Planning Application
Planning and Development Act
Interpretation.
2.— (1) In this Act, except where the context otherwise requires—
“acquisition of land” shall be construed in accordance with section 213(2), and cognate words shall be construed accordingly;
“the Act of 1919” means the Acquisition of Land (Assessment of Compensation) Act, 1919;
F2[“Act of 1933” means the Foreshore Act 1933;]
“the Act of 1934” means the Town and Regional Planning Act, 1934;
“the Act of 1963” means the Local Government (Planning and Development) Act, 1963;
“the Act of 1976” means the Local Government (Planning and Development) Act, 1976;
“the Act of 1982” means the Local Government (Planning and Development) Act, 1982;
“the Act of 1983” means the Local Government (Planning and Development) Act, 1983;
“the Act of 1990” means the Local Government (Planning and Development) Act, 1990;
“the Act of 1992” means the Local Government (Planning and Development) Act, 1992;
“the Act of 1993” means the Local Government (Planning and Development) Act, 1993;
“the Act of 1998” means the Local Government (Planning and Development) Act, 1998;
“the Act of 1999” means the Local Government (Planning and Development) Act, 1999;
F3[“Act of 2001” means the Transport (Railway Infrastructure) Act 2001;
“Act of 2006” means the Planning and Development (Strategic Infrastructure) Act 2006;
“Act of 2007” means the Water Services Act 2007;
“Act of 2008” means the Dublin Transport Authority Act 2008;
“Act of 2010” means the Planning and Development (Amendment) Act 2010;]
F3[“adaptation to climate change” means the taking of measures to manage the impacts of climate change;]
“advertisement” means any word, letter, model, balloon, inflatable structure, kite, poster, notice, device or representation employed for the purpose of advertisement, announcement or direction;
“advertisement structure” means any structure which is a hoarding, scaffold, framework, pole, standard, device or sign (whether illuminated or not) and which is used or intended for use for exhibiting advertisements or any attachment to a building or structure used for advertising purposes;
“agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the training of horses and the rearing of bloodstock, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and “agricultural” shall be construed accordingly;
F3[“allotment” means an area of land comprising not more than 1,000 square metres let or available for letting to and cultivation by one or more than one person who is a member of the local community and lives adjacent or near to the allotment, for the purpose of the production of vegetables or fruit mainly for consumption by the person or a member of his or her family;]
“alteration” includes—
(a) plastering or painting or the removal of plaster or stucco, or
(b) the replacement of a door, window or roof,
that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures;
F3[“anthropogenic” in relation to greenhouse gas emissions means those emissions that result from or are produced by human activity or intervention;]
“appeal” means an appeal to the Board;
F3[“appropriate assessment” shall be construed in accordance with section 177R;]
“architectural conservation area” shall be construed in accordance with section 81(1);
“area of special planning control” shall be construed in accordance with section 85(8);
“attendant grounds”, in relation to a structure, includes land lying outside the curtilage of the structure;
F4[“Birds Directive” means Directive 2009/147/EC9 of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds;]
“Board” means An Board Pleanála;
“chairperson” means the chairperson of the Board,
F5[“chief executive”, in relation to a local authority, including a local authority exercising functions as a planning authority, means the chief executive appointed under Chapter 2 of Part 14 (as amended by section 54 of the Local Government Reform Act 2014) of the Local Government Act 2001;]
F2[“coastal planning authority” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
“Commissioners” means the Commissioners of Public Works in Ireland;
“company”, except in section 149(5), means a company within the meaning of section 2 of the Companies Act, 1963, or a company incorporated outside the State;
F6[“confirmation notice” means the confirmation notice sent pursuant to article 97B(2) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) following the entering onto the EIA portal of the information referred to in article 97A of those Regulations to which that notice relates;]
F3[“core strategy” shall be construed in accordance with section 10 (inserted by section 7 of the Planning and Development (Amendment) Act 2010);]
F7[…]
“dangerous substance” has the meaning assigned to it by the Major Accidents Directive;
“deputy chairperson” means the deputy chairperson of the Board;
“development” has the meaning assigned to it by section 3, and “develop” shall be construed accordingly;
