council to restrict development outside the boundaries of existing coastal settlements to that which is required to be located in that particular location. A mobile home does not have this particular locational requirement and, therefore, would be contrary to this policy and therefore, contrary to the proper planning and sustainable development of the area.
2. The development is considered contrary to Objective TM 34 in the Wexford County Development Plan 2013 – 2019, which states that it is an objective of the Council to prohibit the replacement of individual mobile homes and caravans in rural or urban areas except in extenuating circumstances. It is considered that the applicant has not demonstrated sufficient extenuating circumstances in this instance. Therefore, the development would be contrary to the proper planning and sustainable development of the area.”
11. The decision referred to two objectives of the Wexford County Development Plan 2013 – 2019 which are as follows:
“It is an objective of the Council:
Objective CZM09
To restrict development outside the boundaries of existing coastal settlements to that which is required to be located in that particular location such as:
• Development to support the operation of existing ports, harbours and marinas;
• Agricultural development;
• Tourism related facilities appropriate to the particular coastal location (other than new build holiday home accommodation) where there is a demonstration of a location or resource based need;
• Other developments where an overriding need is demonstrated.
New development shall be prohibited where it poses a significant or potential threat to coastal habitats or features, and/or where the development is likely to result in adverse patterns of erosion or deposition elsewhere along the coast and where it is likely to affect the integrity of Natura 2000 sites…
Objective TM34
To prohibit the replacement of individual mobile homes and caravans in rural or urban areas except in extenuating circumstances and where permitted the planning permission will only be for a limited period.”
The Appeal to the Respondent
12. In an undated document, the first applicant submitted an appeal from the decision of the local authority and set out four grounds. The first was that it was unfair to deprive the applicant of his long established entitlement solely because of the damage occasioned by the fire. Secondly, he submitted that the development was not in fact contrary to Objective CZM09. Thirdly, he disputed that the damage by fire did not amount to an extenuating circumstance within the meaning of Objective TM34. Fourthly, the applicant accepted that while he did not judicially review the decision of the respondent in the s. 5 referral, he disputed that the mobile home was not in fact exempted development.
13. The respondent’s inspector attended at the site on the 4th of February, 2014 for the purposes of an inspection. In her report to the respondent, the inspector identified the development as:
“Retention of a replacement mobile home proposed for the same summer holiday use as former mobile home use since 1973.”
14. She described the planning application in the following terms:
“According to the application, the proposed use of the mobile home as a holiday home during summer months is a use that commenced in 1973.”
15. The inspector, in her assessment of the application, noted a number of points including that a strong case had been made in the appeal to the effect that the replacement of the mobile home was de minimis although the decision on the s. 5 referral was not consistent with that argument. She did however consider that the applicant had made a strong case to support the claim that the replacement was justified on the basis of extenuating circumstances as provided in Objective TM34. She also concluded that the development had minimal visual impact on the local environment. Whilst the development plan reasonably discouraged mobile home development in sensitive landscapes, the inspector felt that given the strong case made regarding replacement of the original structure, the lack of significant visual or other impact on the landscape, a grant of permission would be reasonable, not in material conflict with the development plan objectives and not seriously injurious to the visual and recreational amenities or landscape characteristics of the location. She believed that the subject proposal was atypical of mobile home development in terms of limited adverse impact, the established use, the limitation of use to holiday home use in summer months for holiday purposes, and limited relevance of the rural settlement policy objectives.
16. In the light of the foregoing, the inspector arrived at the conclusion that a grant of permission for retention was recommended. She further recommended a condition confining the use of the holiday home to the applicant with an exclusion of subletting or sale. She made other recommendations not material to the issues herein.
17. On the 26th of February, 2014, the respondent issued its decision to grant permission for the development in accordance with the plans and particulars based on the reasons and considerations and conditions set out therein. Under the heading “Reasons and Considerations” the respondent said:
“Having regard to the similar nature and scale of the replacement mobile home the retention of which is proposed relative to the former mobile home that was located on the site since 1973, the circumstances leading to the replacement of the former home, the characteristics of the site location towards which there are no public views of the proposed development and, the limited summer holiday use of the mobile home by the owner, it is considered that, subject to compliance with conditions set out below, the proposed development would not seriously injure the visual and recreational amenities and character of the area, would be in accordance with the settlement policies and objectives along with the policies relating to extenuating circumstances set out under TM34 and CZM09 of the Wexford County Development Plan 2013 – 2019 and would, therefore, be in accordance with the proper planning and sustainable development of the area.”
18. Four conditions are attached to the permission. The first is a fairly standard condition requiring the development to be retained and completed in accordance with the plans and particulars lodged with the application. Conditions 3 and 4 are not material and Condition 2, which gives rise to the within proceedings, provides as follows:
“2. The use of the replacement mobile home shall be confined to use as a holiday home during summer months. It shall not be let or sold for use at the site location as a holiday home or for any other purpose.
Reason:
To ensure that the development for retention is confined to that which is in accordance with the settlement policies within the current development plan and the interest of the proper planning sustainable development of the area.”
The Pleadings
19. In their statement of grounds, the applicants rely on six grounds:
1. The reference to “summer months” in the condition is vague and uncertain and an unlawful and arbitrary restriction of the applicant’s use and enjoyment of the property and an impermissible interference with their right to private property.
2. Whilst it is disputed that planning permission was required to replace the mobile home, its retention was in fact permitted by the existence of “extenuating circumstances” as per TM34.
3. The restriction on alienation is a disproportionate interference with the applicant’s right to own property and is an unequal treatment of the applicants vis-à-vis the owners of nearby property. Thus, it discriminates against the applicants and is unlawful.
4. The applicants were given no opportunity to address the respondent on the two aspects of Condition 2 prior to their imposition in breach of the requirements of natural justice. This ground has been abandoned.
5. Insofar as the PDA permits such a condition, it is contrary to Articles 40.1, 40.3.2 and 43 of the Constitution. This ground underpins the claim for a declaration that the powers conferred on the respondent permitting such a condition are unconstitutional and thus cannot be proceeded with in the absence of notice to the Attorney General.
6. The grant of permission was ultra vires the respondent because it was not an unlawful structure requiring retention and did not contravene Objective TM34.
20. The respondent in its statement of opposition joins issue with the applicant’s statement of grounds. In relation to grounds 2 and 5, it pleads that the applicants are bound by the unchallenged decision of the respondent in the s. 5 referral. In relation to Condition 2, the respondent pleads that insofar as it restricts the applicants’ use to the summer months, this is what they applied for and this is what they got. Alternatively, if they were in doubt as to what this meant, they could have sought clarification from the respondent under s. 146A of the PDA but failed to do so.
21. The respondent further pleads that Condition 2 is not severable from the planning permission as a whole insofar as it would leave in situ a permission never intended by the respondent.
Submissions
22. Mr. Finlay SC on behalf of the applicants submitted that Condition 2 is unlawful because the development objective sought to be achieved cannot in fact be achieved by the condition. In that regard, he relied on Killiney and Ballybrack Development Association Ltd v. Minister for Local Government [1978] I.L.R.M. 78 and also Ashbourne Holdings Ltd v. An Bord Pleanala [2003] 2 IR 114. Accordingly, it was argued that the condition was not “expedient” to the development within the meaning of s. 34(4) of the PDA and was thus ultra vires.
23. It was further submitted that the decision under challenge contravened s. 34(10) of the PDA in failing to comply with the requirement to state the main reasons for the imposition of the condition, where the reason actually stated was irrelevant to the decision. The applicants further contended that insofar as the condition is personal to the first applicant, it is invalid. Reference was made to authorities which showed that planning conditions enure for the benefit of the lands and are not properly regarded as personal to the applicant for such permission. Reliance was placed on Mason v. KTK Sand and Gravel Ltd (Unreported, High Court, Smyth J., 7th May, 2004). The applicants also referred to Flanagan v. Galway City and County Manager [1990] 2 I.R. 66, where the members of Galway County Council passed a resolution directing the county manager to grant a planning permission in circumstances where the councillors took into account the personal circumstances of the applicant and his employees and thus did not restrict themselves to considering the proper planning and development of their area.
24. Finally, the applicants argued that if the condition in question is ultra vires, it ought to be regarded as severable from the rest of the planning permission and in that respect relied on Bord na Mona v. An Bord Pleanala [1985] I.R. 205.
25. Mr. Foley BL on behalf of the respondent made objection to a number of the applicant’s submissions, in particular those relating to the failure to give adequate reasons pursuant to s. 34, on the basis that these were not grounds upon which leave to seek judicial review had been granted. In a ruling I delivered during the course of the trial, I accepted that submission and ruled that the applicants were precluded from making submissions based on either a failure to give any, or any adequate, reasons for the imposition of Condition 2 or from arguing that the condition is either irrational or unreasonable.
26. The respondent further argued that the applicants could not complain about the condition on the basis that a permission had been granted which was precisely what the applicants applied for. The suggestion that the condition regarding what was meant by “summer months” was vague and uncertain could, if the applicants really wanted clarification, have been the subject matter of such clarification pursuant to s. 146A of the PDA but the reality was that the applicants did not want clarification but simply no restriction of any kind. In that regard, the applicants had failed to exhaust their remedies and the court ought to exercise its discretion against granting relief.
27. The respondent contended that the applicants are precluded from now seeking to claim that the development did not in fact require planning permission and is exempted on the basis that this was already the subject matter of the s. 5 referral which was not challenged by the applicants. It was further said that the applicants could not be heard to complain about the first named applicant’s personal circumstances being taken into account because in making the application, these had been expressly relied upon as constituting “extenuating circumstances”. It was submitted that in any event, the condition could not be viewed as being severable from the permission as a whole. If the applicants had sought year round use in the first instance, the application might well have been refused and thus what would remain would be a permission never contemplated by the respondent. Therefore, if the condition is invalid, the entire permission must be quashed, a relief which is not sought by the applicants and confers no benefit on them.
28. The respondent relied on the recent judgment of this court in Ratheniska v. An Bord Pleanala [2015] IEHC 18, in which Haughton J. reviewed many of the relevant applicable legal principles to applications for judicial review against bodies such as the respondent. The authorities established that the respondent’s decisions enjoy a presumption of validity until the contrary is shown and as an expert body, a significant degree of deference should be shown by the court to decisions made within its own area of particular expertise.
Discussion
29. It is immediately apparent that when one has regard to the submissions made by the applicants in this case, they appear to bear little relation to the grounds upon which leave was granted herein. I have already adverted to this issue in the ruling above referred to.
30. Turning to the specific grounds upon which leave was granted, as already indicated, Ground 4 has been abandoned and Ground 5 cannot be proceeded with in the absence of notice to the Attorney General. Grounds 2 and 6 can be conveniently grouped together because both in effect make the same point, i.e. that the applicant’s mobile home did not require retention permission because its use was permitted by “extenuating circumstances”. This proposition is in my view unstatable. This issue was already canvassed in detail by the applicants with the planning authority, who referred it to the respondent under s. 5 of the PDA for determination. That determination was made by the respondent and could not be clearer. The development requires planning permission. The applicants were advised of their right to seek judicial review of this determination and they declined to do so. They cannot in my view now be heard to say that the development never required planning permission in the first place. The applicants are clearly estopped and precluded from attempting to re-agitate an issue that has already been conclusively and validly determined against them.
31. What remains therefore are Grounds 1 and 3. Ground 1 complains that Condition 2 is invalid in relation to the “summer months” restriction because it is vague and uncertain. There are a number of points to be made about this. If there is any vagueness and uncertainty about this condition, it was introduced by the applicants. As alluded to above, in their application form for planning permission the applicants expressly stated that the nature and extent of the use of the development that they proposed to retain was:
“The retention for replacement of mobile home proposal is for the same use it has been used since 1973 and that is for use for holidays during summer.”
32. There is no doubt that the relevant county development plan, whilst not absolutely prohibiting a retention of user of the kind proposed by the applicants, strongly discourages it. Thus, Objective TM34 makes clear that a development of the kind proposed by the applicants, namely the replacement of a mobile home, is prohibited except in extenuating circumstances and even then, permission would only be granted for a limited period. Clearly therefore, in order to have any prospect of obtaining a retention permission, the applicants had to make a strong case based on their personal circumstances that same were extenuating. Indeed, it is difficult to conceive how the concept of extenuation could ever be other than referable to the personal circumstances of the individual applicant. Thus, the applicants sought to persuade the planning authority and subsequently the respondent that the impact of the development on the local environment was significantly ameliorated by the limited use historically made by the first applicant and his family of the mobile home.
33. If the applicant’s real complaint is that the meaning of “summer months” is vague and uncertain, it is surprising to say the least that they made no enquiry to establish what this actually meant. Indeed, it appears from submissions made by counsel for the respondent that the respondent has already come to a view on this and if certainty was required, all the applicants had to do was ask. They refrained from doing so either informally or by way of referral under s. 146A. In my view, there was an onus on the applicants to make some attempt to seek clarification of this condition if they required it before moving the court in judicial review proceedings. See in that regard Donegal County Council v. O’Donnell (Unreported, High Court, 25th July, 1982).
34. Quite apart from that, it seems to me that the applicants have significantly shifted their position from complaining about vagueness and uncertainty to a complaint that the restriction of use to the summer months does not advance any legitimate planning purpose and is therefore not a condition which is “expedient for the purposes of or in connection with the development authorised by the permission.” – See s. 34(4) of the PDA.
35. In that regard, the applicants relied on the judgment of the Supreme Court delivered by Hardiman J. in Ashbourne Holdings following the earlier Killiney case. There is to my mind considerable doubt as to whether the applicants are entitled to advance this argument at all in circumstances where their grounds appear to make no reference to it. Leaving that consideration to one side for a moment, it is evident that an attempt has been made in this case to expand the grounds upon which leave was granted on the 10th of April, 2014 by the introduction of subsequent affidavits. The plaintiff’s solicitor, Mr. John Brannigan, swore an affidavit on the 4th of November, 2014 in which he said (at para. 3):
“It is not claimed that the restriction of the use to summer months is merely vague and uncertain (which it is), but more fundamentally, it is unequivocally claimed, either expressly or by implication, that the restriction of the use of the applicant’s mobile home to use as a holiday home for the summer months, or indeed to restrict its lawful use to any time is an oppressive, unlawful and repressive restriction on the applicant’s enjoyment of the land and the mobile home amenity.” (Emphasis supplied)
36. Thus, the applicants have gone from a position of obtaining leave from this court on the grounds that the user restriction to summer months is vague and uncertain to a position where they now allege that any restriction on use is unlawful. Whilst I do not think that the applicants ought to be permitted to even advance that argument in the circumstances, the proposition that no restriction on user can be imposed is devoid of any merit. Section 39(2) of the PDA provides:
“Where permission is granted under this Part for a structure, the grant of permission may specify the purposes for which the structure may or may not be used, and in case the grant specifies use as a dwelling as a purpose for which the structure may be used, the permission may also be granted subject to a condition specifying that the use as a dwelling shall be restricted to use by persons of a particular class or description and that provision to that effect shall be embodied in an agreement under section 47.”
37. Indeed, in Mr. Brannigan’s affidavit and a subsequent affidavit of the second applicant, it is sought to suggest that in fact the applicants use the mobile home year round and not just in the summer. This is an ex post facto attempt to introduce evidence that was never put before the respondent and ought not be permitted.
38. With regard to Ground 3, the applicants complain that the prohibition on alienation is a disproportionate interference with the applicant’s right to own property. They contend that it is discriminatory in that it does not treat in equal manner the applicants with owners of nearby property in the same county. However, that latter argument was not pursued in the applicant’s submissions. Rather, it was again argued that a restriction on alienation is not expedient to the development and the respondent was not entitled to personalise the condition to the applicants. I do not consider that the judgment of Blayney J. in Flanagan is authority for the proposition that a planning authority, or on appeal, the respondent, cannot have regard to the personal circumstances of an applicant. Rather, what the court was concerned with there was an attempt by councillors to overrule a decision of the county manager by reference to criteria which were entirely irrelevant to planning considerations.
39. The situation here is quite different. The applicant’s entire application was predicated upon their personal circumstances. Indeed, it was essential for them to make the application on that basis if they were to have any hope of convincing the planning authority or the respondent of the existence of extenuating circumstances. Yet, the applicants now appear to suggest that those very circumstances may not be taken into account in imposing appropriate conditions. Here again it seems to me that the applicants are simply being confined to using the property for the purpose for which they have always used it. That was what they told the planning authority that they wished to retain.
40. There is of course no restriction on the applicant’s right to sell the land comprising the site. If a new purchaser were to seek to use the mobile home on the site, he or she would have to make an appropriate planning application. Whether extenuating circumstances could then be said to exist would of course be a matter for the planning authority.
41. It seems to me that the applicants herein made a very specific case that they should be treated as an exception to the rule for particular reasons personal to them. The respondent was ultimately convinced that an exception should be made because of those particular circumstances. There is no substance in my view in the contention that Condition 2 is not expedient to the development. The reason given for Condition 2 seems to me to be perfectly rational and understandable:
“To ensure that the development for retention is confined to that which is in accordance with the settlement policies within the current development plan and the interest of the proper planning and sustainable development of the area.”
42. Even if I were wrong in my view of the validity of Condition 2, I am satisfied that it cannot be severed from the permission as a whole. The respondent was confronted with a very particular set of personal circumstances in concluding that the grant of permission was appropriate in this case. Those included the facts that historically over the previous forty years, the property had only ever been used by the first applicant and his family and then only during the summer months. In the absence of one or both of those factors, it seems to me that the application would have been of a radically different nature and the respondent may well have taken a different view of it. If Condition 2 were to be severed from the permission, it would leave in place a permission that was never contemplated by the respondent. Therefore, even if Condition 2 were invalid, it seems to me that the entire permission would have to be quashed. Clearly this is not a result which can have any benefit for the applicants nor is it one sought by them.
43. For these reasons therefore, I will dismiss this application.
Cleary Composting Ltd v An Bord Pleanála
[2017] IEHC 458
JUDGMENT of Ms. Justice Baker delivered on the 10th day of July, 2017.
1. The applicant seeks an order by way of judicial review quashing the decision of An Bord Pleanála dated 8th June, 2015 by which it dismissed an appeal pursuant to its powers contained in s. 138(1)(b)(i) of the Planning and Development Act, 2000 (as amended) (“the PDA”). Declarations are sought in regard to the approach of the Board to the appeal and to the planning history of the composting activity to which the application related. It is argued that the decision was not supported by evidence and is unreasonable, and was made without fairness of process and contrary to natural justice.
Relevant factual background
2. The applicant is a limited liability company and the owner of Larchill Farm at Larchill, Monasterevin in the County of Kildare comprising approximately 300 acres which historically was an arable farm on which was cultivated under rotation a wide range of crops including spring wheat, winter barley, winter wheat, oil seed rape, peas and previously, sugar beet. The applicant carries on at Larchill a waste management or a “composting facility” involving the processing and storage of horticultural and agricultural waste and organic materials, and the compost product is used to replenish the soil on Larchill. The operation in respect of which the applicant first engaged the planning process involved the bringing of organic materials onto part of the site for processing, storing and composting of these materials on site and spreading on the lands as required. The applicant also conducted a research and development project as part of its business.
The planning history of the site
3. The facility has the benefit of three planning permissions granted by Kildare County Council in 1995, 2000 and 2006 for the erection of a number of sheds for the storage of grain, hay, fodder and ancillary works, references 95/0234, 00/0094 and 06/2553. The composting activities were commenced after the last of these planning permissions was granted in 2006.
4. The level of activity has increased and certain structures were constructed to facilitate the increased storage and processing of the increased load.
5. On 28th January, 2015 the applicant appealed the refusal on 23rd December, 2014 by Kildare County Council to grant planning permission to extend the existing composting facility to accept and treat an additional annual quantity of 12,000 tonnes of waste in the facility together with ancillary works to facilitate the extension of that activity (09.244409).
6. The Board refused the appeal having come to a view that the planning history of the facility did not support the application for an extension as the activity did not have the benefit of planning permission nor was it exempt under the Act.
7. The decision of the Board issued on 8th June, 2015 stated in simple and stark terms:
“Dismiss the said appeal under subsection (1)(b)(i) of section 138 of the Planning and Development, 2000, based on the reasons and considerations set out below.”
8. The reasons and considerations comprise part of the basis of challenge in this judicial review, and the application also challenges the manner by which An Bord Pleanála came to the decision to dismiss the appeal under the statutory power contained in s. 138(1)(b)(i).
Grounds of judicial review
9. Leave was granted by Noonan J. on 27th July, 2015 to bring application for judicial review. The grounds will appear in the course of this judgment and in summary are :
(a) The respondent misconstrued the nature of the existing use and activity, and its finding that the existing development was unauthorised was not supported by any evidence, was made without finding by a court competent to so determine, and where the planning authority had determined that the activity and works on the site were not development, or if they were development were exempt.
(b) The decision of the respondent was unreasonable or irrational.
(c) The respondent made its finding unilaterally, without notice and without affording the applicant opportunity to make submissions, and is contrary to fair procedures and natural justice.
Reasons given by the Board
10. The Board determined that it was “inappropriate for the Board to give any further consideration to the grant of planning permission”. The reasons were stated as follows:
“The subject application is for development comprising the extension of an existing composting facility. It has already been decided by An Bord Pleanála that:
(a) the existing composting facility is a waste management facility which does not have the benefit of planning permission or does not benefit from any exemptions from the requirement for planning permission under the Planning and Development Acts, 2000 – 2014 or regulations made thereunder, and
(b) the existing composting facility is a development which requires an environmental impact assessment and an appropriate assessment to be carried out.”
11. The Board, having noted previous planning decisions, went on to state that it considered it inappropriate to give any further consideration to the application:
“unless and until its planning status is regularised, as to do so would be contrary to orderly development and the proper planning and sustainable development of the area.”
12. The Board gave a second reason arising from the fact that retention permission is precluded by European law as follows:
“Furthermore, the option of seeking to extend the scope of the subject application to include the existing operations is not open to the Board, because s. 34(12) of the Planning and Development Act, 2000, as amended, precludes the Board from considering an application for retention of development where an environmental impact assessment or appropriate assessment is required.”
13. This is a reflection of the determination of the CJEU in Commission v. Ireland, Case C-215/06, [2008] ECR I-4911.
14. In conclusion, the Board considered that it should not further entertain the application:
“The Board is satisfied that, in the particular circumstances, the appeal should not be further considered by it, having regard to the nature of the appeal.”
15. In summary, the Board determined that, as the existing facility did not benefit from planning permission, nor was exempt from the requirement to obtain permission, and because an Environmental Impact Assessment (“EIA”) or Appropriate Assessment (“AA”) were required, it could not entertain the appeal.
16. The first argument of the applicant is that the Board erred in failing to have regard to three declarations made by Kildare County Council regarding the facility, and that its decision is as result irrational and wrong in law. I turn now to examine these.
Three s. 5 declarations of Kildare County Council
17. The applicant made three separate applications for declaration under s. 5 of the PDA in respect of the works or use of the land.
18. On the first referral, Kildare County Council made a declaration on 9th March, 2009 (Ref: ED/00300) that the proposed works were exempted development having regard to the “nature and limited extent and scale of the activity”.
19. The second s. 5 declaration made on 30th December, 2010 (Ref: ED/00353) determined that the proposed works were exempted development having regard to the definition of agriculture contained in s. 2 of the PDA and to the exempting provisions relating to agriculture contained in section 4.
20. The third s. 5 declaration made on 7th June, 2011 (Ref: ED/00371) has the most relevance to the question in dispute. The questions posed were whether:
“(1) continued use of the farmland for the processing, storage of compost to include the importation of green waste and spent mushroom compost and the processing and storage of the green waste only in an existing shed and the mushroom waste in the existing farmyard is or is not a material change of use and is or is not development.
(2) the importation, processing, storage and composting of other organic materials in the existing farmyard as part of a research and development project and the importation, processing, storage and composting of food waste in an existing agricultural shed is or is not a material change of use which is a development and is or is not exempted development.”
21. Kildare County Council determined that the use of the lands for the processing etc. of green waste was not a material change of use and was not development, and that the importation etc. of other organic materials, including “organic fines”, was also not a material change of use and not development. Kildare County Council considered that the proposed activity, including that relating to organic fines, was “ancillary to an existing agricultural activity, and having regard to the previous decisions” (the plural was used), and made a determination that the activity was unchanged.
22. The effect of the three s. 5 declarations made by Kildare County Council was that the importation, processing, storage and composting of green waste including spent mushroom compost and other organic materials, including organic fines, was declared not to comprise development. It is clear that the third s. 5 declaration was made following a consideration of the first and second declarations made in 2009 and 2010 respectively, and that Kildare County Council took the view there had been no material change since those earlier declarations were made.
23. The applicant argues that because it has the benefit of the three declarations under s. 5 it was not necessary to apply for planning permission in respect of the works or activities on site. It is argued that the activity was agricultural in nature and, therefore, even if there was development, it was exempt from the planning requirements of the Act. In the circumstances it is contended that the Board erred in failing to have regard to these declarations.
24. The Board argues in response that it was entitled to, and did in fact make its determination on the appeal now under challenge in reliance on three later determinations, and that it did not fail to have regard to the three earlier declarations.
25. I turn now to examine the planning decisions of the Board.
Three s. 5 declarations of An Bord Pleanála
26. Subsequent to the making of the three declarations by Kildare County Council, a number of referrals were made by a third party to An Bord Pleanála under section 5. The Board departed from the decisions made by Kildare County Council in each determination made respectively on 5th September, 2013 (09.RL.3029 and 09.RL.3045) and on 30th July, 2014 (09.RL.3216). None of these decisions was challenged by the applicant who would now be out of time to do so. It is also of note that the applicant engaged fully with the Board in regard to the matters referred for determination.
First and second declarations 5th September, 2013. Board ref: 09.RL.3029 and 09.RL. 3045
27. The first referral to the Board, 09.RL.3029 for a declaration regarded the question determined by Kildare County Council in the 2011 reference. The question in simple terms was:
“Whether the processing of organic fines is an exempted development (domestic rubbish) in an existing farmyard.”
28. Two referrals came to the Board at the same time, the other a referral by Kildare County Council following a request for a declaration by the same third party from the planning authority (09.RL.3045). The two referrals were dealt with together although two separate reports from an inspector were furnished which showed considerable overlaps and identical descriptions of the site, development and planning history. One report was adduced in evidence in the present application because of the overlap.
29. The inspectors characterised the waste being processed, stored and composted at the site to be green waste, including spent mushroom compost, food waste including animal by-products, organic fines as classified in the European Waste Catalogue and hazardous waste list, organic fines which are not capable of being composted and waste material, bio-stabilised material created as a by-product of a composting activity. A further question arose for consideration by the Board relating to the construction, excavation, demolition, extension, alteration or renewal of the composting windrows, retaining walls and waste water holding tanks on the lands.
30. It is clear from the reports of the inspectors that submissions were received on behalf of the applicant through its solicitors. Those submissions, inter alia, pointed to the fact that the activity was not commercial in the sense that the compost created by the process was not sold commercially to any other party but was used on the farmlands. Reference was made to the three declarations made by Kildare County Council, the last of which in 2011, ED/00371, had dealt inter alia with the organic fines and spent mushroom compost and the research and development component of the activity. It was contended that the question of whether the activity or works were development and not exempt was in effect res judicata, and that there had been no change in the circumstances since April, 2011, the operative date for the last of three s. 5 declarations made by Kildare County Council.
31. From the reports of the inspectors in evidence before me it is apparent that the three s. 5 declarations made by Kildare County Council were considered and explained, and that the inspector analysed the development of the overall activity on site with a view to ascertaining whether a material change had taken place between 2009, when the first declaration was made, and 2012. The report in 09.RL.3029 ran to 41 closely typed pages. Certain factors were regarded by the inspector as relevant to the determination, and he noted (at pp. 35ff) that over a period of two to three years, a number of changes had occurred in the activities being carried out, including a “tenfold increase in the amount of material handled”, a change in the origin of the material in that the material received was not merely horticultural i.e. green waste, and the fact that some of the final composted organic fines could not, as a matter of law for reasons arising under the waste management legislation, be used as compost on the farmland but was transferred elsewhere for incineration. The inspector also expressed the view that the purpose of the activities being carried out had changed as the process produced a by-product which could not be spread on farmland.
32. The inspector also noted a likely “tenfold increase” in traffic and vehicular activity on the site, and the construction of new structures including a surface water holding tank and a wall.
33. The conclusion of the inspector was that there had been “significant intensification” of the activity and a “factual change” in the nature of the activity, such that the facility had become a “waste-related project” involving the processing of municipal waste, the by-product of which was required to be exported to a different storage site. The inspector regarded it as irrelevant whether the activity could be described as “commercial” but did note there was an “industry standard weighbridge and office at the entry point of the site” and that the applicant had indicated a future intention “to carry out a larger scale or commercial activity”.
34. The inspector expressed the view that the activity did involve a change in use of land from agriculture to a waste related and a research and development process, that this change was material in planning terms and was, therefore, development.
35. It is significant that the inspector also expressed the view that the activity could not be categorised as exempted as it required an EIA and AA as the site was relatively close to the River Barrow and River Nore Special Area of Conservation (“Nore SAC”).
36. The Board gave its decision on the 5th September, 2013 in 09.RL.3029 and 09.RL.3045 and concluded that the importation, storage, composting, spreading and/or disposal of organic fines and/or related research and development were development, and not exempted development. It also declared that the use of the agricultural sheds for the storage and processing of imported waste constituted a material change of use, and the provision of underground storage tanks and the construction of a reinforced concrete retaining wall could not be exempt.
37. In its direction of 22nd August, 2013 the Board had expressly noted that it did not share the opinion of Kildare County Council in ED00371 (the June, 2011 declaration) in respect of the continued use of the land for waste processing etc.
Third Board reference 09.RL.3216, 30th July, 2014
38. A further third party referral was made to the Board on 3rd April, 2014, 09.RL.3216, and a decision given on 30th July, 2014. It is clear from the inspector’s report that this referral was dealing with a quite different factual context than that dealt with by Kildare County Council in June, 2011.
39. The Board’s decision was that the activity on site did not come within the definition of agriculture set out in s. 2(1) of the Act as amended, and represented a change of use from the former use of agriculture to waste processing. Given the scale of the activity the Board considered that the change in use was material, was therefore development and not exempt. The Board was not satisfied that the activity was commercial in nature but this was not regarded as determinative. Of importance is the fact that the Board took the view that an EIA and AA were required.
The application for permission for an extension of the facility
40. On 10th July, 2013 the applicant made application for planning permission for an extension to the existing composting facility to add an additional enclosed area with a floor area of 6,671 sq. metres for the preparation and storage of horticultural and agricultural compost soil conditioners and the stabilisation of organic materials. The application proposed that the existing limit of 10,000 tonnes per annum of material would be increased by 12,000 tonnes, to a total of 22,000 tonnes per annum. An alteration and extension of the existing reception building on site was proposed as was an administration/staff building, seven enclosed concrete tunnels and an external plant in the form of bio-filtration system and maturation area. Modifications were required to the existing weighbridge, and new works to boundary fencing, drainage, waste water treatment system, parking and traffic controls and to the vehicular entrance. .
Application for an exemption from s. 172(3) of the PDA
41. As part of the application for permission to Kildare County Council, the applicant made a request to An Bord Pleanála for an exemption from the requirement to provide an EIS under s. 172(3) of the PDA: (Board Reference PL.09.EA 2004). An inspector’s report was also obtained for this purpose. It is not necessary for me to analyse in any detail the content of this report save to note that at p. 7 the inspector, having referred to the decision of the Board in reference 09.RL.3029 that the activities on site were development and not exempted development, said:
“… it is considered that there is unauthorised development currently on the site. It is therefore possible that the current application may be for an extension to/ expansion of an unauthorised development. The issue may also arise regarding retention permission and EIS/substitute consent process.”
42. Later in his report (p. 11) the inspector noted that the planning status of the existing development “is not clear” and recommended that the Board not grant the exemptions sought.
43. The Board gave its decision on 6th March, 2014 and refused the exemption from the requirement to furnish an EIS.
44. Following the decision of An Bord Pleanála with regard to the EIS the applicant submitted an EIS on 31st October, 2014 but on 23rd December, 2014 Kildare County Council refused permission. It is the decision of An Bord Pleanála on the appeal from that decision that is challenged in the present application.
Retention application
45. One other planning application is relevant. The applicant applied to Kildare County Council for retention permission in respect of the underground storage tanks on 2nd May, 2014. Permission was granted subject to conditions on 26th June, 2014, and this was appealed by a third party to An Bord Pleanála which on 31st December, 2014 refused to grant retention permission, ref: PL.09.243638, having regard to the previous determination of the Board (references 09.RL.3029, 09.RL3045 and 09.RL3216) in respect of the activities on the site. The Board came to the conclusion that:
“the proposed retention of the development would facilitate the consolidation and intensification of this use. In these circumstances, it is considered that it would be inappropriate for the Board to grant planning permission for the proposed retention of the development.”
Summary of planning decisions
46. An Bord Pleanála therefore had considered the activity and works on a number of occasions, and gave three determinations under s. 5 of the PDA, a decision with regard to the exemption under s. 172(3), and had refused the application for retention permission on appeal on 31st December, 2014. Therefore, in the period between 2012 and the end of 2014 the Board engaged a number of extensive analyses of the facility, and issued five determinations or decisions which remain unchallenged, and are now not capable of being challenged. Each of these, and taken together, amount to the conclusion that the activity and works on site are development which do not have the benefit of planning permission, and are not exempt.
47. In each case the applicant had engaged fully with the evidence and made substantial submissions and replying submissions. In each the relevant planning history and the s. 5 declarations made by Kildare County Council were actively engaged.
Engagement by the Board of section 138
59. Section 138 of the Act, as amended and substituted by s. 24 of the Planning and Development (Strategic) Infrastructure Act 2006, vests in the Board the power to dismiss an appeal in certain circumstances without engaging in full with the facts as follows:
“(1) The Board shall have an absolute discretion to dismiss an appeal or referral—
(a) where, having considered the grounds of appeal or referral or any other matter to which, by virtue of this Act, the Board may have regard in dealing with or determining the appeal or referral, the Board is of the opinion that the appeal or referral—
(i) is vexatious, frivolous or without substance or foundation, or
(ii) is made with the sole intention of delaying the development or the intention of securing the payment of money, gifts, consideration or other inducement by any person,
Or
(b) where, the Board is satisfied that, in the particular circumstances, the appeal or referral should not be further considered by it having regard to—
(i) the nature of the appeal (including any question which in the Board’s opinion is raised by the appeal or referral), or
(ii) any previous permission which in its opinion is relevant.
(2) A decision made under this section shall state the main reasons and considerations on which the decision is based.
(3) The Board may, in its absolute discretion, hold an oral hearing under section 134 to determine whether an appeal or referral is made with an intention referred to in subsection (1)(a)(ii).”
60. The Board expressly invoked s. 138(1)(b)(i) in its decision of 8th June, 2015, and took the view that the nature of the appeal and previous decisions were such that the appeal should not be further considered by it.
61. The applicant argues that the decision by the Board to dismiss the appeal without further consideration and without considering the substance of the case amounts to an impermissible exercise of the statutory power. The applicant relies on the authorities starting with The State (Lynch) v. Cooney [1982] 1 I.R. 337 regarding the exercise of a statutory function by an administrative body. The principles are well established and in broad terms a decision-making power must be exercised bona fide and in a manner which is not unreasonable and is factually sustainable. In Kiely v. Kerry County Council [2015] IESC 97, [2016] 1 I.L.R.M. 221 McKechnie J. with whom Denham C.J. and O’Donnell J. agreed, identifies the judgment of Henchy J. in The State (Lynch) v. Cooney as the starting point and described the principles “in shorthand” as requiring “the opinion reached be bona fide held, factually sustainable, and not unreasonable”. (para. 70)
62. The principle is that, even when a person or body is entitled as a matter of statute to make a decision in its absolute discretion, the exercise of the statutory power must comply with certain basic requirements of fairness, and “accord with the statutory parameters within which the underlying power is conferred”. Mc Kechnie J. identified this as a fourth requirement viz. “that the decision does not breach the legislative framework within which the power is given”. (para. 71)
63. The same approach is found in the earlier judgment of Hogan J. in Cork Institute of Technology v. An Bord Pleanála [2013] IEHC 3, [2013] 2 I.R. 13 where he identifies the requirement that the statutory decision maker has “first correctly defined the relevant terms … .”
64. Cork Institute of Technology v. An Bord Pleanála involved the question of whether the applicant third level institution was a “voluntary organisation” and Hogan J. considered that, while Article 157(1) of the Planning Regulations 2001 involved a degree of subjective appraisal by the decision maker, there was an obligation to “act bona fide and in a manner that is not unreasonable and factually sustainable”. He relied on State (Lynch) v. Cooney and on Kiberd & Anor. v. Hamilton [1992] 2 I.R. 257. As Hogan J. noted, these principles have been emphatically restated in the judgment of Fennelly J. for the Supreme Court in Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59, [2012] 3 IR 297.
65. I accept as a matter of general principle that the exercise of the power to dismiss an appeal is one that should be carefully exercised and the discretion of the Board is neither unfettered nor immune from review. This arises also from the fact that the dismissal of an appeal must be for stated reasons and considerations: s. 138(2): the decision should state “the main reasons and considerations” on which the decision is based.
66. Further, because a decision to invoke the power undoubtedly will impact on the rights and obligations of the respective parties, the general principles that govern the review of administrative decision making are applicable.
67. No authority has been identified regarding the operation of s. 138, but I consider that as a matter of first principle, arising from the nature of the power, the statutory power is one that must be engaged only when the matter is clear, and for good reason, and only if the decision maker has correctly formulated the question before it.
A summary dismissal?
68. The applicant’s primary challenge in the judicial review is that the decision to deal with the matter in what is termed a “summary” manner was not within the competence of the Board or was done without due process or for good reason.
69. To describe, as does the applicant, the statutory power of the Board as permitting it to “dismiss summarily” an application seems to me a wrong characterisation. A summary dismissal of an application involves the decision maker coming to the conclusion that an answer is clear cut, and requires neither detailed analysis nor substantial legal argument.
70. The approach of An Bord Pleanála in the present case was not “summary” if by this is meant that the Board did not fully consider the matter before it. The evidence shows that it had before it a considerable amount of material and a number of recent, clear, unassailable and relevant planning decisions. In its terms the decision rested upon prior decisions of An Bord Pleanála that planning permission did not exist for the existing facility it had characterised as a “waste management facility” and not one which could be treated as exempt, and also because the existing facility required an EIA and AA because of the nearby Nore SAC.
71. The Board was faced with a choice: treat the application as one in respect of which the answer was capable of being arrived at from the evidence before it, or invite further submissions and evidence and appoint an inspector. The Board took the view that it would not give any further consideration to the application for an extension as the planning status of the existing facility was already clear. It also considered that it was not competent to consider the application as one for retention having regard to the fact that an EIA and AA were required.
72. The decision of the Board was reasoned and based firmly in the recent, relevant, clear and detailed planning history regarding the site. It was not taken as a result of a “summary” approach to this evidence. Therefore, this argument fails.
Relevant considerations?
73. The applicant argues that the Board was not entitled to come to the decision under s.138(1)(b)(i) having regard to the planning history of the site and because of the extant and relevant s. 5 declarations made by Kildare County Council by which the works and activities on site were declared not to be development, or to be exempt.