“development plan” means a development plan under section 9(1);
F8[“DTA” means the body formerly known as the Dublin Transport Authority whose name was changed with effect from 1 December 2009 to the National Transport Authority pursuant to section 30 of the Public Transport Regulation Act 2009;]
F9[“EIA portal” means the website referred to in section 172A;]
F3[“electronic form” means information that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means and is capable of being used to make a legible copy or reproduction of that communicated information but does not include information communicated in the form of speech and such electronic means includes electrical, digital, magnetic, optical electro-magnetic, biometric, photonic and any other form of related technology;]
“endangered” means exposed to harm, decay or damage, whether immediately or over a period of time, through neglect or through direct or indirect means;
“enforcement notice” means an enforcement notice under section 154;
F3[“Environmental impact assessment” has the meaning given to it by section 171A;
F10[“Environmental Impact Assessment Directive” means Directive 2011/92/EU of the European Parliament and of the Council of 13 December 20113 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 20144 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment;]]
F11[“environmental impact assessment report” means a report of the effects, if any, which proposed development, if carried out, would have on the environment and shall include the information specified in Annex IV of the Environmental Impact Assessment Directive;]
F4[“European site” has the meaning given to it by section 177R of Part XAB;]
F12[“European Union” means European Union within the meaning of the European Communities Act 1972 (No. 27 of 1972);]
“exempted development” has the meaning specified in section 4;
“exhibit”, in relation to an advertisement, includes affix, inscribe, print, paint, illuminate and otherwise delineate;
“existing establishment” has the meaning that it has in the Major Accidents Directive;
“fence” includes a hoarding or similar structure but excludes any bank, wall or other similar structure composed wholly or mainly of earth or stone;
F3[“flood risk assessment” means an assessment of the likelihood of flooding, the potential consequences arising and measures, if any, necessary to manage those consequences;]
F13[“functional area” means, in relation to a planning authority, its administrative area for the purposes of the Local Government Acts 1925 to 2014;]
“functions” includes powers and duties;
F14[“Greater Dublin Area” (“GDA”) has the meaning assigned to it by section 3 of the Dublin Transport Authority Act 2008;]
“habitable house” means a house which—
(a) is used as a dwelling,
(b) is not in use but when last used was used, disregarding any unauthorised use, as a dwelling and is not derelict, or
(c) was provided for use as a dwelling but has not been occupied;
F4[“Habitats Directive” means Council Directive 92/43/EEC10 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, amended by Corrigendum to Council Directive 92/43/EEC11 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora amended by Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded12; Council Directive 97/62/EC13 of 27 October 1997 adapting to technical and scientific progress Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded14, and Council Directive 2006/105/EC15 of 20 November 2006 adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/EC in the field of environment, by reason of the accession of Bulgaria and Romania;]
“house” means a building or part of a building which is being or has been occupied as a dwelling or was provided for use as a dwelling but has not been occupied, and where appropriate, includes a building which was designed for use as 2 or more dwellings or a flat, an apartment or other dwelling within such a building;
F3[“housing strategy” means a strategy included in a development plan under section 94;]
“integrated pollution control licence” means a licence under Part IV of the Environmental Protection Agency Act, 1992;
“land” includes any structure and any land covered with water (whether inland or coastal);
F3[“landscape” has the same meaning as it has in Article 1 of the European Landscape Convention done at Florence on 20 October 2000;
F15[“large-scale residential development” means a development that includes—
(a) the development of 100 or more houses,
(b) the development of student accommodation that includes 200 or more bed spaces,
(c) both the development of 100 or more houses and of student accommodation, or
(d) both the development of student accommodation that includes 200 or more bed spaces and of houses,
where the LRD floor space of—
(i) in the case of paragraph (a), the buildings comprising the houses,