74. As a matter of fact, the reports of the inspectors and the other documentation before the Board, including its own decisions made between 2013 and the end of 2014, all contained references to and details of declarations made by Kildare County Council. The Board therefore did have regard to the prior decisions made by Kildare County Council. Its own decisions made express reference to the Kildare County Council files, and the Board direction of 3rd June, 2015 expressly recited that it did have regard to the planning history and to those s. 5 declarations which were specifically identified.
75. The Board had made three declarations that development had occurred in respect of which planning permission did not exist. There was a separate but related finding that because an EIA and AA were required was a matter of law, an exemption could not exist. The decision of the Board was one which flowed logically from the previous s. 5 declarations. I do not go as far to say that the decision flowed inevitably or inexorably from the previous s. 5 declarations as the Board did have conflicting decisions before it which it was required to and did, in fact, reconcile. The reconciliation primarily occurred in the context of these applications for s. 5 declarations before it, and the application for exemption from the requirement to prepare an EIS.
76. The applicant bears the burden of proving that the Board failed to have regard to relevant considerations: McMahon J. in Klohn v. An Bord Pleanála [2008] IEHC 111, [2009] I I.R. 59, Charleton J. in Weston Limited v. An Bord Pleanála [2010] IEHC 255 and Finlay P. in Comhaltas Ceoltóirí Éireann v. Dun Laoghaire (Unreported, High Court, Finlay P., 14th December, 1977).
77. The applicant has not established evidence which leads me to the conclusion that the matters recited as having been considered by the Board were not in fact considered by it.
The interplay between the various s. 5 declarations
78. The s. 5 declarations made by Kildare County Council and the later ones made by An Bord Pleanála in each case are now not capable of being challenged. Insofar as a conflict arises, the applicant argues that the Board was not competent to make a determination which favoured one decision over another.
79. That analysis fails to have regard to the fact that An Bord Pleanála expressly determined the applications before it in the light of the evidence before it that the nature and extent of the activity had changed.
80. The corollary of the argument is that no one of the s. 5 declarations can be said to prevail.
81. I reject the argument that the Board predetermined its decision by relying on its previous s. 5 declarations. In West Wood Club Limited v. An Bord Pleanála [2010] IEHC 16 Hedigan J. considered that it was “inevitable” that the Board would have regard to previous s. 5 declarations and that it was correct for it to do so. That is not to say that the s. 5 declarations would pre-determine the result of the extension application, but rather the Board was entitled to take the view that there were extant, unchallenged and final determinations which found that the activity on site was development and not exempt development. Indeed, Hedigan J. took the view that:
“It was proper that the respondent had regard to a relevant planning decision which it made only a relatively short time before … in the interests of consistency. That was a decision made following a formal process and which was entered in the planning register. Once entered it became part of the planning history of the site and was properly taken into consideration … .” (para. 34).
82. It was not only proper, but also in my view reasonable, for the Board to have regard to its previous decisions, and I am not satisfied that it could be said that the Board ignored the s. 5 declarations of Kildare County Council. It had departed from those for sound reasons based on the evidence before it, and therefore I consider that it had before it and did actually consider all relevant information, and properly did have regard to, and was influenced by, determinations that it had made in the previous processes which were recent. Hedigan J. in West Wood Club Limited v. An Bord Pleanála noted the fact that a previous s. 5 declaration was recent, as relevant.
83. I do not accept the argument of the applicant that the Board ought to have favoured the earlier s. 5 declarations over the later ones, and while such an argument might have been made in a challenge to the s. 5 declaration made by An Bord Pleanála, such a challenge was not made, and the s. 5 decisions of the Board are valid and not now open to challenge.
84. The matter could be said to be a question of weight. The Board did not overturn, ignore or disagree with Kildare County Council because it made its determinations in the light of the then current activity on site in respect of which it had ample evidence, and substantial and extensive submissions by the applicant in regard to the authority and force of the previous decisions.
85. The inspector in his report in 09.RL.3216 set out a view that the activity on site had “increased substantially”.
86. Further, the applicant is wrong as a matter of fact, as Kildare County Council in refusing permission for the extension had relied inter alia on the determinations of the Board. Both Kildare County Council and the Board took the same approach to the nature of the activity in 2014, that it was development which was not exempt.
87. It is also noteworthy that Kildare County Council sent a warning letter in June, 2012 and while enforcement proceedings have not been progressed thereafter, Kildare County Council seems to have taken the view that the activity in June, 2012 on the site was not authorised.
88. In submissions made to An Bord Pleanála on the first s. 5 application the applicant by its solicitors argues that the Board was bound by the decisions of Kildare County Council, especially by the decision made in June, 2011. The argument that the Kildare County Council declarations created a form of “res judicata” was rejected by the Board. I do not propose considering whether a true res judicata could be said to exist, as for the present purposes the significant factor is that the Board considered that argument and rejected it which, for the purpose of the present application, means as a matter of fact that the Board did fully engage with the 2011 decision, and the effect or force it might have or should be given, and that decision of the Board was not challenged.
89. Further, from the perspective of European law, and having regard to the fact that the Board has determined that the development did require an EIA and AA and refused an application by the applicant for an exemption from the requirement that an EIS be furnished, it is not possible as a matter of law for any planning authority to determine that the activity could be exempt.
90. It is not argued by the Board that the mere fact that the declarations made by it post-dated the three s. 5 declarations by Kildare County Council means as a matter of law that the Board decisions must prevail as being later in time. Such a simplistic approach to the existence of differing conclusions could not be correct without more analysis. That the activities had changed is borne out by the evidence before the Board, and the decision was made in that context.
91. The High Court has in a number of cases decided that it is within the competence of a planning authority not to make a determination that would “complement an unauthorised use”: per Hedigan J. in West Wood Club Ltd. v. An Bord Pleanála [2010] IEHC 16 at para. 62, or involve the “facilitation of unauthorised development”: per Hedigan J. in Frank Harrington Limited v. An Bord Pleanála [2010] IEHC 428 at para. 14. The applicant makes the argument that the Board was not entitled, having regard to the effect of the previous decisions under s. 5, to treat the existing works and activities as unauthorised. I will return later to the case law on s. 5, but for the present I consider that the Board was competent to decide on the evidence before it that, having regard to its own previous decisions, including decisions under s. 5, that development had taken place on the site, and that that development was not exempt, that in the absence of an extant planning permission it ought not to give further consideration to an extension application as what was sought was an extension of activities which did not have the benefit of planning permission, or which were not authorised.
Failure to give reasons?
92. The applicant claims also that Board failed to give adequate reasons. That reasons must be given for the decision is express in the Act, but there remains the argument that the Board failed to give reasons of sufficient detail to meet the threshold required as a matter of law. The authorities establish that the reasons given by an administrative body for a decision must be sufficiently clear and detailed to enable a person receiving the decision to understand the basis on which it was made, and to make an informed decision whether to appeal or seek review.
93. In Grealish v. An Bord Pleanála [2006] IEHC 310, [2007] 2 IR 536 O’Neill J., having reviewed the case law, including the authoritative decision of Kelly J. in Mulholland & Anor. v. An Bord Pleanála & Ors. (No. 2) [2005] IEHC 306, [2006] 1 IR 453, concluded that it was not necessary for a decision making authority “to give a discursive judgment”. A similar view was taken by Birmingham J. in Mulhaire v. An Bord Pleanála & Anor. [2007] IEHC 478 where he identified the test as being whether a person receiving a decision is left “in any doubt as to why the decision went against him”. (p. 13)
94. The Board gave coherent and adequate reasons for its decision. This ground is not made out.
Opportunity to be heard?
95. The applicant also argues that the approach of the Board was erroneous in that it did not afford the applicant any opportunity to address it prior to making a decision to refuse to further engage with the appeal. That a person whose interests are likely to be impacted by the decision has a right to be heard is now well established in law, and was firmly restated by the Supreme Court in Dellway Investments Ltd.& Ors. v. National Asset Management Agency (NAMA) & Ors. [2011] IESC 4, [2011] 4 I.R. 1 The authorities recognise a fundamental underlying requirement that fairness of process requires that a person not be excluded from addressing a decision maker when its determination is likely to impact on proprietary rights or interests.
96. In reply the Board argues that the statutory power contains no provision that requires or permits the Board to notify an applicant that it is considering making a determination under section 138.
97. In West Wood Club Ltd. v. An Bord Pleanála Hedigan J. considered a broadly similar argument, that an applicant should have been notified that the Board intended to take a s. 5 declaration into account, and invited, or at least permitted, observations on that intended approach. At para. 38 of his judgment Hedigan J. rejected that argument on the factual basis that “it was a decision well known to all and which the applicants needed no invitation to argue”. He relied on a judgment, Stack v. An Bord Pleanála (Unreported, High Court, Ó Caoimh J., 7th March, 2003) as follows:
“I am satisfied that the matter as represented in the earlier decision on what has been referred to as the historic file was not in reality a new matter that required the application of s.13(2) of the Act of 1992 or any specific notification to the applicants insofar as the same was taken into consideration by the Board. The earlier decision is a matter of public record and was so at the time and I am satisfied that it was a matter of which knowledge must at least be imputed to the applicants as the decision in question was made before the appeal in the instant case.”
98. Hedigan J. was satisfied that the s. 5 declaration in question related to the same site and was legitimately taken into consideration by the Board when reaching its conclusion. He went on to say that the third party submissions “raised no new issues”, and were “broadly the same as those which were raised against the original application to the notice party”. (para. 40)
99. On the other end of the spectrum, in McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 the adverse conclusion drawn by the Board was held to have been wrongly based on a submission received from a residents group that was not furnished to the applicant.
100. The question, it seems to me, is whether there were material matters before the Board of which the applicant was not aware, or had not been given an opportunity to address, and which in the circumstances might have triggered an obligation on the Board to invite further submissions.
101. As a matter of fact the Board did have before it submissions from the applicant regarding the planning question before it. There were no new factual matters before the Board. Therefore, I consider that the Board could, as a matter of law, have dealt with the matter in the way it did without affording a fresh opportunity to the applicant to address it on its approach. The matter was an appeal by the applicant from a refusal by the local authority, so one must assume that the applicant had furnished to the Board all material it considered necessary and relevant to its consideration. The applicant had also made submissions on the s. 5 applications.
The legal nature of a declaration under section 5
102. The applicant argues that the Board has no jurisdiction to determine that a development is unauthorised, that this is a matter for a court. The applicant argues that the Board in essence asked the wrong question or identified the incorrect approach to the s. 5 declarations.
103. The relevant provisions of s. 5 of the PDA are:
“5.—(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(5) The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.
(6) (a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.
104. The import of a determination under s. 5 of the PDA has been considered in a number of cases. In Grianán an Aileach Interpretative Centre Company Limited v. Donegal County Council [2004] IESC 43, [2004] 2 IR 625, Keane C.J. said:
“It would seem to follow that the question as to whether planning permission is required in this case necessarily involves the determination of the question as to whether the proposed uses would constitute a ‘development’, i.e., a question which the planning authority and An Bord Pleanála are empowered to determine under s. 5 of the Act of 2000.” (para. 26)
105. He later went on to say, adopting the reasoning in McMahon & Ors. v. Dublin Corporation [1996] 3 I.R. 509 and Palmerlane Limited v. An Bord Pleanála [1999] 2 ILRM 514, that:
“a question as to whether the proposed uses constitute a ‘development’ which is not authorised by the planning permission is one which may be determined under the Act of 2000 either by the planning authority or An Bord Pleanála.” (para. 28)
106. A declaration made under s.5 is not a determination that activity is authorised. It is a determination pursuant to the statutory power of a local authority or An Bord Pleanála that activity is development, and where appropriate that development is or is not exempt. It is part of the planning history of a site. The application under s. 5 is an application to clarify the planning status of an activity or works. This is because whether a development is “authorised” can and often does involve the question of whether it has planning permission, but can also engage the question whether it is exempt, or if there is a relevant pre-1964 user.
107. The statutory function of the planning authority or the Board under s. 5 is not an enforcement role. Finlay Geoghegan J. in Roadstone Provinces Limited v. An Bord Pleanála [2008] IEHC 210, at para. 21 of her judgment said the following:
“The respondent has no jurisdiction on a reference under s.5 (4) of the Act to determine what is or is not ‘unauthorised development’. It may only determine what is or is not ‘development’. Hence, a planning authority, such as the notice party, cannot refer a question under s.5 (4) as to whether the works or proposed works or use constitutes unauthorised works or use and hence unauthorised development. Determination of what is or is not ‘unauthorised development’ will most likely be determined by the courts where a dispute arises on an application under s. 160 of the Act.”
108. This dicta of Finlay Geoghegan J. is regularly quoted as authority for the proposition that the jurisdiction under s. 5(4) of the Act is one which is confined to determining whether works or use is development.
109. Finlay Geoghegan J. was considering the import of a s. 5 declaration where what was challenged was the decision of the respondent that the expansion southward of a quarry was development and not exempted development. The decision was quashed by certiorari as there was pre-1964 use and no determination had been made whether there was an identified factual difference between that use and current use. The judgment does not go so far as to say that the consequence of a s. 5 declaration can never be understood to mean that a development is not one authorised by planning permission. The judgment of Finlay Geoghegan J. is authority for the proposition that development which does not have the benefit of a planning permission is not always in legal terms a development which is “unauthorised”, and the jurisdictional limit of s. 5 is to determine whether there is development, after which there arises the second question whether permission is required or exists.
110. Hogan J. giving the judgment of the Court of Appeal in Killross Properties Ltd. v. Electricity Supply Board [2016] IECA 207 explained the conceptual difficulty as follows:
“The essential difficulty which is presented here is that the concepts of development, exempted development and unauthorised use are all, to some extent, inter-related. It is true that, as Finlay Geoghegan J. held in Roadstone Provinces Ltd. v. An Bord Pleanála [2008] IEHC 210, the Board has no jurisdiction on a s. 5 reference to determine whether or not there was unauthorised development. Yet if the Board (or, as the case may be, a planning authority) rules that a particular development is not exempted development, the logical corollary of that decision is that planning permission is required. In practice, there is often only a very slender line between ruling that a development is not exempted development since this will generally – perhaps, even, invariably – imply that the development is unauthorised on the one hand and a finding that a particular development is unauthorised on the other. Conversely, where (as here) the Board (or the planning authority) rules that the development is exempt, this necessarily implies that the development is lawful from a planning perspective since, by definition, it has been determined that no planning permission is required.” (para. 20)
111. A development is not unauthorised merely on account of the fact that an activity or works are found to be development. The development may, as in the case of a quarry, the context in which Roadstone Provinces Limited v. An Bord Pleanála was decided, be exempt from the requirement to obtain planning permission if it is a continuation of pre-1964 user. In such cases the development is not unauthorised although it is development. A development may also be found to have occurred but to be exempt.
112. However, it must be the case that, absent an argument that there is relevant pre-1964 use, if works or activity are declared in the s. 5 process to amount to development and if a determination is made that it is not exempt, then the inevitable conclusion is that the development does not have the benefit of planning permission, is not authorised in planning terms, and is “unauthorised”.
113. I can find no error in the approach of the Board to the s. 5 declarations which in factual terms meant that the activity was not authorised and not exempt. This follows also from the fact that a s. 5 declaration is by Statute part of the planning history of the site.
Statutory character of s.5 as part of history: s. 5(5)
114. A declaration under s. 5 may constitute evidence or a finding on which a subsequent decision maker may make a determination that works or activity are not authorised, i.e. that works or activity do not have the benefit of planning permission.
115. That a declaration under s. 5 is part of the planning history of a site and constitutes evidence on which a determination may be made that works or use is unauthorised is apparent from the approach of Hedigan J. in West Wood Club Limited v. An Bord Pleanála where the Board had under s. 5 declared that the use of the premises was development which was not exempted development. The Board expressly took the view that the use was “unauthorised for use as a licensed premised”. Hedigan J. regarded the s. 5 declaration as “part of the planning history of the site, as mandated by s. 5(5) of the Act of 2000” (para. 34). He held that the respondent was correct to have regard to it when determining the appeal before it and that it was “inevitable” that the s. 5 declaration would be taken into account and that it was “proper” that the Board had regard to it as a relevant decision made in the relatively recent past.
116. The Board in the present case determined that the activity and works on site were unauthorised in the sense in which that term is generally used, i.e. that there existed no planning permission, no exemption, no pre-1964 status or argument or contention that such status fell for consideration. There is no flaw in that approach.
117. Further, the decision under challenge in the present case is not a declaration made under s. 5 but rather a substantive planning appeal, and there is no jurisdictional limit on the power of the Board to make a determination in that context that works or activity are unauthorised. The planning history is part of the nexus of fact that could lead to that conclusion. The s. 5 declarations are evidence of a finding by the Board and by Kildare County Council regarding the planning status of the works and activity, and there being no argument or evidence of pre-1964 use which might have precluded such a consideration or determination, and there being separately a finding that an exemption did not exist, the Board was entitled to conclude that the activity was unauthorised in planning terms. No other possible means by which it could be authorised was argued before the Board in any of the applications before it or in the appeal now under challenge.
118. For that reason, it seems to me that the argument of the applicant that the Board was fundamentally incorrect in its approach to the planning history and especially to the extant declarations made under s. 5 must fail. I reject the argument of the applicant that the Board fell into error in coming to the view that the works and activity were unauthorised.
Were the facts before the Board unclear or contradictory?
119. The applicant argues that the Board had before it contradictory evidence and that it was not therefore competent to proceed to conclusions without further considering and weighing those facts. The respondent argues that it was well aware of the determinations made under s. 5, and the import of these, and had extensive reports from its inspectors, had already engaged in the application for an exemption from an EIS, and had refused the request for an oral hearing having determined that there was sufficient information available in writing. The Board considered that it had sufficient information and that the history of the site was amply dealt with in previous reports and findings, so that it did not need a further report from an inspector under section 146(1).
120. I turn now to consider whether it could be said that there was materially contradictory evidence before the Board which mandated that it approach the evidence with caution, if necessary by permitting or requiring that it be further interrogated.
121. Having regard to the fact that the application before me is an application for judicial review, it is not necessary for me to analyse the differences in the factual matrices between the facility as it operated at the time the s. 5 declarations were made by Kildare County Council and those that prevailed at the time of the Board’s decision. However, some factors are of note, including the fact that the decisions of the Board were supported by four separate reports of its inspectors, and there is no evidence before me that any such analysis was before the local authority. More importantly from the point of view of the decisions of the Board is the fact that it had taken a view arising from the fact that the site was materially close to the Nore SAC relating to the requirement for an EIA and AA, and once it had been determined that these assessments were required, the development could not be said to be exempt.
122. The Board had evidence, in the form of s. 5 declarations made by it in the context of the contemporary activity on site, which were unchallenged and unassailable. Its approach to the difference between the declarations made by the local authority was to require detailed analysis and submissions by an inspector, other authorities such as water authorities, and the determinations made by the Board under s. 5 were made following a full consideration of all the facts. It cannot be said that the Board did not have evidence or reasons on which it could take a reasoned and legally correct approach to the factual differences. The Board did not disregard the s. 5 declarations made by Kildare County Council, but it came to its own view in a robust and procedurally fair manner as to the planning status of the activities and works, and thereby resolved the conflict of fact.
Conclusion and summary
123. Recent decisions of the High Court have confirmed that the approach of the Supreme Court in O’Keeffe v. An Bord Pleanála & Ors. [1993] 1 I.R. 39 remains the correct approach in an application for judicial review of a decision of the Board. Notably, in Ratheniska Timahoe and Spink (RTS) Substation Action Goup & Anor. v. An Bord Pleanála [2015] IEHC 18, Haughton J. said that the test in O’Keeffe v. An Bord Pleanála & Ors. was “appropriate, and continues to bind the High Court at least in its review of decisions of the Board”. (para. 76)
124. In Dunnes Stores v. An Bord Pleanála [2016] IEHC 226, Hedigan J. identified a similar approach on review, namely whether any basis had been shown which would support the intervention of the court:
“Once there is any reasonable basis upon which the planning authority or the Board can make a decision in favour of or against a planning application or appeal, or can attach a condition thereto, the Court has no jurisdiction to interfere (see Weston Limited v. An Bord Pleanála & Anor. [2010] IEHC 255).” (para. 8.2)
125. He went on to conclude on that point:
“No basis has been laid that could support the proposition that the Board’s decision in this regard was so irrational as to require the court to intervene.” (para. 8.5)
126. McDermott J. came to a similar decision in Sweetman & The Swans and The Snails Ltd. v. An Bord Pleanála & Anor. [2016] IEHC 277, where he said that:
“If the Board made the decision on the basis of material or evidence before it, which was reasonably capable of supporting its view, the decision must stand and is not to be regarded as unreasonable or irrational.” (para. 93)
127. I find that that the Board was entitled to come to a conclusion that the changed activities constituted development which was not exempt, and that it had sufficient evidence before it to support the decision.
128. I do not consider, therefore, that the Board came to its decision without considering the facts, without giving reasons and without weighing those facts.
129. The Board did not exercise its jurisdiction to dismiss the appeal by treating it as vexatious or frivolous which it is entitled to do under s. 138(1)(a)(i) or that the appeal comprised a ransom demand in s. 138(1)(a)(ii). The decision was made on a different statutory basis having regard to the nature of the appeal and the previous permission which in its opinion was relevant. Four different inspectors had given extensive reports on the facility, three of which had been prepared in the twelve months before the Board came to its determination. It cannot be said that the Board acted irrationally or unreasonably in not requisitioning a further report from an inspector, and there is no evidence before me that would suggest that different factual or planning matters had arisen in the months leading up to its decision. Further, the applicant had the reports and did in fact address the conclusions in its application to Kildare County Council for permission. There is no stateable argument in those circumstances that the Board relied solely on the declarations given by it under s. 5, and a full consideration of the factual nexus giving rise to the application and a full analysis of the existing facility was before the Board. It is also to be observed that the appeal to the Board, which resulted in the subject matter of the present application for review was made on 28th January, 2015, only weeks after the decision by the Board on 31st December, 2014 to refuse permission for the retention of the underground tanks.
130. The decision arrived at by the Board was one that flowed from previous decisions but logically and lawfully did so, and there is no irrationality in that approach. The Board could not lawfully ignore its previous recent determinations and refused to grant planning permission as to do so would permit an impermissible graft upon a facility which it had previously determined required planning permission and environmental assessment. The decision of the Board was not preordained but was, in a sense, inevitable.
131. I dismiss the application for review for the reasons stated.
Daly v Kilronan Windfarm Ltd
[2017] IEHC 308
JUDGMENT of Ms. Justice Baker delivered on the 11th day of May, 2017.
1. By notice of motion dated 24th November, 2016 the applicant has sought an order pursuant to s. 160 of the Planning and Development Act 2000 (“the PDA”) prohibiting the respondents from carrying out works consisting of the construction of a trench and the laying of underground 38 kV cables to provide a grid connection between a wind farm at Derrysallagh, Co. Sligo to the 110 kV substation at Garvagh Glebe, Co. Leitrim. As will appear later in this judgment the application that cables already laid be removed has been withdrawn.
2. The applicant is a farmer and the registered owner of the lands in Folio SL 18888 Co. Sligo which comprises land on both sides of the public road. The question of the title is the subject matter of plenary proceedings between the parties and will not be dealt with in this judgment.
3. The first respondent, Kilronan Windfarm Limited (“Kilronan”) holds the lands the subject of the wind farm development under an agreement for lease made on 27th July, 2015, and the leasehold interest was assigned to the second respondent Derrysallagh Windfarm Limited (“Derrysallagh”) on 29th October, 2015. Derrysallagh is now the occupier of the lands.
4. The respondents are the developers of the wind farm in respect of which the first respondent received a grant of planning permission on 26th April, 2013 from Sligo County Council (PL 12/133), for the construction of twelve wind turbines.
5. The primary planning permission was subsequently amended under planning reference PL 13/357 on 22nd March, 2014 by alteration of the permitted noise limits.
6. Condition 3 in the permission contained the following proviso:
“The permission shall not be construed as any form of consent or agreement to a connection to the national grid or to the routing or nature of any such connection”.
7. The planning application was accompanied by an Environmental Impact Statement (“EIS”) and Sligo Co. Council completed an Appropriate Assessment (“AA”) and an Environmental Impact Assessment (“EIA”) in regard to the wind turbine development, but not with regard to the grid connection.
8. No planning permission exists for the construction of the grid connection and the underground cable, which is to pass through three counties, Roscommon, Leitrim and Sligo. In the application for the primary planning permission, the developer anticipated that the grid connection would be by overhead connection to a different substation at Arigna and advised the planning authority of an offer from ESB Networks of a connection to that substation. However, in the events, a grid connection offer was received from ESB Networks for connection to the Garvagh Glebe substation on 29th April, 2015, almost two years from the date on which the planning permission issued. On 2nd December, 2015, after the ESB offer issued, planning permission was received from Leitrim County Council to construct an extension to the existing Garvagh Glebe 110kV substation and other associated works.
9. The applicant had lodged a submission regarding the proposed development on 29th May, 2012 in which he expressed concerns regarding the loss of amenity value, impact on his grazing rights and concerns regarding noise and visual impact.
Section 160 of the PDA
10. The originating motion seeks declaratory and injunctive relief including an order that the respondents should remove that part of the works already constructed at or near the lands of the applicant.
11. S. 160 of the PDA, as amended, provides as follows:
“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.
Exempt development?
12. Section 3(1) of the PDA defines development as:
“… the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land”.
13. The laying underground of cable is the carrying out of work under and on land and involves a material change of use and is, therefore, development.
14. The respondents argue that the laying of conduit pipes is exempt from the requirement of planning permission as falling within Class 26 of Part 1 of the second schedule to the Planning and Development Regulations 2001, as amended by the Regulations of 2011, (“the Regulations”) which provides as follows:
“the carrying out by any undertaker authorised to provide an electricity service of development consisting of the laying underground of mains, pipes, cables or other apparatus for the purpose of the undertaking.”
15. Derrysallagh has the benefit of an Electricity Generation Licence dated 10th February, 2016 for the generation of electricity from Derrysallagh Windfarm, and an Authorisation to construct a generating station issued by the Commission for Energy Regulation on the same date. Derrysallagh therefore is for present purposes a statutory undertaker and an electricity undertaker within the meaning of the Regulations as it is authorised inter alia to transmit and distribute electricity in the State.
16. In general therefore the laying of underground cables is exempt development provided that the development does not come within the category of development which is deemed not to be exempt by virtue of s. 4(4) of the PDA, namely any development in which an EIA or AA is required of the type identified in s. 171A(1) of the Act.
17. Section 4(4) of the PDA (as substituted by the Act of 2011) provides:
“Notwithstanding paragraphs (a), (i), (ia), and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.”
18. No dispute arises with regard to the characterisation of the grid works as development, and whether the works of development are exempt depends then on the question of whether the works required an EIA/AA.
19. The circumstances in which an EIA or AA is required for a particular development are contained in s. 172 of the PDA, and Article 93 of schedule 5, part 2. para. 3(1) of the Regulations and provision is made for an EIA when a wind farm contains more than five turbines, or in the case of sub-threshold development where the planning authority or the Board determines that the proposed development is likely to have a significant effect on the environment. An underground grid is not an “installation for the harnessing of wind power”, but the treatment of the grid works as exempt must be made in the context of recent jurisprudence.
Project splitting
20. The present case involves a consideration in some detail of the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála [2014] IEHC 632. Peart J. was giving judgment in an application for judicial review of a decision of Cork County Council, affirmed with variation by An Bord Pleanála, to grant planning permission for the erection of six wind turbines and associated buildings and infrastructure. The permission did not relate to grid connection works and Peart J. held that in carrying out the EIA the Board had erred in failing to have regard to the cumulative effect of the entire development including the grid connection works and that an impermissible “project split” had occurred. Peart J. concluded that the turbine development and the grid connection was “one project, neither being independent of the other” and that it was not legally correct to treat the construction of the turbines as a “stand alone project when in truth it is not”. The grid works were an “integral part of the overall development of which the construction of the turbines is the first part”, and the environmental impact of those connection works was required to be considered in conjunction with the consideration of the environmental impact of the primary developments.
21. Peart J. held that the project could not, for planning purposes, lawfully be split into two independent parts:
“The wind turbine development on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, and in principle at least the cumulative effect of both must be assessed in order to comply with the Directive.”
22. Peart J. concluded, having regard to the requirements of the Directive 2001/92/EU (“the EIA Directive”), the successor of Directive 85/337, that an assessment is required as to whether there was any significant environmental impact from the grid connection development works taken on their own “or cumulatively with the wind turbine development itself”.
23. The matter in issue in that case was whether the EIA required to consider the impact of the project as a whole, including the grid works. The present case raises a different question, and where permission exists for the primary development, and where taken alone the grid works are exempt under statute.
24. The planning permission in the present case contains an identical condition relating to the grid connection as was contained in the permission granted by An Bord Pleanála in O’Grianna & Ors. v. An Bord Pleanála, by which it was expressly stated not to comprise a permission for the connection to the grid, and Peart J. noted (at para. 29) that that condition did not make the construction of the turbine conditional upon consent being given for the connection to the national grid.
25. Peart J. did not decide the grid works required planning permission, or a separate EIA or AA. Haughton J. in Sweetman v. An Bord Pleanála & Ors. [2017] IEHC 46, considered the import of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála in circumstances where the question before him was whether the applicant was out of time to bring proceedings seeking judicial review of a decision of An Bord Pleanála under s.5 of the PDA. An Bord Pleanála asserted that it had in fact carried out a cumulative EIA and that the effects of the proposed development taken as a whole were acceptable from the environmental point of view. The applicant argued inter alia, that his challenge to the decision of An Bord Pleanála under s. 5 of the PDA could not be out of time as challenge would have been premature pending the determination of An Bord Pleanála on the application for planning permission when the grid connection was not included in the determination under s. 5.
26. At para. 12.2 Haughton J., having noted that Peart J. considered that the connection to the national grid was fundamental to the entire wind farm project, and that “in principle at least the cumulative effect of both must be assessed in order to comply with the Directive”, commented as follows:
“His decision does not go so far as to say that separate EIA / AA of the grid connection must be carried out. Nor does his decision deal with the status of an earlier s.5 declaration of exemption in respect of the grid connection, or the impact of such a declaration on a later application for planning approval.”
27. The present case concerns to an extent the question observed by Haughton J. The issue here to be determined is whether it can be said that the works under construction are exempt.
28. Haughton J. correctly noted that the decision in O’Grianna & Ors. v. An Bord Pleanála did not address the import of a relevant s.5 declaration, and I turn to consider the argument in the present case regarding the declaration made by Leitrim County Council in relation to the grid works in its functional area.
The applications pursuant to s. 5 of the PDA
29. On 26th February, 2016, the first respondent submitted applications pursuant to s. 5 of the PDA to Leitrim County Council, Roscommon County Council and Sligo County Council for a determination in relation to the laying underground of the overall length of 9.48km of 38kV cable. The Sligo application relates to approximately 5.9km of cable within the townlands of Carrowcashel, Tullynure, Straduff, Glen and Ballynashee, Co. Sligo, of which the subject lands form part.
30. The applications under s. 5 of the PDA were accompanied by an Appropriate Assessment Screening Report and an EIA Screening and Environmental Report. The Screening Reports concluded that the proposed grid development did not fall into the class of development contained in parts 1 or 2 of Schedule 5 of the Regulations, and therefore no requirement for an EIA existed.
31. The applications to Sligo and Roscommon County Councils were withdrawn on 16th March, 2016, following the decision by Roscommon County Council on 14th March, 2016 to refer the questions to An Bord Pleanála for consideration. The affidavit of Denis Calnan sworn on 30th November, 2016 on behalf of the respondents says that the decision to withdraw the applications was made because the respondents were concerned by the length of time which the Board was taking at that particular time in considering such applications.
32. Another application for a s. 5 declaration was lodged with Sligo County Council on 6th October, 2016, in identical terms, but a decision was taken to withdraw that application on the following day, 7th October, 2016, “having regard to the advices received”.
33. Leitrim County Council made a declaration pursuant to s. 5 in respect of the grid works proposed in Co. Leitrim on 24th March, 2016 in which is recorded the following conclusion:
“…. the laying underground of approximately 2.8 km (38 kV) constitutes development and that such development is exempted development.”
34. The report from Bernard Greene, senior planner with Leitrim County Council, dated 21st March, 2016 which accompanies the decision, considered the impact of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála and expressed the view that “a planning authority need not slavishly adhere to an individual High Court case without giving due consideration to the facts in questions, having regard to the fact that the parent permission has not been challenged or revoked and to the legislation which is in place at the time of decision making”.
35. A similar decision was come to by An Bord Pleanála regarding a grid connection in Co. Wexford, RL3408/09/10/11 where the view of the inspector was that, as the permissions for the wind turbines had been granted before the decision in O’Grianna & Ors. v. An Bord Pleanála, and as the permissions were valid and beyond challenge, the development of the grid connection was capable of being considered to be planning exempt.
36. That decision, and other decisions to which the respondents refer, including a s. 5 declaration made An Bord Pleanála in similar circumstances in Co. Kilkenny, reference 10RL.3377, do not represent the law insofar as a view is taken by An Bord Pleanála or the planning authority that development of a grid connection was capable of being treated as exempt from the requirement of planning permission if the parent planning permission for the construction of the wind turbines and related works had been granted before the O’Grianna & Ors. v. An Bord Pleanála decision.
37. The judgment of Peart J. is declaratory of the law, a principle as old as Blackstone’s Commentaries (1766), that the role of the judge was “not delegated to pronounce a new law but to maintain and expand the old one”, what came to be called in later commentary the “declaratory nature” of the common law.
38. But as I explained in Ulster Bank Ireland Limited v. Kavanagh [2014] IEHC 299:
“It used to be said that judges did not make law but merely declared the law as it had always been. This proposition is now recognised as overly simplistic and as having evolved to explain the role of the judge who develops the law but yet does not displace the Oireachtas as law maker. The legal fiction developed to reconcile the interpretative interplay of the roles of stare decisis on the one hand and the fact that the court applies the law in an individual case and may in so doing have to explain or develop a principle only tangentially dealt with in other authorities, or may have to distinguish it by reference to some others”.
39. Whether this means a judicial determination of the meaning of, for example, a statutory requirement is “retrospective”, was explained in In H. v. H. [2015] IESC 7. Clarke J., delivering the judgment of the Court, said at para. 2.3:
“There is a sense in which any development in the common law is potentially retrospective. The court, in declaring the common law when a case comes to trial, is thereby applying the law as so declared to events which occurred, by definition, before the case came to trial. Thus, any evolution in common law principles which are determined as a result of a case heard today necessarily involves applying those principles to facts which occurred before that very evolution.”
40. In A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 Murray C.J. gave an explanation of the dilemma at p. 115 as follows:
“Thus, the conventional manner in which the law has been applied in a particular area for many decades may be greatly altered even turned on its head as a result of a particular issue being raised in a particular case at a particular point in time leading to an extension of the law by reference to general principles, the overriding of precedent or the specific interpretation.”
41. That a judicial determination does not have “retrospective effect” in every sense was explained by Murray C.J. at p. 117:
“Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.”
42. No judicial determination had been made in regard to the grid connection in the present development and accordingly the principles explained by Murray C.J. are not engaged, nor is the principle in Henderson v. Henderson (1843) 3 Hare 100. The view expressed by the inspector is incorrect as a matter of law and the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála is applicable to planning applications where the issue of project splitting is relevant, notwithstanding that there exists an unassailable permission for the primary development, because an application for judicial review or an appeal would be out of time.
43. The declaration made by Leitrim County Council pursuant to its statutory power under s. 5 of the PDA cannot be regarded as an authoritative determination with regard to the central issue before me as to whether the construction of the grid connection required planning permission, or whether it is as a matter of law correct to describe it as exempt from planning permission on account of falling within Class 26 of the Regulations. The s. 5 declaration was made in respect of different works in a different county, and I consider that the basis on which the declaration was made was erroneous as a matter of law, insofar as it determined the question of exemption without a proper consideration of the effect of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála.
Effect of the decision in O’Grianna & Ors. v. An Bord Pleanála
44. It is argued by the applicant that as a result of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, a developer of a wind farm project is not safe to apply for planning permission for the construction of the turbines and the works associated with the turbines without agreeing a grid connection with ESB Networks, and that the only permissible way in which a planning application can be made is by application for the whole project to include the grid works. I am not convinced that the matter can be stated in such broad terms, as there may be a number of ways in which an assessment of the entire project can be dealt with by a planning authority. In the present case, however, the planning permission issued two years before the grid connection was agreed and no EIA has been carried out, of either the grid connection itself, or of the whole project to include the turbines, associated works and grid connection works.
45. In the light of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, the grid works must be regarded as an integral part of the project as a whole and the assessment of the grid works is to be made in the context of the entire project, as must the assessment of the application for the turbines and works associated with them. That is not to say that a separate EIA will always be required with regard to the grid works and I adopt the dicta of Haughton J. in his judgment in Sweetman v. An Bord Pleanála & Ors. in that regard.
46. However, as the grid works are part of an overall project, and an EIA is required for the overall project, an environmental assessment must be carried out of the entire project, and, therefore, no part of the project, and ipso facto no individual part treated as a standalone element, can be exempt from planning. This emerges from the European jurisprudence to which I now turn.
European context
47. The approach of Peart J. to “project splitting” was taken within the context of European case law which I consider supports the proposition for which the present applicant contends, namely that grid connection works cannot be treated as exempt development.
48. Whether a particular development divided into a series of projects or sub-projects can be regarded as impermissible project splitting depends on the facts. That this is so is apparent from the opinion of Advocate General Gulmann in Bund Naturschutz in Bayern v. Freistaat Bayern case C – 396/92 [1994] ECR 1 – 13717 where he said:
“71. The important question in the present connection is not, however, which projects are to be subject to an environmental impact assessment. It is whether, in connection with the environmental impact assessment of the specific project, there is an obligation to take account of the fact that the project forms part of a larger project, which is to be carried out subsequently, and in the affirmative, the extent to which account is to be taken of that fact.
The subject-matter and content of the environmental impact assessment must be established in the light of the purpose of the directive, which is, at the earliest possible stage in all the technical planning and decision-making processes, to obtain an overview of the effects of the projects on the environment and to have projects designed in such a way that they have the least possible effect on the environment, that purpose entails that as far as practically possible account should also be taken in the environmental impact assessment of any current plans to extend the specific project in hand.”
49. He goes on to provide examples:
“72. For instance, the environmental impact assessment of a project concerning the construction of the first part of a power station should, accordingly, involve the plans to extend the station’s capacity fourfold, when the question of whether the power station’s site is appropriate is being assessed.
Similarly, when sections of a planned road link are being constructed, account must be taken, in connection with the environmental impact assessment of the specific projects of the significance of those sections in the linear route to be taken by the rest of the planned road link.”
50. In the context of the present case the guiding principle identified by Advocate General Gulmann is that an application must have regard to the purpose of the Directive with the practical effect that any future associated works should in general be included.
51. The ECJ did not consider it necessary to deal with the question in that case and confined its considerations to the determination of the time limits for the transposing into national law of the Directive
52. The matter however, was considered by the ECJ in Commission v. Spain Case C-227/01, [2005] Env LR 20, where the question related to the Valencia to Tarragona railway project. The ECJ considered that it was impermissible to consider the part of the project comprising a new by-pass line to be “a mere modification of an existing project”, and that “the Directive’s obligation could not be allowed to be undermined by the splitting up of such a project into a number of successive shorter sections”. At para. 59 of its judgment the Court pointed to the relevant criterion for the implementation of Directive 85/337 as “the significant effect that a particular project is ‘likely’ to have on the environment”.