(ii) in the case of paragraph (b), the student accommodation,
(iii) in the case of paragraphs (c) and (d), the buildings comprising the houses and the student accommodation,
is not less than 70 per cent, or such other percentage as may be prescribed, of the LRD floor space of the buildings comprising the development;]]
“local area plan” means a local area plan under section 18;
F16[“local authority” means a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014);]
F15[“LRD” means large-scale residential development;]
F15[“LRD appeal” means an appeal against a decision of a planning authority that relates to an application for permission to which section 32A(1) applies;]
F15[“LRD meeting” means a meeting in accordance with sections 32B and 32C;]
F15[“LRD opinion” has the meaning given to it by section 32D;]
F15[“LRD floor space”, in relation to a building or part of a building, means the area ascertained by the internal measurement of the floor space on each floor of a building or part of a building (including internal walls and partitions), disregarding any floor space provided for—
(a) the parking of vehicles by persons—
(i) occupying or using the building or the part of the building,
(ii) for a purpose incidental to the primary purpose of the building or part of the building,
and
(b) ancillary residential services, including gyms and child-care facilities;]
“major accident” has the meaning assigned to it by the Major Accidents Directive;
F4[“Major Accidents Directive” means Council Directive 96/82/EC of 9 December 199616 amended by Directive 2003/105/EC of the European Parliament and Council of 16 December 200317;]
F17[…]
F2[“maritime area” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“maritime area consent” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“maritime site” means a part of the maritime area, and includes—
(a) the waters of that part of the maritime area,
(b) the seabed in that part of the maritime area, and
(c) all substrata beneath the seabed in that part of the maritime area;]
F2[“maritime spatial plan” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“maritime spatial planning” means—
(a) maritime spatial planning within the meaning of Directive 2014/89/EU of the European Parliament and of the Council of 23 July 201426, and
(b) land-sea interactions within the meaning of that Directive;]
F18[“mine” means an excavation or system of excavations made for the purpose of, or in connection with, the getting, wholly or substantially by means involving the employment of persons below ground, of minerals (whether in their natural state or in solution or suspension) or products of minerals;
“minerals” includes stone, slate, clay, gravel, sand and other natural deposits except peat;]
“Minister” means the Minister for the Environment and Local Government;
F2[“National Marine Planning Framework” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“national newspaper” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F19[“National Spatial Strategy” means the “National Spatial Strategy: 2002 – 2020” published by the Government on 28 November 2002, or any document published by the Government which amends or replaces that Strategy;]
F3[“Natura 2000 network” has the meaning assigned to it by Article 3, paragraph 1 of the Habitats Directive;
“Natura impact statement” shall be construed in accordance with section 177T;
“Natura impact report” shall be construed in accordance with section 177T;]
F2[“nearshore area” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
“new establishment” has the meaning that it has in the Major Accidents Directive;
F20[“NTA” means the National Transport Authority, being the name to which the name of the Dublin Transport Authority was changed with effect from 1 December 2009 pursuant to section 30 of the Public Transport Regulation Act 2009;]
F2[“objectives of maritime spatial planning” means—
(a) those matters to which the State is required, in accordance with paragraph 1 of Article 5 of Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014, to give consideration when establishing and implementing maritime spatial planning,
(b) those matters to which the State is required, in accordance with paragraph 2 of the said Article 5, to aim to contribute through maritime spatial plans, and
(c) objectives that the State is, for the time being, seeking to pursue in accordance with the second sentence of the said paragraph 2;]
“occupier”, in relation to a protected structure or a proposed protected structure, means—
(a) any person in or entitled to immediate use or enjoyment of the structure,
(b) any person entitled to occupy the structure, and
(c) any other person having, for the time being, control of the structure;
F21[“operator” in relation to a quarry means a person who at all material times is in charge of the carrying on of quarrying activities at a quarry or under whose direction such activities are carried out;]