53. A similar approach is found in the judgment involving a power line running between Austria and Italy in Umweltanwalt von Kärnten v. Kärntner Landesregierung Case C-205/08, [2010] Env LR 15 where the ECJ held that the whole project was such that it would require mandatory assessment under the Directive, and that the purpose of the Directive could not be circumvented by splitting a project in order to avoid assessment of its cumulative effect. The Court pointed to a number of decisions already given in which this conclusion was established, including Commission v. Spain; Commission v. United Kingdom; Case C-508/03 [2006] E.CR 1-3969 and R. (on the application of Barker) v. Bromley LBC Case C-290/03 [2006] E.CR 1-3949. It summarised that law as follows at para. 53:
“moreover, the court has held that the purpose of Directive 85/337 cannot be circumvented by the splitting of projects and that the failure to take account of the cumulative effect of several projects must not mean in practice that they all cease to be covered by the obligation to carry out an assessment, when, taken together, they are likely to have ‘significant effects on the environment’ within the meaning of Art. 2(1) of Directive 85/337.”
54. As a matter of European law the assessment of whether the grid connection works can be treated as exempted development is one that must be considered in the context of a reading that best achieves the aims and objectives of the EIA Directive. I consider that on account of the fact that the grid works cannot be lawfully separated from the project as a whole, that to treat the grid works as exempt fails to give effect to this principle.
Collateral attack on the wind farm permission
55. I am not persuaded by the argument of the respondents that the present application under s. 160 is an impermissible collateral attack on the wind farm permission. That point was considered by Haughton J. in Sweetman v. An Bord Pleanála & Ors. The primary planning permission is now incapable of challenge, and the present application is confined to the question of whether the grid connection works are exempted development. The assessment of the environmental impact of the project as a whole is one within the competence of the planning authority and a number of possible scenarios may evolve, including that Sligo County Council may grant planning permission, carry out an EIA, or determine that a further EIA is required of the project as a whole. My concern is solely the question whether the works are exempt. The primary permission is not under challenge as it contains no particulars whatsoever of the grid works.
Summary on exemption
56. The onus is on the respondents to establish that the grid works are exempted development: see Hogan J. in Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 and McKechnie J. in South Dublin City Council & Anor. v. Fallowvale Limited [2005] IEHC 408. The respondents have not shown me that as a matter of law, the grid connection works can be deemed to be exempt.
57. The respondents argue that the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála is not on point. Planning permission exists in the present case for the turbine development, and is now exempt from challenge. The decision in O’Grianna & Ors. v. An Bord Pleanála does not mean that Peart J. was of the view that planning permission was required for the grid connection merely on account of the fact that it was part of a larger project. However his judgment, it seems to me, carries a necessary implication that because the grid connection is part of the larger project, and if one identified part of that project requires an EIA, the grid connection works cannot be considered to be exempt development, as they are part of a larger development which requires an EIA.
58. As the grid works are part of a development that does require an EIA, the local authority must carry out an environmental assessment in the context of the project as a whole of which the grid connection forms part.
59. In interpreting the provisions of the PDA which permit an exemption in certain circumstances, a court should not come to a conclusion which has the effect that a project can be impermissibly split, albeit that taken alone part of the project could readily be seen as coming within the exemption. The general principle must be that the project must be considered as a whole, and therefore any argument that an exemption can exist is one that cannot be determined without reference to that first principle.
60. Arising from the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, and the European case law, and because the interpretation of the exemptions in the PDA must be given one that is supported by the European context, I do not consider that my decision rests on whether the respondents are correct, that the net import of the Appropriate Assessment Screening Report and the EIA Screening and Environmental Report submitted which show no likely environment impact.
61. The planning authority has not carried out an EIA and the Screening and Environmental Reports prepared by Fehily Timoney Associates on behalf of the first respondent, while they might have supported the consideration by Leitrim County Council which led to its determination under s. 5, and are to be regarded as evidence of a likely environmental impact, they are not a finding of such. The carrying out of an EIA is the function of the planning authority and one which has not yet been engaged.
62. I am not satisfied that the grid works can be characterised as exempt, and the matter of whether an EIA is required is a matter for the Board. This is the approach taken by Peart J. when the matter returned before him, and he delivered a second judgment, [2015] IEHC 248, by which he rejected the argument that the breach could not be cured by remittal to the Board, and did remit, in order that the Board could proceed in whatever way it considered proper having regard to his conclusion.
The relief sought
63. It was accepted in the course of argument that the applicant would no longer pursue application for the restoration of the lands and the removal of the conduits already laid, a prudent concession having regard to the fact that at the time the proceedings were commenced approximately 70% of the cable had already been laid in the relevant location. I propose therefore to consider the application that the respondents would cease the works, and that they be prohibited from carrying out any further works.
64. The applicant relies on my judgment in McCoy & Anor. v. Shillelagh Quarries Ltd. & Ors. [2015] IEHC 838 and in particular paras. 62-66 thereof, where I reviewed the factors that might influence the discretion of a court in considering whether to grant an order pursuant to s. 160 of the PDA where European environment factors are in play. At para. 66 I said the following:
“Thus I consider that the court has discretion, that it must be exercised sparingly, that the imperative of Community law must be respected in the exercise of discretion, and that the court should have as its starting point the fact that a development is unauthorised and that it may not by the exercise of its discretion “tacitly accept” the breach to adopt the terminology of Clarke J. in Cork County Council v. Slattery Precast Concrete Ltd.”
65. Clarke J. in Cork County Council v. Slattery Precast Concrete Limited & Ors. [2008] IEHC 291 favoured a similar approach, and noted that, while the court retained a discretion as to whether it might grant an order under s. 160 where it is established that there has been unauthorised development, that discretion is to be “sparingly exercised” (para. 12.1):
“At the same time the starting point has to involve recognition that unauthorised development is unlawful and that a court should be slow to tacitly accept the unauthorised nature of a development by giving any undue leeway to the party who has been guilty of the unauthorised development in the first place.”
66. Further, the present case engages the imperative to respect Community law in the exercise of discretion and the requirement under Community law for the protection of the environment as mandated by the EIA Directive. The environmental factor is a significant element in this case, and while I accept that the respondents did not act deliberately in a way that ignored the imperative of Community law, and that planning permissions exists for the primary development, their advice and understanding of the law was incorrect, and the respondents were aware of the rejection of “project splitting” by Peart J. in O’Grianna & Ors. v. An Bord Pleanála.
67. With these principles in mind, I turn now to consider the relevant discretionary factors.
Factors in the exercise of discretion
68. The respondents rely on a number of discretionary factors identified in the case law, as separately, and taken together, sufficient to deny the applicant relief. In particular, reliance is placed on the factors identified by the Supreme Court in Derrybrien Development Society Limited v. Saorgus Energy Limited & Ors. [2015] IESC 77, the relevant ones which may be usefully summarised as follows:
(a) the conduct and motivation of the applicant, including delay;
(b) the balance of prejudice between the applicant and the respondent, it being said that the applicant suffers no prejudice and the respondent will suffer prejudice;
(c) that the breaches are technical or trivial; and
(d) the public interest.
Discretion: conduct generally and delay
69. The primary argument the respondents make is that the applicant has delayed inordinately in seeking relief, having regard to the extent of cable now laid. The concession by the applicant that he does not seek the removal of the cable deals to some extent with the argument of delay, and the justice of the matter can be dealt with by an order which concerns only the prospective application in regard to future works.
70. The respondents argue that the applicant has an ulterior motive and has shown a lack of candour. The applicant objected to the wind farm development and has sought compensation for damages for inconvenience and alleged loss of grazing rights in other proceedings, and no evidence of likely environmental impact has been adduced by the applicant in this application.
71. The planning permission for the wind farm development will not expire until April, 2023. The concern of the respondents that government grant aid was limited in time is no longer a consideration as the grant aid deadline has been extended. The applicant lives locally and made submissions raising concerns regarding the amenities to his house and farm as well as concerns over the loss of grazing rights.
72. The applicant says that he became aware in August, 2016 that the construction of access roads into the wind turbine site had commenced, and that his legal and environmental advice had been that the works could not commence until planning permission existed for the development as a whole, including the grid works. Correspondence commenced with the secretary of the first respondent on 17th August, 2016. That letter related to the possible impact on the grazing rights and did not raise any planning, environmental or statutory concerns. The reply from the solicitors for the first respondent came on 12th September, 2016, but again confined itself to the question of the existence of grazing rights.
73. It was not until 28th September, 2016 that an initiating letter was sent by the solicitors for the applicant in which it was said that the works of laying underground cables had commenced without planning permission. An undertaking was sought, and by a letter of 4th October, 2016, the solicitors for the first respondent denied that unauthorised works were being carried out and suggested a meeting.
74. The applicant’s solicitors sent a letter on 15th November, 2016, identifying the folio lands of which he is registered owner, and again pointed to the requirement for planning permission, an EIA or an AA. A formal threat to commence an application for a planning injunction under s. 160 was made.
75. A reply was received on the following day in which the solicitors for the respondents inter alia confirmed that Kilronan had the benefit of a road opening licence from Sligo County Council to carry out the relevant works on the public road, including the public road “outside” the folio lands of the applicant and that as a “road” for the purposes of the Road Act 1993 includes the grass margin on which most of the works were being carried out, the works were authorised and could not constitute a trespass. An offer was made to reinstate the grass verge to the satisfaction of Sligo County Council. It was said that, as the works had commenced before 4th October, 2016, the works were substantially completed and that the applicant’s delay would prevent the grant of injunctive relief.
76. In the meantime, Sligo County Council sent a warning letter of 1st November, 2016, issued pursuant to s. 152 of the PDA in regard inter alia to the laying of the cables and conduits. It seems that no further steps have been taken by Sligo County Council.
77. Application for an injunction was sought by notice of motion issued on 24th November, 2016, returnable for 30th November, 2016.
78. The chronology on which the respondents rely is as follows:
· Works commenced on 12th September, 2016, and
· The applicant was aware of the works at the latest on 28th September, 2016, the date of the initiating letter.
· A period of eight weeks passed before the motion issued.
79. I consider that it was reasonable for the applicant to delay application for an order under s. 160 once he knew that the local authority had issued a warning letter, as he could have expected a full resolution of his environmental concerns through the Council engagement. Furthermore, I accept his evidence that it was not until 15th November, 2016, that the development works commenced at or near the boundary of his lands. I reject the suggestion that I would concern myself with the motivation of the applicant, and that he is not so much concerned with environmental questions but with his own interest arising from his grazing rights and the fact that his objection to the parent planning permission was not sustained. He is a citizen exercising a statutory right in regard to the works with which the local authority has expressed concerns.
80. The applicant has at all material times opposed the project, and has commenced proceedings seeking declaratory relief with regard to, inter alia his claim of the loss of, or interference to, his grazing rights. I do not accept that there is any significant delay, and delay must be considered in the context of whether it was reasonable of the applicant to negotiate, as he clearly did, and to await consideration by Sligo County Council following service by it of a warning letter.
81. Laches and delays are always a factor in an application for an injunction, because of the fact that a party may, on account of the delay or acquiescence of another, have engaged in actions which are either irrevocable or which are costly to reverse. In the instant case no specific prejudice would be caused to these respondents were the works not to conclude pending further determination by Sligo County Council regarding the planning status of the grid works. At the present time no works of any substance have been carried out on the wind farm project itself, and the timeframe for the relevant Refit grant aid has been extended.
82. In the High Court in Sweetman v. Shell E&P Ireland [2006] IEHC 85, [2007] 3 IR 13 Smyth J. held that it would exercise its discretion to grant relief on account of hardship because the delay:
“has had the effect of very significantly increasing the financial loss that would be suffered if an order under s. 160 had the effect of delaying the completion of the development ….” (para. 67)
83. These circumstances are not operative in the present case.
84. I am not satisfied that the conduct of the applicant should prevent the grant of the limited form of injunctive relief now sought.
The road opening licences: A discretionary factor
85. The question of the ownership of the road became a matter of some dispute in the course of the hearing. The respondents rely on the fact that the road is a public road and that a road opening licence exists in respect of the works, as sufficient evidence, not in regard to the planning status of the works, but as a matter to which regard should be had in the exercise of discretion under section 160.
86. Sligo County Council granted a licence pursuant to the Roads Act 1993 (“the Act of 1993”) for a “road opening licence” under registration 2016 SO 0054 in respect of the works for two periods, 13th June to 13th September, 2016, and thereafter from 13th September, 2016 to 31st December, 2016. Similar licences were granted by Leitrim and Roscommon County Councils. In each case, the licence issued to the predecessor in title of Derrysallagh but nothing turns on that fact for the purposes of the present application. The licence permitted works on the public road subject to detailed conditions for reinstatement and made provision for separation distances with existing pipes and cables and other similar conditions.
87. The subject lands form part of the public road in respect which the road opening licence was granted, and the respondents argue that by virtue of the granting of the road opening licence, they are “thereby authorised to carry out the construction of the said grid connection within the public road” (para. 6 of second affidavit of Denis Calnan sworn 15th December, 2016).
88. The applicant’s folio lands lie on either side of the roadway, and in general ownership of folio lands abutting the public road includes ownership of the surface of the road to the midpoint.
89. It is accepted that the road is a public road within the meaning of s. 2(1) of the Act of 1993 which defines a public road as:
“a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority.”
90. Section 13 of that Act provides the duty and power of the local authority to maintain and construct public roads, the provision for the so called “taking in charge” of roads.
91. The local authority has, by virtue of taking a road in charge, assumed liability and power to maintain the road but the title does not thereby vest. Butler, Keane on Local Government (2nd Edition, 2003) at p. 84 explains the matter as follows:
“At common law everything between the fences including the footpaths, cycle tracks and grass margins constitutes the public road, unless there is evidence to the contrary. Unless their land has been acquired for the purposes of building the road, the owner of the land remains the owner of the soil and the space above subject to the public use of the road. This was defined in ancient times as follows:
‘The King has nothing but the passage for himself and his people, but the freehold and all the profits belong to the owner of the soil.’ (One Roll.ABR.392)
At common law the presumption is that the owner of the land beside the road is the owner of the soil to the centre of the road. The owner of the soil is entitled to the produce of the land, including the trees and grass growing on it.”
92. It is an offence to excavate a public road without the consent of the local authority, and the road opening licence granted by Sligo County Council is given pursuant to the statutory power and subject to conditions, restrictions or requirements to which the same may be made. The road opening licences are granted pursuant to s. 13(10)(b) of the Act of 1993 as follows:
“(b) A consent under paragraph (a) may be given by the road authority subject to such conditions, restrictions or requirements as it thinks fit and any person who fails to comply with such conditions, restrictions or requirements shall be guilty of an offence.”
93. The granting of a road opening licence displaces the provisions of s. 13(10) (a)(iii) that it is an offence to excavate the road without consent, but a road opening licence does not confer a right or interest in the soil, as the purpose of the licence is to provide consent for an action which would otherwise be an offence under the Act.
94. In McKeever v. Hay & Ors. [2008] IEHC 145, Feeney J. held that the laying of pipes across the verge of a public road and the entry onto the lands in the absence of consent amounted to a trespass, and the placing of water pipes thereon resulted in a continuing trespass, notwithstanding that the pipes were being laid on behalf of Donegal County Council.
95. The grass verge is prima facie the property of the applicant, and no consent to enter has been given. Thus, prima facie, there is a trespass, and the road opening licence does not of itself amount to authorisation or permission to enter upon private land.
96. The applicant further argues that my discretion is engaged by the fact that the respondents do not have a licence pursuant to s. 254 of the PDA, the relevant part of which provides as follows:
“(1) Subject to subsection (2), a person shall not erect, construct, place or maintain—
(g) any other appliance, apparatus or structure, which may be prescribed as requiring a licence under this section, on, under, over or along a public road save in accordance with a licence granted by a planning authority under this section.”
97. No such permission or licence exists in the present case and the applicant argues that the respondents are therefore prima facie guilty of a criminal offence.
98. However, it is accepted that the respondents are a statutory undertaker as defined by s. 2(1) of the PDA, being a body authorised to provide or carry out works for the provision of electricity under s. 2(1)(b), and hold a licence or “instrument”, to use the language of s. 2(1), from the Commission for Energy Regulation pursuant to s. 16 of the Electricity Regulation Act 1999. In those circumstances I accept the argument of the respondents that the class of works engaged by them on the roadway the subject matter of the present application is one to which s. 254(2) provides an exemption from the requirements of s. 254(1) namely:
“(2) This section shall not apply to the following—
(c) the erection, construction, placing or maintenance under a public road of a cable, wire or pipeline by a statutory undertaker.”
99. Further, ss. 51 and 52 of the Electricity Supply Act 1957 (“the Act of 1957”), as amended, and s. 48 of the Act of 1999, in certain circumstances give power to local authorities and other authorities to interfere with public roads. Butler at p. 57 of his text suggests that the power of a local authority may include the power “to interfere with the rights of adjacent property owners” even without provision for compensation. For present purposes, I do not consider it necessary to decide if the provisions of the Act of 1957 or of the Act of 1999 are to be read as including a power of those authorised by a licence from a local authority to enter upon private roads, and I am prepared to accept that such proposition is at least arguable.
100. Insofar as the question of whether there was a trespass engages my discretion for the purposes of s. 160 of the PDA, the applicant has sufficiently identified the legal basis on which he makes this challenge and which he argues that the respondents have entered these lands without either planning permission, permission from him, or a statutory power so enabling them. Therefore, I do not accept that if there is a breach of the requirements of planning law, the breach is trivial in that the respondents were otherwise authorised to enter upon the lands and lay the conduits. The existence of a statutory licence or authorisation under the relevant statutory schemes cannot displace the requirement to obtain planning permission, but is a factor in favour of the respondents who cannot be said to have wholly disregarded the necessary other statutory requirements.
Discretion: the public interest
101. There are a number of public interests engaged in the present case. One coincides with the interest under Community law, the interest of the public in preserving what is recognised as being the significant amenity value of the subject lands in an isolated area of exceptional public beauty. Having regard to the prudent concession by the applicant that he will not seek the removal of the conduits already laid, the public interest in not being further inconvenienced by further road works on the site has been adequately dealt with.
102. I do not accept that what has occurred is a technical or trivial breach. It might in certain circumstances be such, were the issues solely related to the carrying out of works on the public road. However, the issue engages questions of environmental protection and the need, in the light of the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, to have regard to the environmental framework of a wind farm project as a whole. Therefore, while I accept that no specific individual environmental factors have been identified by the expert witness who gave evidence on affidavit on behalf of the applicant, because the grid connection must be considered as part of the overall project, and as the overall project is one of significant potential for environmental damage, a description of the breach as being trivial, minor or technical fails to reflect the broader environmental context in which this application was brought. The assessment of the environmental impact is a matter for the planning authority.
Conclusion
103. For these reasons, and weighing the prejudice likely to be suffered by the respondents, the fact that the Refit grant time limits have been extended, and that the primary works are not yet commenced, I propose making a limited order prohibiting the continuation of the grid construction and laying works, but no order that the works already completed be removed or that the lands be restored.
Fairyhouse Club Ltd. v. Bord Pleanala
[2001] IEHC 106 (18th July, 2001)
JUDGMENT of Mr. Justice Finnegan delivered the 18th day of July 2001.
The Local Government (Planning and Development) Act, 1963 Section 5 as amended by the Local Government (Planning and Development) Act, 1976 Section 14 provides as follows:-
“5 (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 Pleanala.
(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 Local Government (Planning and Development) Act, 1963 Section 82 as amended by the Local Government (Planning and Development) Act, 1992 Section 19 provides that a person shall not question the validity of a decision of An Bord Pleanala on any reference otherwise than by way of an application for Judicial Review, the application to be on Notice to the Planning Authority and any other party to the reference. Leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.
1. The first named Applicant is the owner of Fairyhouse Racecourse. The second named and third named Applicants (hereinafter called “the Promoters”) were the promoters of a two day concert which at the date of the reference was intended to be held on the first named Applicant’s lands on the 5th and 6th August, 2000 but they also then intended and still intend to hold further concerts at the same venue the next to be held there on the forthcoming August weekend. The first named Notice Party is the Planning Authority. The second named Notice Party resides adjacent to Fairyhouse Racecourse and is the Chairman of a local residents group Rathoath and District Concerned Residents Group.
2. In 1999 the Promoters entered into negotiations with the Planning Authority in respect of the event proposed for August 2000. On the 12th October, 1999 the Planning Authority wrote to the promoters in the following terms –
“I wish to advise that it is the Councils view, having regard to the location of your proposed entertainment within an existing entertainment complex which has been ongoing prior to the appointed day i.e., 1st October, 1964 and the fact that this is a once off event in the nature of a transient event as identified by the Supreme Court in the Lansdowne Road RFU case, that your proposed event does not require Planning Permission.”
3. By letter dated the 2nd May, 2000 the Notice Party made a reference to An Bord Pleanala pursuant to the Local Government (Planning and Development) Act, 1963 Section 5. The reference concerned the then forthcoming concert scheduled for the 5th and 6th August, 2000 and in short sought a declaration by An Bord as to whether the holding of the same constituted development or exempted development. The Promoters made submissions to An Bord Pleanala in response but they did so without prejudice to their contention that on the true construction of Section 5 the only persons entitled to make a reference under the Section are the developers or owners of the lands. In argument before me however it was not contended that a Planning Authority could not make a reference under the Section.
4. The decision of An Bord Pleanala was not made until the 24th November 2000 i.e., after the concert had taken place. A letter issued from An Bord Pleanala notifying the parties that its decision would not be made until after the date scheduled for the holding of the concert and this letter is headed as follows –
“Appeal Re: Whether the use of lands at Fairyhouse Racecourse, Rathoath, Co. Meath for the holding of a two day music festival on the 5th and 6th August 2000 is or is not development or exempted development”
5. The decision of An Bord Pleanala contains the following recital –
“Whereas a question has arisen as to whether the use of lands at Fairyhouse Racecourse, Rathoath, Co. Meath for the holding of a two day music festival is or is not development or exempted development.”
6. In his introduction to his report the inspector states –
“I have noted that the reference relates to land use proposed on specific dates in the current year. It is understood that there is not any commitment made by An Bord Pleanala to determine the reference before the relevant dates. Accordingly I am preparing my report as if the use was proposed for an uncertain summertime date in the future.”
7. Notwithstanding the foregoing I am satisfied that the matter before An Bord Pleanala was in the words of the Section “a particular case” namely the event held on the 5th and 6th August, 2000. The decision thereon is not a decision on the event scheduled for August next or for future years. The decision of An Bord Pleanala was that the event represented a material change of user, was development and did not constitute exempted development.
8. In these circumstances my first concern was to determine whether or not the issues raised in these proceedings are moot. The Applicants rely on the provisions of the Planning and Development Act, 2000 part XVI and the Planning and Development (Licensing of Outdoor Events) Regulations 2001, Regulation 19. The effect of these is that the Applicants’ position in relation to the 2001 event will differ if on the one hand the holding of the same requires Planning Permission or on the other the same is not a material change of use and so not development or is exempted development. If Planning Permission is not required for the event then the promoters will not require a licence for the event scheduled for August 2001. I am satisfied that the decision of An Bord Pleanala cannot determine the status of the August 2001 event as in its terms it relates as required by Section 5 to a particular case namely the August 2000 event. However, within the inspectors report upon which the An Bord Pleanala decision was based there are a number of findings of fact with which the Applicant does not agree. It is clear from papers exhibited on this application that An Bord Pleanala on such a reference will have regard to its previous decisions relevant to the case before it and accordingly the existence of this decision is of concern to the Applicant as it may affect future references in relation to future events which it is proposed should take place at Fairyhouse Racecourse. For this reason the Applicants argue that the issues raised on this application are not moot. Further it should be noted that the Local Government (Planning and Development) Act, 1963 Section 5 has been replaced by the Planning and Development Act, 2000 Section 5 which makes it clear that any person may institute a reference. The issue as to whether Section 5 of the 1963 Act enabled a person other than the owner or developer of the land in question to make a reference has now become moot as an issue of general interest by reason of the change in the relevant statutory provisions. However, the Applicants have availed of the right of Appeal under Section 5 (2) of the 1963 Act and if they succeed in having the decision of An Bord Pleanala quashed on any of the grounds upon which they rely, then it will not be necessary for then to pursue the Appeal. In these circumstances the decision of this Court on the issues raised is not merely of academic interest but is of practical benefit to the parties to the Appeal. So in these circumstances I am satisfied that while the issues sought to be raised in these proceedings have to an extent been overtaken by events they are not merely academic but of practical consequence and accordingly not moot.
9. I propose dealing in turn with the several grounds raised by the Applicant and to determine in respect of each whether the same is substantial.
Whether the Local Government (Planning and Development) Act, 1963 permits of a reference by a person other than the developer or owner of the lands in question.
10. In relation to this ground the Applicants rely upon dicta of Costello J in Patterson -v- Murphy 1978 ILRM 85 at p.103 –
“The procedures enacted by Section 27 were new ones and a completely new jurisdiction was given to the High Court. On the face of the Section no restriction on the Court’s jurisdiction appears. The Defendants’ case is, however, based on the provisions of Section 46 (4) of the 1976 Act by virtue of which the 1976 Act and the 1963 Act are to be construed as one Act and claims that the restriction becomes apparent when the two sections are read together. If the Defendants are right, then the effect of construing the two sections in the way suggested is that the efficient and expeditious machinery for stopping unauthorised development or use of land is not available in a case were a question arises as to what is or is not development or exempted development. In such cases the complainant (be it a Planning Authority or any other person) cannot avail of Section 27 until the much slower and considerably more cumbersome procedures of a reference to An Bord Pleanala (substituted for the Minister by the 1976 Act) followed, possibly, by an Appeal to the High Court have been exhausted.
I think it highly unlikely that the Oireachtas intended to produce the anomalous situation which would result from this interpretation of the two Sections and I am satisfied that they can be reasonably interpreted without producing such a result. The key to the problem lies in considering the scope of Section 5 of the 1963 Act. There are two possible ways of interpreting that Section. The first is to regard it as meaning that whenever and in whatever circumstances a question arises, whether under the 1963 Act or otherwise, as to what is or is not development that the question must be referred to the Minister. Take, for example, the case of two individuals who enter into an agreement to carry out a scheme of development which is expressed to be development within the meaning of the Act. If a dispute subsequently arose as to whether or not what was done amounted to such development this question would on the construction I am now considering have to be referred to the Minister. This, however, must be incorrect as it would mean that the legislature had intended that the Minister be appointed to arbitrate in every possible dispute including disputes of a private nature – a construction which is manifestly wrong. The alternative construction, and I believe the correct one, is that Section 5 means that if any question arises between a planning authority and another person in the course of the procedures established by the Act of 1963 as to what is or is not development then the question must be referred to the Minister. If this is the correct construction then Section 5 of the 1963 Act cannot in any circumstances bar an application under Section 21 of the 1976 Act.”
11. While the construction of Section 5 suggested by Costello J is obiter and I am by no means certain that it supports the construction of Section 5 contended for by the Applicants I am none the less satisfied that it supports the Applicants contention that it has substantial grounds to argue the construction of Section 5 for which it contends. Accordingly, I propose granting the Applicants leave to apply for the relief claimed in the Statement to Ground Application for Judicial Review at D (i) (ii) and (iii) upon the grounds set out at E (i) 1 and 2.
2. An Bord Pleanala had no jurisdiction to decide on a reference where the event at the date of the decision had already taken place.
12. There is nothing in the wording of the Section to support this contention. The Bords jurisdiction exists “ in any particular case” and here the Bord had a particular case referred to it for its decision. The reference was made on the 2nd May. 2000 in advance of the event concerned and in these circumstances An Bord Pleanala had an obligation to make a decision. It is not necessary for me to decide whether the position would be the same if the reference was made after the event had taken place. Having regard to the wording of the Section I am not satisfied that the Applicant has shown that this ground is substantial and accordingly I refuse leave.
An Bord Pleanala failed to provide any or any adequate statement of reasons for its decision.
13. While at first sight the reasons stated in the decision do no more than state that the event constitutes a material change of use, constitutes development and is not exempted development, regard must be had to the procedures adopted by the Bord. The Applicant received and was afforded an opportunity to comment upon the submissions of the Notice Party. After the decision, there was made available the Inspector’s report from which the reasoning which he applied to the circumstances clearly appears. The information thereby made available to the Applicants was sufficient to enable them to formulate their claim for Judicial Review in considerable detail. It is equally clear that there was sufficient information available to the Applicants to enable them to formulate an appeal pursuant to Section 5 (2) of the 1963 Act. Notwithstanding that the reasons given are terse, the Applicants have not in any way been prejudiced thereby. Likewise on this application I have not in any way been restricted in evaluating An Bord Pleanala’s procedures and reasoning for the purposes of this application. The Applicants’ submission, if correct, would result in an obligation on the Bord in every such case to give what would amount to a reasoned judgment: in any event the report of the Inspector amounts to nothing less than a reasoned judgment. Ideally, perhaps, the decision should have expressly adopted the inspectors report as the basis of its decision and that it did not do. However, in the circumstances of this case, I am not satisfied that this omission alone would justified me in holding that this ground is substantial as I am satisfied that the Inspectors report is the basis of the Bord’s decision and the reasons for that decision clearly appear from the report which is to be read in conjunction with the decision. I refuse leave on this ground.
4. The decision of the Respondent was arbitrary, irrational and unreasonable in all the circumstances.
14. Having regard to the view which I have taken in relation to the Inspectors report I am satisfied that there were ample grounds to justify the decision. The Applicant has not satisfied me that there are substantial grounds for contending that the decision should be quashed on the basis of the State (Keegan) -v- Stardust Victims Compensation Tribunal 1986 IR 642. I refuse leave on this ground.
5. An Bord Pleanala took into account irrelevant considerations and/or matters in respect of which there was no or no sufficient evidence before it.
15. The approach which I should adopt in relation to this ground is that set out in O’Keeffe -v- An Bord Pleanala 1993 1 IR. 39. I am satisfied from a perusal of the documents exhibited on this application that there was before An Bord Pleanala evidence which would justify it in reaching the decision which it in fact reached. In these circumstances I am not satisfied that this ground is substantial. I refuse leave on this ground.
An Bord Pleanala acted in breach of fair procedures by taking into account material in respect of which the Applicants were not afforded an opportunity to make submissions or to respond.
16. Among the papers disclosed on the Application is a document headed Bord Direction which contains the following statement:-
“In arriving at its decision the Bord noted the previous decision of the Bord in relation to the holding of one day musical events at Mondello Park (RF 09.0843).”
17. The Applicants contend that they ought to have been notified that this decision was a matter which might influence An Bord’s decision on this reference and afforded an opportunity to comment on the same. The decisions of An Bord Pleanala on references are matters of record and are available for inspection. If a party to a reference wishes it may draw An Bord’s attention to any previous decision of An Bord which it considers relevant whether that decision is favourable to his application or otherwise and in the latter case could seek to distinguish the same.
18. The procedure adopted by An Bord here whereby it made available to each party the submissions of the other for comment fully satisfies the requirements of natural justice. The procedure in fact adopted is cumbersome and results in considerable delay and to proceed as the Applicants suggest would add a further layer of delay. I am not satisfied that the Applicant’s have shown this ground to be substantial and I refuse leave on the same.
19. The Applicants complain of a number of other matters which the inspector took into account in his report and likewise suggest that they should have been afforded an opportunity to comment on the same. In respect of each of the matters relied upon I am again not satisfied that substantial grounds have been shown. In this regard I consider the existence of a full right of Appeal to the High Court as relevant. I regard the procedures adopted by An Bord in this case as fair and fully compliant with the requirements of natural justice.
20. While the Statement to Ground Application for Judicial Review contains other grounds, these were not pursued before me.
21. In the circumstances I grant leave to the Applicant as hereinbefore mentioned to seek the reliefs set out in the Statement to Ground Application for Judicial Review at D (i) (ii) and (iii) upon the grounds set out therein at E (i) 1 and 2 only.
Pierse & anor v An Bord Pleanala
[2018] IEHC 669 (30 November 2018)
URL: http://www.bailii.org/ie/cases/IEHC/2018/H669.html
Cite as: [2018] IEHC 669
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Judgment
Title:
Pierse & anor v An Bord Pleanála
Neutral Citation:
[2018] IEHC 669
High Court Record Number :
2017 No. 440 JR
Date of Delivery:
30/11/2018
Court:
High Court
Judgment by:
Simons J.
Status:
Approved
[2018] IEHC 669
THE HIGH COURT
JUDICIAL REVIEW
2017 No. 440 J.R
IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
BETWEEN
MAIRE OLIVE PIERSE
EILIN ENRIGHT
APPLICANTS
AND
AN BORD PLEANÁLA
RESPONDENT
KERRY COUNTY COUNCIL
DERMOT GODSELL
NOTICE PARTIESJUDGMENT of Mr Justice Garrett Simons delivered on 30 November 2018
INTRODUCTION
1. The within proceedings seek to challenge a declaration made by An Bord Pleanála pursuant to the provisions of Section 5 of the Planning and Development Act 2000 (as amended) (“PDA 2000”). In brief, An Bord Pleanála determined that work consisting of the forming of two entrances at lands near Listowel, County Kerry constituted “development”, and did not qualify as “exempted development”. The impugned determination is dated 5 April 2017.
2. Leave to apply for judicial review was granted ex parte by the High Court (Noonan J.) on 29 May 2017. The proceedings are grounded on an amended statement of grounds which was filed on 2 June 2017. The statement of grounds—as is all too often the position—pleads the case at great length. No less than 59 grounds are set out at part (E) of the statement of grounds.
3. An Bord Pleanála has filed a detailed statement of opposition in response, which clearly sets out the basis upon which the Board proposes to defend the proceedings. The Board’s statement of opposition is verified by an affidavit sworn on its behalf by Pierce Dillon dated 27 September 2017.
4. The application, the subject-matter of this judgment, is an application for leave to cross-examine An Bord Pleanála’s deponent, Mr Dillon, on his affidavit. The application is brought pursuant to the provisions of Order 40, rule 1 of the Rules of the Superior Courts.
5. The parties are in broad agreement as to the legal test governing an application for leave to cross-examine. There is, however, a significant dispute between the parties as to whether this legal test has been met in the particular circumstances of this case. As discussed presently, this dispute arises largely because of the nature of the averments included in Mr Dillon’s affidavit. Much of the latter part of the affidavit consists of comment and submission on the legal issues raised in the proceedings. Such material has no place in an affidavit. It is also inconsistent with the pro forma affidavit introduced as part of the amendments introduced in 2011 to the judicial review procedure under Order 84 of the Rules of Superior Courts. Whereas I have no doubt that the filing of such a lengthy and detailed affidavit was done with the best of intentions, and was intended to expedite the hearing of the substantive application for judicial review, it has had the unintended consequence of exposing the deponent to the possibility of cross-examination.
6. The application for leave to cross-examine Mr Dillon came on for hearing before me on the morning of Wednesday 28 November 2018.
Procedural Background
7. In order to put the dispute between the parties in context, it is necessary to rehearse briefly the procedural background against which the application for leave to cross-examine is made.
8. As noted earlier, the proceedings seek to challenge a determination by An Bord Pleanála made pursuant to the provisions of Section 5 of the PDA 2000. This section allows An Bord Pleanála to make a declaration as to whether certain acts are “exempted development”, i.e. a form of minor development which is exempt from the usual requirement to obtain planning permission. The legal consequences of such a declaration are explained in detail in the judgment of the Court of Appeal in Killross Properties Ltd. v. Electricity Supply Board [2016] 1 I.R. 541.
9. Various classes of exempted development are set out inter alia in Schedule 2 of the Planning and Development Regulations 2001 (as amended). Even if a proposed development prima facie falls within one of the classes, the benefit of exempted development may nevertheless be unavailable. This is because the benefit of exempted development is subject to certain limitations and conditions. Relevantly for the present proceedings, the benefit of exempted development is not available if the proposed development “endangers public safety by reason of traffic hazard or obstruction of road users”. See Article 9(1)(a)(iii) of the Planning and Development Regulations 2001 (as amended). This Article was cited by An Bord Pleanála in its determination.
10. One of the grounds relied upon by the Applicants in their amended statement of grounds is to the effect that An Bord Pleanála erred in law in concluding that the proposed development would endanger public safety by reason of traffic hazard and would obstruct road users. This argument is pleaded, in particular, at paragraphs E. 14 to 21 of the amended statement of grounds.
11. An Bord Pleanála has responded to this issue in detail at paragraphs 17 to 21 of its statement of opposition, as follows.
“17. Without prejudice to the generality of the foregoing, the Board considered the nature and purpose of the entrances formed and the uses of the land on either side of the entrances, namely the agricultural use of the Applicants’ lands and the residential nature of the housing estate over which access to and egress from the said agricultural lands would occur. The Board was not required to treat each entrance separately either in the Inspector’s report or in the terms of its decision in circumstances where the nature and purpose of each entrance, and the use of the lands on either side thereof, were identical.
18. Further, in this context, the Board relies, in particular, on the contents of paragraph 7.7.6 of the Board’s Inspector’s report. In explaining her conclusion that Article 9(1)(a)(iii) applied, the Board’s Inspector emphasised the residential nature of the housing estate and the fact that the housing estate currently comprises two cul-de-sacs wherein the gardens of the houses are open plan to the front with no walls or gates. In this context, she concluded, by reference to the nature of the extra traffic generated, that the development would cause a traffic hazard. This analysis was based on the Inspector’s own inspection of the site, which took place on or about 1st March 2017.
19. The Board’s conclusion that the proposed development would endanger public safety by reason of traffic hazard or obstruction of road users was clearly reasonable, rational and therefore lawful in the context of the residential nature and current layout of the housing estate.
20. Furthermore, there was clearly material before the Board to support its decision, including (but not limited to) the Inspector’s description of the current nature and use of the lands on the basis of her site inspection and the submissions of Mr Dermot Godsell.”
12. An Bord Pleanála’s statement of opposition is verified by an affidavit sworn by Mr Pierce Dillon on 27 September 2017. Mr Dillon describes himself as a senior executive officer with An Bord Pleanála. It is common case that Mr Dillon is not a member of An Bord Pleanála, and was not the inspector who dealt with this particular planning case.
13. Mr Dillon’s affidavit runs to some 28 paragraphs, and is not in the form prescribed for a verifying affidavit in Form No. 14 in Appendix T of the Rules of Superior Courts (as amended in 2011). (Rules of the Superior Courts (Judicial Review) 2011, S.I. No. 691 of 2011).
14. The first 10 paragraphs of the affidavit set out the chronology of events in terms of the processing of the Section 5 reference, and exhibit certain documentation.
15. The balance of the affidavit, then, consists largely of commentary and submission as to the legal issues in the case. For example, at paragraph 11, it is asserted that the question of whether a particular development would endanger public safety by reason of traffic hazard or obstruction of road users is a matter of planning judgment, within the particular competence and expertise of An Bord Pleanála, a specialist body established by statute, and is subject only to limited review by the High Court on grounds of unreasonableness or irrationality. At paragraph 13 of the affidavit, the nature of the jurisdiction and legal effect of a determination under Section 5 is set out.