“ordinary member” means a member of the Board other than the chairperson;
F2[“outer maritime area” means that part of the maritime area that is not within the nearshore area of any coastal planning authority;]
“owner”, in relation to land, means a person, other than a mortgagee not in possession, who, whether in his or her own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let;
“party to an appeal or referral” means the planning authority and any of the following persons, as appropriate—
(a) the appellant,
(b) the applicant for any permission in relation to which an appeal is made by another person (other than a person acting on behalf of the appellant),
(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,
(d) in the case of a referral under section 34(5), the applicant for the permission which was granted,
(e) in the case of a referral under section 37(5), the person who made the application for permission which was returned by the planning authority,
(f) any person served or issued by a planning authority with a notice or order, or copy thereof, under sections 44, 45, 46, 88 and 207,
F22[(ff) in the case of a referral under section 57(8), the person making the referral,]
(g) in the case of a referral under section 96(5), a prospective party to an agreement under section 96(2),
(h) in the case of an appeal under section 169, the development agency,
(i) in the case of a referral under section 193, the person by whom the application for permission for erection of the new structure was made,
(j) the applicant for a licence under section 254 in relation to which an appeal is made by another person (other than a person acting on behalf of the appellant),
and “party” shalcl be construed accordingly;
F23[“permission” means a permission granted under F24[section 34, 37G, 37N or 293], as appropriate;]
F24[“permission regulations” means regulations under section 33, 37P, 172(2), 174 or 306;]
F4[“planning application” means an application to a planning authority, or the Board, as the case may be, in accordance with permission regulations for permission for the development of land required by those regulations;]
F25[“planning authority” means a local authority;]
“prescribed” means prescribed by regulations made by the Minister and “prescribe” shall be construed accordingly;
“proposed protected structure” means a structure in respect of which a notice is issued under section 12(3) or under section 55 proposing to add the structure, or a specified part of it, to a record of protected structures, and, where that notice so indicates, includes any specified feature which is within the attendant grounds of the structure and which would not otherwise be included in this definition;
F15[“prospective LRD applicant” has the meaning given to it by section 32A;]
“protected structure” means—
(a) a structure, or
(b) a specified part of a structure,
which is included in a record of protected structures, and, where that record so indicates, includes any specified feature which is within the attendant grounds of the structure and which would not otherwise be included in this definition;
“protection”, in relation to a structure or part of a structure, includes conservation, preservation and improvement compatible with maintaining the character and interest of the structure or part;
“public place” means any street, road, seashore or other place to which the public have access whether as of right or by permission and whether subject to or free of charge;
“public road” has the same meaning as in the Roads Act, 1993;
F26[“quarry” means an excavation or system of excavations made for the purpose of, or in connection with, the getting of minerals (whether in their natural state or in solution or suspension) or products of minerals, being neither a mine nor merely a well or bore-hole or a well and bore-hole combined, and shall be deemed to include—
(i) any place on the surface surrounding or adjacent to the quarry occupied together with the quarry for the storage or removal of the minerals or for the purposes of a process ancillary to the getting of minerals, including the breaking, crushing, grinding, screening, washing or dressing of such minerals but, subject thereto, does not include any place at which any manufacturing process is carried on;
(ii) any place occupied by the owner of a quarry and used for depositing refuse from it but any place so used in connection with two or more quarries, and occupied by the owner of one of them, or by the owners of any two or more in common, shall be deemed to form part of such one of those quarries as the Minister may direct;
(iii) any line or siding (not being part of a railway) serving a quarry but, if serving two or more quarries shall be deemed to form part of such one of them as the Minister may direct;
(iv) a conveyor or aerial ropeway provided for the removal from a quarry of minerals or refuse.]