16. These are not matters which should be included in an affidavit. Rather, these are matters which should either be set out in a statement of opposition or, more properly, included as part of the written legal submissions to be filed by An Bord Pleanála in advance of the substantive hearing.
17. As noted above, one of the issues raised in the proceedings is as to whether or not An Bord Pleanála had material before it which would justify its finding that the proposed development would constitute a traffic hazard or obstruct road users. During the course of the hearing before me, Senior Counsel on behalf of the Applicants, Mr James O’Reilly, SC, placed some emphasis on this issue in support of his application for leave to cross-examine. It is appropriate, therefore, to consider how precisely this issue is addressed in Mr Dillon’s affidavit.
18. Mr Dillon states as follows at paragraph 12 of his first affidavit.
12. “While it is ultimately a matter for legal submission, I say, believe and am advised that there was clearly material before the Board to justify its conclusion that the development would give rise to a traffic hazard or obstruction of road users . In this regard, I note, in particular, the Inspector’s description of the nature of the residential context through which access to the field would occur and the aforementioned submissions of Mr Godsell who was concerned about the nature of the traffic generated.”
*Emphasis not in original.
19. This averment has to be seen in the context of paragraph 20 of the statement of opposition which, it will be recalled, reads as follows.
“20. Furthermore, there was clearly material before the Board to support its decision, including (but not limited to) the Inspector’s description of the current nature and use of the lands on the basis of her site inspection and the submissions of Mr Dermot Godsell.”
*Emphasis not in original.
20. The statement by an employee of the Board to the effect that he has been “advised” of certain matters by undisclosed persons is ambiguous, and might be read as suggesting that he was advised of these matters by someone with direct knowledge of the appeal. For example, the advice might have come from the planning inspector, or even a member of the Board who might have provided detail of the Board’s deliberations on the appeal. This is something which could usefully be clarified by cross-examination. The outcome of the cross-examination might simply be to clarify that Mr Dillon was merely giving his own opinion having read the inspector’s report. If this were to be the outcome, the (short) cross-examination would nevertheless have been of benefit in clarifying the factual position. Without the benefit of cross-examination, however, the Applicants can only speculate.
21. Mr Dillon returns to the issue indirectly at paragraphs 19 and 20 of his first affidavit as follows.
“19. First, this was material which the Applicants could have but did not put before the Board in support of their case that the development was exempted development. The Applicants were clearly on notice of the traffic hazard issue, having been invited to respond to the Council’s referral of 14 November 2016 and the submission of Dermot Godsell of 2 February 2017. I say, believe and am advised that the Applicants cannot be permitted to use this application for judicial review as a vehicle to re-run the substantive subject-matter of the referral and, in that context, to introduce evidence that they could have but did not put before the Board in support of their case.
20. Second, the thrust of this new evidence/material clearly invites the Court to revisit the merits of the Board’s assessment as to whether the development will give rise to a traffic hazard or obstruction of road users, something which is impermissible in the context of an application for judicial review.”
22. A further affidavit was also filed on behalf of the Applicants’ consulting engineer (Tony O’Keeffe). This affidavit is dated 12 February 2018. Having set out part of Mr Dillon’s affidavit at paragraph 11, Mr O’Keeffe then states follows at paragraph 5 of his own affidavit.
“[…] This repeats in substance paragraph 11 of the Statement of Opposition. In the most significant matter that is in dispute between the parties, the affidavit of Mr Dillon does not state from whom the senior executive officer received advice to the above effect.”
23. Mr Dillon then filed a further affidavit dated 19 April 2018. He states as follows at paragraph 4 and 5 of this second affidavit.
“4. As regards Mr Fitzpatrick’s Affidavit, I note that Mr Fitzpatrick takes issue with my means of knowledge and also suggests that the filing of Mr O’Keeffe’s Further Affidavit is necessary ‘by way of rebuttal’ to my Affidavit as regards the issue of whether the two farm gates in issue amount to a traffic hazard. However, as is clear from my Verifying Affidavit of 27 September 2017, I offered no personal view or evidence on that issue, which is quintessentially a matter of planning expertise and judgement.
5. Rather, my Verifying Affidavit simply sought to summarise for the Court, on the basis of my review of the Board’s file, the chronology of this referral and to identify what the Inspector and the Board concluded in respect of the relevant issue therein. This was done entirely on the basis of the relevant documents on the Board’s file, which documents have been exhibited in these proceedings.”
24. With respect, the latter part of Mr Dillon’s first affidavit, and, in particular, his averment at paragraph 12 go somewhat further than this summary might suggest.
25. The notice of motion seeking leave to cross-examine was issued on 21 June 2018, grounded upon an affidavit of Mr Fitzpatrick, the Applicants’ solicitor. A replying affidavit was filed on behalf of An Bord Pleanála by its solicitor, Alice Whittaker, a partner in Philip Lee Solicitors. Ms Whittaker avers as follows in respect of the status of paragraph 12 of Mr Dillon’s first affidavit.
“17. At paragraph 26 of his affidavit Mr Fitzpatrick complains that Mr Dillon cannot aver that there was material before the Board to justify the conclusion that the development would give rise to a traffic hazard or obstruction of road users. He claims that only a member of the Board can explain the basis of its conclusion. However, as is clear from the statement of opposition filed herein, in defending the rationality of its conclusions at the hearing of this application for judicial review, the Board intends to rely on the documentation that was before it, the inspectors report on the Board’s direction and its decision. In line with established judicial review principles, particularly with regard to challenges to decisions of the Board, the legality and rationality of the Board’s decision stands or falls on the basis of the said documentary material and it is not necessary for a Board member to supplement the same with affidavit evidence.”
26. This averment is helpful insofar as it goes. However, the Board continues to rely on Mr Dillon’s first affidavit and has not sought to withdraw same. Nor has the Board sough to withdraw paragraph 20 of the statement of opposition.
Legal test
27. The notice of motion seeks an order pursuant to Order 40, rule 1 of the Rules of the Superior Courts. This, then, was the basis on which the application before me was made. There was no attempt to rely on the alternative rule which may be relevant, namely Order 39, rule 1 when read in conjunction with Order 84, rule 26.
28. The parties were in broad agreement as to the legal test governing an application for leave to cross-examine under Order 40, rule 1. Both parties cited the judgment of O’Donovan J. in Director of Corporate Enforcement v Seymour [2006] IEHC 369, and the more recent judgment of Baker J. in Somague Engenharia SA v Transport Infrastructure Ireland [2015] IEHC 723 (” Somague “).
29. I respectfully adopt the following passage from the judgment of Baker J. in Somague as a correct statement of the legal test.
“16. The leading case in this jurisdiction remains the decision of O’Donovan J. in Director of Corporate Enforcement v. Seymour [2006] IEHC 369. These were proceedings under s. 160 of the Companies Act 1990 brought by the applicant and the judgment was given in the application by the applicant to cross-examine the respondent on certain affidavits. The following statement of principle remains good law:
‘In my view, it is axiomatic that, when, in the course of applications to the court which are required to be heard and determined on affidavit, as is the situation in this case, it becomes apparent from the affidavits sworn in those proceedings that there are material conflicts of fact between the deponents of those affidavits, the court must, if requested to do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the deponents should be cross examined on his or her affidavit. This is so because it is impossible for a judge to resolve a material conflict of fact disclosed in affidavits. However, while it seems to me that, where it is debatable as to whether or not the cross examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend towards permitting the cross examination, at the end of the day it is within the discretion of the court as to whether or not such a cross examination should be directed and that discretion should only be exercised in favour of such a cross examination if the court considers that it is necessary for the purpose of disposing of the issues which the court has to determine.’
17. Certain matters were apparent from the statement of principle by O’Donovan J. and I set these out below:
a. Cross-examination will be permitted if there are material conflicts of fact apparent from affidavits.
b. Cross-examination may be required in order to allow a judge to resolve that material conflict.
c. The court should tend towards permitting cross-examination but
d. The discretion must nonetheless be exercised only if cross-examination is necessary for disposing of the issues
e. There may be examined not merely facts taken in the narrow sense but also the construction, or interpretation, or conclusions that a person draws from those facts, and cross-examination may be permitted in those circumstances even if there is no real dispute as to those material facts.
f. Thus opinions and conclusions may be tested by cross-examination both as to their reliability or reasonableness as the case may be.”
30. Senior Counsel on behalf of An Bord Pleanála, Rory Mulcahy, SC, submits that the legal test involves a two-fold test: (i) there must be a conflict on material facts, and (ii) it must be necessary to resolve that conflict in order to determine the legal issues in the proceedings. Mr Mulcahy argues that there is nothing in the affidavit of Mr Dillon which requires to be resolved in order to determine the issue in the proceedings, namely whether An Bord Pleanála had material before it to justify its finding that the proposed development would endanger public safety by reason of traffic hazard. It is suggested that while Mr Dillon may have expressed an opinion, it is not in any sense evidence by reference to which the legal issues in the case should be resolved and the trial judge should attach no weight to same.
31. Mr Mulcahy also makes the point that the oral submissions made on behalf of the Applicants at the hearing before me tend to suggest that the true purpose of the application is not so much to obtain the right to cross-examine Mr Dillon, but rather to address a concern which the Applicants have that further evidence or argument will emerge at the full hearing in support of the Board’s plea that it did have sufficient material before it.
Discussion and Decision
32. The extent to which a decision maker, such as An Bord Pleanála, is entitled to rely on affidavits filed by persons other than those directly involved in the making of the impugned decision is something which occasionally arises in judicial review proceedings. For example, the applicant in Westwood Club Ltd. v. An Bord Pleanála [2010] IEHC 16, raised a preliminary point as to the propriety of a senior executive officer, who was not a member of An Bord Pleanála and who did not attend at Board meetings, swearing the verifying affidavit. On the particular facts of that case, Hedigan J. concluded that the affidavit filed in those proceedings was in order.
33. It appears from the oral submissions made before me—and as helpfully highlighted by Senior Counsel for the Board—that at least part of the Applicants’ motivation for the bringing of the application seeking leave to cross-examine in the present case is a concern that at the substantive hearing new arguments will be introduced by the Board in order to bolster its plea that it had sufficient material before it to justify the finding in respect of traffic hazard/obstruction of road users.
34. These, however, are matters for the trial judge hearing the substantive application. The only matter before me is an application for leave to cross-examine. I am required to determine that application by reference to the relevant case law and, in particular, the test as set out by O’Donovan J. and Baker J.
35. Whereas the general position is that leave to the cross-examine will only be granted in respect of a conflict in respect of what might be described as primary facts , both judgments do suggest that, in at least some circumstances, it will also be appropriate to grant leave to cross-examine in respect of inferences to be drawn from primary facts. The point has been summarised by Baker J. in Somague as set out earlier to the effect that cross-examination may be appropriate to examine not merely facts taken in the narrow sense, but also the construction, or interpretation, or conclusions that a person draws from those facts, and cross-examination may be permitted in those circumstances even if there is no real dispute as to those material facts.
36. Much of the difficulty in the present case flows from the fact that An Bord Pleanála chose to file a very detailed and lengthy affidavit in support of its statement of opposition. Whereas it can sometimes be useful for parties to file an affidavit which sets out, in neutral terms, the chronology of events and exhibits any documents which may have been omitted by applicants in their affidavits, it is not, in my view, appropriate to use an affidavit as a vehicle for what are really legal submissions.
37. One of the issues for determination at the substantive hearing is whether there was sufficient material before An Bord Pleanála to justify its decision on the traffic hazard / road obstruction issue. The resolution of this issue will necessitate, first, identifying precisely the material which was relied upon by the Board in reaching its decision, and, secondly, determining whether that material was capable of supporting the Board’s decision. (The Board will presumably argue that this latter exercise must be carried out by reference to the principles in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39).
38. The averments at paragraph 12 of Mr Dillon’s first affidavit are potentially relevant to both of these issues. Indeed, it is to be presumed that the averments were included in the affidavit precisely because same were considered by Mr Dillon, and by the Board’s solicitors who filed the affidavit, to be relevant to the issues in the proceedings. It may be, of course, that the judge hearing the substantive action will ultimately rule that the affidavit evidence in this regard is inadmissible as hearsay or as opinion. That possibility is not, however, dispositive of the question of whether leave to cross-examine should be granted. The test is whether cross-examination is necessary for the purpose of disposing of the issues which the court has to determine. The trial judge will have to ascertain what material was before the Board, and for so long as the Board continues to rely on Mr Dillon’s first affidavit and paragraph 20 of its statement of opposition, it will be necessary to clarify what he means when he says he has been “advised” that there was clearly material before the Board to justify the conclusion that the development would give rise to a traffic hazard or obstruction of the road users.
39. If a deponent chooses to wade in and to address what are the very issues for determination in legal proceedings, and, further, sets out his view on the basis that he has been advised of same by some undisclosed party, then I think that the other side is entitled to challenge that by way of cross-examination. As I say, it may well be that not much will arise from such a cross-examination, and Mr Dillon will explain that he was merely expressing his own opinion on matters which are for the court to decide. Nevertheless, I think that when a deponent has set out his opinion in such strident terms, the other side must be entitled to at least limited cross-examination. If the cross-examination turns out to be a short one, this does not detract from the entitlement of the other party to have that right of cross-examination.
Proposed Order
40. In the circumstances, I will make an order pursuant to Order 40, rule 1 of the Rules of the Superior Courts directing that Mr Dillon attend the hearing of the substantive application for judicial review for the purposes of cross-examination. I will further direct that, in the event of his non-attendance, the entirety of his affidavit is to be disregarded.
41. Obviously, the cross-examination should not extend to those parts of the affidavit which consist purely of legal submission (such as at paragraphs 13 to 15 of the first affidavit). I have also given some consideration as to whether to attach terms to my order, stating that the cross-examination must be limited in some way. In particular, I considered whether the order directing that the cross-examination be expressly confined to the issue of traffic hazard / obstruction. On balance, however, I think that the precise ambit of the cross-examination is something which should be left to the trial judge. He or she will be in a better position to rein in any attempt by the other side to go beyond what is strictly necessary to establish the weight, if any, to be attached to Mr Dillon’s averments.
42. I will hear counsel as to the precise form of order and as to the order, if any, which should be made in respect of the costs of the application for leave to cross-examine.
Krikke & Ors v Barranafaddock Sustainable Electricity Limited
(Approved) [2022] IESC 41_2 (03 November 2022)
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 3rd day of November 2022
Introduction
1. This appeal provides yet another example of the complexities of our planning laws and of how difficult it is often in practice to apply this corpus juris. Once again the Court is required to confront – although, perhaps, in the end not necessarily determine – the vexed question of how the power given to An Bord Pleanála by s. 5 of the Planning and Development Act 2000 (as amended)(“the 2000 Act”) to determine whether a particular development amounts to development (and, if so, whether such development can be regarded as exempted development) can be aligned with the jurisdiction of the courts to grant an injunction restraining unauthorised development under s. 160 of the 2000 Act.
2. While I gratefully adopt the much fuller statement of facts contained in the judgment which Woulfe J. has just delivered, the essence of this case may nonetheless be summarised as follows.
3. The respondent (“Barranafaddock”) was granted a planning permission on 23rd November 2011 by Waterford County Council as planning authority (“the Council”) to modify an existing planning permission in respect of a wind farm at Ballyduffy, Co. Waterford, for which permission had originally been granted in 2005 so that the blade diameters of the wind turbines might be increased. The original development was subject to the requirements of what is now the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”) and An Bord Pleanála was required to (and did, in fact) carry out an EIA as part of its decision-making in 2005.
4. The key feature of the November 2011 permission was that the wind turbines were now to have an increased rotor blade diameter of 90 metres. By a decision dated 23rd November 2011, the Council decided to grant planning permission, albeit that this permission was subject to two particular conditions. Condition 1 of the 2011 permission provided that the development was to be carried out in accordance with the plans and particulars lodged with the application, save where amended by the conditions attached to the permission. The critical provision was, however, condition 3 of the 2011 permission, which provided that prior to the commencement of development, that details of the proposed turbines and associated structures, “including design, height and colour”, were required to be submitted to and agreed with the Council. It does not appear that any EIA was carried out as part of the Council’s decision-making process in November 2011.
5. Planning consultants retained by Barranfaddock made a compliance submission to the Council in November 2013. The submission included details as to the proposed height of the turbines, but the document also referred to schematic details of the turbine arrangement proposed being included in Appendix B. A drawing in Appendix B of that submission showed a schematic of a wind turbine and this indicated that the rotor blades would in fact have a diameter of 103 metres.
6. In December 2013, the Council addressed the consultants’ submission. So far as condition 3 was concerned, the decision-letter merely stated “Noted and agreed”. This was administrative brevity to the point of taciturnity. It was striking that there was no analysis of the merits of this application to modify the original planning permission, nor did the Council indicate that it was thereby (apparently) agreeing to an increase in the rotor diameter of the turbine blades from 90 metres to 103 metres. It is, however, only proper to record that the tip height of the turbine blades (that is, at the highest point reached by the tip of a blade) was not altered, as the height of the turbine hubs was lowered so that the tip height remains as permitted by the 2011 permission. The turbines became operational in 2015.
7. The appellants are local residents who were unhappy with the nature of the modified planning permission thus granted in November and December 2013. In response to complaints brought by the appellants and, indeed, others, residing in the general locality, the Council made a referral to the Board pursuant to s. 5 of the 2000 Act in May 2018. The question referred was whether the deviation from the “permitted blade length of…90 metres diameter…to the constructed blade length of …103 metres diameter” was or was not development, or, if it was development, was or was not exempted development.
8. Following the preparation of an inspector’s report in August 2018, the Board ultimately ruled on the s. 5 request in December 2018. Given its importance to this appeal, it is necessary to set out the terms of this particular ruling:
“AND WHEREAS An Bord Pleanála has concluded that –
(a) the erection of the turbines comes within the scope of the definition of development contained in s. 3 of the Planning and Development Act 2000,
(b) the alterations to turbines, including the length of the rotor arm/blades, do not come within the scope of the permission granted,
(c) there is no provision for exemption to the said alterations to turbines in either s. 4, as amended, of the said Act or Article 6 of the Planning and Development Regulations 2001, and
(d) therefore, the construction of the wind turbines as currently erected on site including the alterations to the rotor arms/blades is development and is not exempted development.
NOW THEREFORE An Bord Pleanála, in exercise of the powers conferred on it by s. 5(4) of the 2000 Act, hereby decides that the deviation from the permitted blade length of 45 metres (90 metres in diameter) to the constructed blade length of 51.5 metres (103 metres in diameter) in relation to permission granted under planning register reference number PD11/400 for modifications to a windfarm at Barranafaddock Wind Farm, County Waterford is development and is not exempted development.”
9. Following the commencement of s. 160 injunction proceedings brought by the appellants in the wake of the s. 5 ruling, in the High Court Simons J. ultimately concluded that the s. 5 decision bound the Court, so that (in effect) it could not be argued that the development was unauthorised. He duly granted the s. 160 order sought by the appellants: see Krikke v. Barranafaddock Sustainable Electricity Ltd. [2019] IEHC 825.
10. As Woulfe J. has noted in his judgment, this decision was reversed by the Court of Appeal in a comprehensive and impressively detailed judgment delivered by Donnelly J.: see Krikke v. Barranafaddock Sustainable Electricity Ltd. [2021] IECA 217. As I propose to refer to this judgment from time to time in the course of my own judgment it is perhaps simply sufficient to say at this point that she disagreed with the earlier conclusion of Simons J. that the Board was not entitled to make a determination in the course of the s. 5 reference that there had been unauthorised development. The only role of the Board was to determine whether there was development or exempted development. In those circumstances, the High Court was not bound to follow the conclusion reached by the Board as to unauthorised development.
11. Against this general background I can now proceed to address the principal issues in the appeal which Woulfe J. has identified.
Can the decision of the Council of November 2011 now be challenged?
12. The first question is whether the decision of the Council of 23rd November 2011 and the subsequent decision of the Council in November 2013 to agree the details of the development with the developer can now be questioned in these s. 160 proceedings even though the applicants have never sought to have either of these two decisions quashed by way of judicial review. Section 50(2) of the 2000 Act (as amended) provides that:
“A person shall not question the validity of any decision made or other act done by –
(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act….
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts.”
13. There are certainly features of the decision-making process which led to the modification of the original planning permission in respect of which I cannot avoid feeling are distinctly unhappy. It is true that the practice of granting planning permissions subject to the agreement of certain conditions with the planning authorities is one which has received the general imprimatur of this Court in Boland v. An Bord Pleanála [1996] 3 I.R. 435. Perhaps such a conclusion was inevitable given that the work of planning authorities and the Board would otherwise have been rendered impossible. Yet, as Woulfe J. notes in his judgment, right from the earliest period of our planning laws, concerns have been expressed about the manner in which this grant of planning permission subject to later to be agreed conditions system actually operated in practice.
14. This was the very point which was made by McMahon J. in Keleghan v. Corby and Dublin Corporation (1976) 111 ILTR 144 at 145. Here, a planning authority granted permission subject to a condition that a new access road would have to be resubmitted for agreement. As it happens the permission subsequently granted was held to be invalid by reason of non-compliance with the publication requirements of the planning regulations which were then in force. McMahon J. nonetheless drew attention to the problem presented by the grant of a permission of this kind:
“….in this case what was granted was permission for access subject to details to be submitted for agreement. The public would have no knowledge what details were in fact being agreed and [had] no way of appealing against the details agreed on between the applicants and the planning authority.”
15. This appeal presents what amounts to a paradigm example of the difficulties to which McMahon J. alluded. The appellants were clearly and immediately affected by any material increase in the diameter of the motor blade such was proposed here. While the overall height of the actual tip of the rotor blade might not have increased (given that the height of the turbine tubs was correspondingly reduced), the sweep of the turbine blades was nonetheless exponentially increased (πr2) by an increase in the blade size from 90m. to 103m. Given the views I am about to express regarding the scope of s. 50(2) of the 2000 Act, it is unnecessary to express any view as to the legality of the actions of Council in agreeing conditions of this kind and in this manner. It is sufficient to say that the appellants have an understandable grievance in that regard, even if the actions of the Council were intra vires (a question on which I express no view).
16. Yet even if one were to take the view that the actions of the Council in this regard were to be judged as unlawful so that the decision was in principle liable to be quashed, the effect of s. 50(2) of the 2000 Act is nonetheless now to shield that decision from judicial challenge. Section 50(2) of the 2000 Act operates as a sort of statutory suture which serves to bind up the wounds of invalidity and to banish all infirmities (subject only to some possible exceptions in the case of non-compliance with EU law) which might heretofore have attached themselves to the decision once – as here – the appellants did not commence the appropriate judicial review proceedings in a timely fashion as required by the sub-section or where time was not extended for this purpose. This is a simply another example of the more general principle of legal certainty which Henchy J. articulated in Murphy v. Attorney General [1982] I.R 241 at 315:
“For a variety of reasons, the law recognises that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened and cannot, or should not, be undone.”
17. It is perhaps unnecessary here to consider whether there are any possible exceptions to this statutory rule in the manner suggested, for example, by the judgment of McKechnie J. in Mone v. An Bord Pleanála [2010] IEHC 395 where a planning permission was apparently granted in the face of a statutory prohibition and where no proceedings had been brought in a timely fashion. It may be that this is a special case but even here such is the breadth of s. 50(2) that all types of legal errors – ranging from the trifling to the egregious – seem to be captured thereby. To that extent, therefore, I agree with Woulfe J. that Mone would appear to have been wrongly decided.
18. Here it is also necessary to say something about my own judgment in Wicklow County Council v. Fortune (No.3) [2013] IEHC 397 on which Simons J also relied. This was a case in which the Council had also applied for a s.160 order in respect of what was contended to be the unauthorised use of a large shed. The defendant had maintained that the shed itself was being used for the upkeep of horses whereas the Council contended that site inspections had revealed no evidence of this, save for the presence of manure and some three bales of straw.
19. The defendant had applied under s. 5 for a declaration that the structure was exempt in that it was being used for agricultural purposes. This application was refused in 2008, albeit that no very clear reasons had been given for that decision. No application for judicial review had ever been taken in respect of this decision.
20. In my judgment I held that the effect of this Court’s decision in Grianán an Aileach Interpretative Centre Co. Ltd. v. Donegal County Council [2004] IESC 41, [2004] 2 I.R 265 was impliedly to preclude the High Court from pronouncing on “whether particular development is exempted development where the relevant local authority has already refused to grant a s. 5 declaration.” While this meant that the Council were in principle entitled to a s. 160 order given that the local authority had refused to declare it exempt and the defendant did not have planning permission in respect of the use of the shed, I nonetheless noted (at paragraph 15 of the judgment) that the Council’s decision had not in fact addressed the central argument which had been advanced on behalf of the defendant, namely, that as (he contended) the shed was being used for agricultural purposes, it was thereby exempt.
21. It was on the basis and “in these special circumstances” that I thought it best to adjourn the s. 160 application to enable the defendant to make a fresh s. 5 application should he think it appropriate to do so: see paragraph 19 of the judgment. As is clear from the judgment, it was in essence purely a pragmatic exercise of a discretionary jurisdiction as to whether to adjourn the making of the s. 160 order. It was not, I think, in any real sense questioning the validity of the original s. 5 decision, because, as the judgment makes clear, I considered that in the absence of a judicial review challenge, the s. 5 decision remained valid and effective. It was, after all, the very validity of that s. 5 refusal and its binding status which led to my conclusion that the High Court had no jurisdiction to address the exemption question and that on the facts of that case the Council was in principle entitled to a s. 160 order.
22. In these circumstances I agree with Woulfe J. that, with respect, Simons J. was incorrect in placing the reliance which he did on this decision. In any event, it would seem based on a recent decision of the Court of Appeal in Norcanon Trust v. An Bord Pleanála [2021] IECA 307 that the Council probably would not have had a jurisdiction to entertain any fresh s. 5 application absent new circumstances. To that extent I may well have been wrong in Fortune (No.3) in adjourning the s. 160 application in the manner in which I did.
23. Section 50(2) states clearly that the validity of the relevant planning decision shall not be questioned save in the course of the requisite judicial review proceedings. As Barron J. said of its immediate statutory predecessor, “since the validity of the decision cannot [now] be questioned, it must be treated as valid”: see Inver Resources Ltd. v. Limerick Corporation [1987] I.R 159, at 162. In that case the argument was that since the permission was granted to a non-existent company, the permission was itself so worthless that it had no application at all. While Barron J. accepted that the validity of the decision could not now be questioned because the relevant judicial review proceedings had not been commenced within the statutory period, he nonetheless added (at 162):
“Nevertheless it cannot be given a greater validity than it purports to have. It is submitted on behalf of the applicants that since the company on whose behalf the application was made to which the permission has been granted never existed, in effect the permission is worthless because there is no one who can take its benefit.”
24. Barron J. went on first to conclude ([1987] IR 159 at 164) that:
“…it is not necessary to decide whether or not the advertisement was properly advertised. Even if it was not, the decision cannot now be questioned. Equally the failure to give proper details of the applicant cannot now be questioned. The planning authority may not have had the jurisdiction to make the decision, but the absence of jurisdiction cannot now be questioned.”
25. Barron J. then went to say:
“The only remaining issue is whether what they did has any substance or reality. It seems to me that it did. They had a real application before them and they adjudicated it upon it. This application was made by agents on behalf of a disclosed principal. In contract law, there might be ground for maintaining that, since the disclosed principal did not exist, the agent should be treated as the principal. However, the reality of the situation is that the second respondent [the de facto owner of the yet to be incorporated company] was the principal.”
26. In the present case there is no doubt but that was a real application to modify the permission. Even if it be said that the Council’s actions in November 2011 and November 2013 were ultra vires as permitting amendments to the original permission by open-ended conditions of this kind which extended the diameters of the rotor blades, it cannot be said that this did not relate to a real application made by an identifiable legal entity. In these circumstances, the decision to grant permission in this way and in this manner must be regarded as now standing beyond the reach of legal challenge.
27. I now turn to the second question of whether s. 50(2) the appellants can now challenge the validity of any such decision made or act done by the planning authority on EU law grounds, Issue 2: EU Law and domestic time limits
28. I entirely agree with the conclusions of Woulfe J. on this issue. It is perfectly clear from a multitude of decisions of the Court of Justice that domestic time limitation periods are in principle consistent with EU law provided the time periods in question comply with the principles of equivalence and effectiveness: see, e.g., Stadt Wiener Neustadt (C-348/15, C:2016: 882), paragraphs 40 and 41.
29. In that case a Viennese municipality had originally granted a planning permission for a plastic waste processing facility. In December 2002, the local regional government for the Land of Lower Austria sanctioned an extension of that plant, relying for this purpose on general environmental legislation. No environmental impact assessment was, however, carried out in respect of this latter permission. The three-year time limit in respect of applications for annulment of the decision had, however, expired.
30. The Court of Justice held that while national law was entitled to prescribe a time limit in respect of such annulment proceedings, such a limitation period could not go to the extent of deeming the permission to be valid for all possible purposes. As the Court noted (at paragraphs 45 and 46 of the judgment):
“45. ….it is the Court’s settled case-law that the Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 66).
46. To that end, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 68).”
31. For present purposes it is unnecessary to decide whether the extension of the rotor blades from 90m to 103m was in itself sufficient to trigger the application of an environmental impact assessment. Even if it did, the effect of s. 50(2) is to immunise that decision from legal challenge at the hands of these applicants, although, of course, in the light of the decisions of the Court of Justice in both Wells and Stadt Wiener Neustadt the State may still possibly have independent obligations under EU law vis-à-vis the site. I express no view whatever in relation to this because it could make no difference to the outcome of this particular appeal.
32. The real question is whether the eight-week time period (with a power to extend time) prescribed by s. 50(2) of the 2000 Act is compatible with EU law. There is, I think, no issue with the issue of equivalence. After all the sub-section applies indistinctly to all types of planning decisions and does not differentiate in any way as between domestic and EU law grounds of challenge.
33. Nor can there be any real question as to whether an eight-week period (with a power to extend time) makes it excessively difficult to bring judicial review proceedings of this kind. Here it would be difficult to improve on the analysis contained in the Court of Justice’s judgment in Danqua (C-429/15, EU:C: 2016: 789) where the issue of a 15-day limitation period in respect of an application by an asylum seeker for subsidiary protection was at issue. The Court expressed itself as follows (at paragraphs 42-46):
“42. In this connection, it must be noted that the Court has held that every case in which the question arises as to whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary, inter alia, to take into consideration, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure (see, to that effect, judgment of 11 November 2015, Klausner Holz Niedersachsen, C‑505/14, EU:C:2015:742, paragraph 41 and the case-law cited).
43. In this case, it is appropriate to consider, in particular, whether a time limit such as that at issue in the main proceedings may be justified for the purposes of ensuring the proper conduct of the procedure for examining an application for subsidiary protection, in the light of its implications for the application of EU law (see, by analogy, judgment of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 28).
44. As regards time limits, the Court has held that, in respect of national rules which come within the scope of EU law, it is for the Member States to establish those time limits in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see, to that effect, judgment of 29 October 2009, Pontin, C‑63/08, EU:C:2009:666, paragraph 48)…….
46. In that context, taking account of the difficulties such applicants may face because of, inter alia, the difficult human and material situation in which they may find themselves, it must be held that a time limit, such as that at issue in the main proceedings, is particularly short and does not ensure, in practice, that all those applicants are afforded a genuine opportunity to submit an application for subsidiary protection and, where appropriate, to be granted subsidiary protection status. Therefore, such a time limit cannot reasonably be justified for the purposes of ensuring the proper conduct of the procedure for examining an application for that status.”
34. It is true that the context of Danqua was very different from that which obtains in the present case. The general principle nevertheless holds true, in that the time period here is considerably more generous (eight weeks as compared to just fifteen days). There is furthermore a power to extend time. And, as Woulfe J. notes in his judgment, the applicants cannot realistically complain of any supposed difficulties attending the eight-week period because they never actually sought to apply for judicial review. And nor, for that matter, did they seek to extend time if (as might well have been the case) they were hampered in discovering what had actually happened by reason of a certain lack of transparency on the part of the Council’s own decision making. For good measure I would add that I agree completely with all that Donnelly J. has said on this point at paragraphs 128-143 of her judgment for the Court of Appeal.
35. In these circumstances it cannot be said that the statutory time limit in s. 50(2) contravenes the general EU law principles of equivalence and effectiveness.
The scope and effect of s. 5 of the 2000 Act
36. The final question relates to the vexed issue of the scope and effect of the s. 5 decision of the Council. At the heart of the decision of Simons J. was that the High Court was bound by the outcome of the s. 5 reference to conclude that the development was unauthorised, and this formed the basis for his conclusions in relation to the grant of the s. 160 planning injunction.
37. Section 5 of the 2000 Act provides in relevant part as follows:
“(4) … a planning authority may … refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.
(5) The details … of a decision made by the Board on a referral under this section shall be entered in the register.
(6)(a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.”
38. Perhaps the first thing to note is that no application to quash this s. 5 decision in judicial review proceedings has ever been brought by the developer. Just as with the November 2013 decision, the legality of the s. 5 decision is thereby rendered invulnerable to challenge even if it is also clear that features of that decision are at least questionable from a legal perspective. Here it is sufficient to observe that recital (b) of that decision (to the effect that the alterations to the turbines, including the length of the rotor blades, did not come within the scope of the permission granted in November 2011) amounts in substance to saying that the Council’s own November 2013 decision was ultra vires, even though, of course, this is a legal matter for the High Court and not for the Board. As Woulfe J. notes in his judgment, it is clear from a long line of authority that the Board’s s. 5 jurisdiction does not extend to determining that a particular development is unauthorised: see, e.g., Roadstone Provinces Ltd. v. An Bord Pleanála [2008] IEHC 210, per Finlay Geoghegan J. and my own judgments in Heatons Ltd. v. Offaly County Council [2013] IEHC 261 and Killross Properties Ltd. v. Electricity Supply Board [2016] IECA 207, [2016] 1 IR 541.
39. It is true, of course, that the Board’s s. 5 jurisdiction also extends to determining whether a change of use itself amounts to a “development” (in the extended sense of that definition contained in s. 3(1) of the 2000 Act) for the purposes of s. 5(4). It is in that particular sense – and I think in that sense only – that the Board is entitled to say that the change of use was in breach of the terms of the original permission and, hence, so constituted development which was not exempted development. It was in that particular sense that I stated in Killross Properties ([2016] 1 IR 541 at 548) that in practice there was “often only a slender line between ruling that a development is not exempted development since this will generally… imply that the development is unauthorised on the one hand and a finding that a particular development is unauthorised on the other.” The point here is that sometimes a s. 5 determination to the effect that there was development which was not exempt may implicitly suggest unauthorised development because in those circumstances it will be for the developer to point to the existence of a planning permission which, if not forthcoming, will necessarily suggest that the development is unauthorised.
40. This emerges from the judgment of McGuinness J. in Palmerlane Ltd. v. An Bord Pleanála [1999] 2 ILRM 514. Here the applicant had been granted planning permission for a retail convenience store, but upon the opening of the store, it also commenced selling some hot food. When the planning authority threatened enforcement action on the ground that the sale of the hot food was unauthorised, the company which owned the store referred this question to the Board under the precursor provisions to s. 5(4) of the 2000 Act.
41. The Board, however, declined to accept the reference on the ground that the company had commenced selling the food on the same day as the store opened, so that there had been no change of use in the ordinary and non-planning sense of this term and, hence, no “development” for this purpose. McGuinness J. quashed the Board’s refusal to accept the reference as erroneous in law. As I observed in Heatons Ltd. v. Offaly County Council [2013] IEHC 261, “it is implicit in this judgment that a change of use in breach of a planning condition could amount to ‘development’ for the purposes of s. 5(4).”: see Heatons at paragraph 37.
42. As it happens the decision Palmerlane was approved by this Court in Grianán an Aileach. It is important to recall that this was another s. 5 change of use case. While the applicant in Grianán an Aileach had been given permission to operate as a cultural centre, the local planning authority contended that there had been a material change of use (and, hence, “development” for the purposes of s. 5(4)) inasmuch as the centre seemed in practice to being operating as a venue for regular weekend entertainment and hospitality. In the course of examining whether the High Court had a jurisdiction to grant a declaration that there had not been a change of use, Keane C.J. observed ([2004] 2 IR 625 at 636-637) that:
“…a question as to whether the proposed uses constitute a ‘development’ which is not authorised by the planning permission is one which may be determined under the 2000 Act either by the planning authority or An Bord Pleanála.”
43. I suggest that these words require to be carefully parsed. They should not be understood – as a casual reader might perhaps think – that a planning authority could make a general finding that a development was unauthorised, since this is a function reserved to the courts by s. 160 of the 2000 Act. Rather, these words of Keane C.J. are really addressed to the situation where the planning authority (or the Board) simply determines in the course of a s. 5 determination that change of use X is not authorised by planning permission Y. While, as I have already noted, this tends to imply that the development is generally unauthorised, I stress once again that the ultimate decision as to whether it is unauthorised is reserved to the courts.
44. In the present case, of course, there was no change of use (and, hence, no “development”) in that special sense, since there is no suggestion that any of the turbines were used for any purpose other than wind generation. Yet in some ways none of this really matters in this case because such is the effect of s. 50(2) of the 2000 Act that the actual s. 5 decision of the Board must nonetheless be treated as being beyond legal challenge and must therefore be treated as valid.
45. What, then, was that decision? It seems to me that for this purpose the decision is the Board’s conclusion that the deviation from the permitted blade length of 90 metres in diameter to the constructed blade length of 103 metres in diameter was “development and is not exempted development.”
46. Proceeding, therefore, (as one must) from the basis that this decision is valid, it was necessary for Barranafaddock to point to the existence of a planning permission in respect of this development in order to defend the applicants’ s. 160 planning injunction application. But this it readily could do: it could rely on the 2013 decision granting permission for the 103m. blades in conjunction with the earlier 2011 decision.
47. It is unnecessary for this purpose to explore the complex inter-relationship between the Board’s s. 5 jurisdiction on the one hand and the courts’ s. 160 planning injunction jurisdiction on the other and, specifically, the question of whether the High Court (or, as the case may be, the Circuit Court) is bound by any such s. 5 determination. This was an issue addressed in cases such as Fortune (No. 3), Wicklow County Council v. O’Reilly [2015] IEHC 667 and Kilross Properties. It is perhaps sufficient to say that such is the curative effect of s. 50(2) on the various planning decisions in the present case, then even if the Board’s s.5 determination did indeed bind the High Court and imply that planning permission was necessary, Barranafaddock could in turn reach back to the 2011 and 2013 decisions of the Council to demonstrate that it had in fact a valid planning permission for this purpose.
Conclusions
48. It follows, therefore that I consider for all of these reasons that, with respect, Simons J. was wrong to conclude that the development was unauthorised and that the operation of the relevant turbine with their extended diameter blades should be restrained by a s. 160 injunction. I would instead affirm the decision of Donnelly J. in the Court of Appeal, albeit possibly for slightly different and more confined reasons. While there are certainly features of the Council’s decision-making in relation to the grant of permission which are unhappy and not entirely satisfactory, such is the effect of s. 50(2) of the 2000 Act that the validity of such decisions cannot now be questioned in the present s. 160 planning injunction proceedings.
49. It is for these reasons that I would dismiss the present appeal.
Result: Dismiss Appeal.