“record of protected structures” means the record included under section 51 in a development plan;
F27[“referral” means a referral to the Board under section 5, 34(5), 37(5), 57, 96(5) or 193(2);]
F28[“regional assembly” means a body established in accordance with section 43 (as amended by the Local Government Reform Act 2014) of the Local Government Act 1991;]
F29[“regional assemblies in respect of the GDA” means regional assemblies established in accordance with section 43 (as amended by the Local Government Reform Act 2014) of the Local Government Act 1991, in respect of a region or regions which includes all or part of the Greater Dublin Area for the purposes of section 3 of the Dublin Transport Authority Act 2008;]
F30[“regional spatial and economic strategy” means regional spatial and economic strategy made under Chapter III of Part II;]
“register” means the register kept under section 7;
“registering authority” means a registering authority within the meaning of the Registration of Title Act, 1964;
F31[“reserved function”, in relation to a local authority, shall be construed in accordance with section 131 (as amended by the Local Government Reform Act 2014) of the Local Government Act 2001;]
“risk” has the meaning assigned to it by the Major Accidents Directive;
“road” has the same meaning as in the Roads Act, 1993;
“seashore” has the same meaning as in the Foreshore Act, 1933;
F3[“service connection” has the meaning given to it by section 2 of the Act of 2007;
“settlement hierarchy” has the meaning given to it by section 10(2C) (inserted by section 7 of the Act of 2010); ]
“shares” includes stock and “share capital” shall be construed accordingly;
“special amenity area order” means an order confirmed under section 203;
“State authority” means—
(a) a Minister of the Government, or
(b) the Commissioners;
“statutory undertaker” means a person, for the time being, authorised by or under any enactment or instrument under an enactment to—
(a) construct or operate a railway, canal, inland navigation, dock, harbour or airport,
(b) provide, or carry out works for the provision of, gas, electricity or telecommunications services, or
(c) provide services connected with, or carry out works for the purposes of the carrying on of the activities of, any public undertaking;
F3[“strategic development zone” has the meaning given to it by section 165; ]
F32[“strategic downstream gas pipeline” means any proposed gas pipeline, other than an upstream gas pipeline, which is designed to operate at 16 bar or greater, and is longer than 20 kilometres in length;
F3[“strategic environmental assessment” means an assessment carried out in accordance with regulations made under section 10(5), 13(12), 19(4), 23(3), or 168(3) as the case may be;]
“strategic gas infrastructure development” means any proposed development comprising or for the purposes of a strategic downstream gas pipeline or a strategic upstream gas pipeline, and associated terminals, buildings and installations, whether above or below ground, including any associated discharge pipe;
“strategic infrastructure development” means—
(a) any proposed development in respect of which a notice has been served under section 37B(4)(a),
(b) any proposed development by a local authority referred to in section 175(1) or F33[subsection (3) or (6) of section 226],
F34[(c) any proposed development referred to in section 181A(1) which has been identified as likely to have significant effects on the environment in accordance with regulations made under section 176,]
(d) any proposed development referred to in section 182A(1),
(e) any proposed strategic gas infrastructure development referred to in section 182C(1),
(f) any scheme or proposed road development referred to in section 215,
(g) any proposed railway works referred to in section 37(3) of the Transport (Railway Infrastructure) Act 2001 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006), or
F35[(h) any compulsory acquisition of land referred to in section 214, 215A, 215B or 215C, being an acquisition related to development specified in any of the preceding paragraphs of this definition;]
“Strategic Infrastructure Division” means the division of the Board referred to in section 112A(1);
“strategic upstream gas pipeline” means so much of any gas pipeline proposed to be operated or constructed—
(a) as part of a gas production project, or
(b) for the purpose of conveying unprocessed natural gas from one or more than one such project to a processing plant or terminal or final coastal landing terminal,
as will be situate in the functional area or areas of a planning authority or planning authorities;]
“structure” means any building, structure, excavation, or other thing constructed or made on, in or under any land, or any part of a structure so defined, and—
(a) where the context so admits, includes the land on, in or under which the structure is situate, and
(b) in relation to a protected structure or proposed protected structure, includes—
(i) the interior of the structure,
(ii) the land lying within the curtilage of the structure,
(iii) any other structures lying within that curtilage and their interiors, and
(iv) all fixtures and features which form part of the interior or exterior of any structure or structures referred to in subparagraph (i) or (iii);
F15[“student accommodation” means a building or part thereof used, or to be used, for the sole purpose (subject to paragraph (b)) of providing residential accommodation to students during academic term times, whether or not provided by a relevant provider (within the meaning of the Qualifications and Quality Assurance (Education and Training) Act 2012 ), and that is not used, or to be used,—
(a) as permanent residential accommodation, or
(b) as a hotel, hostel, apart-hotel or similar type accommodation other than for the purposes of providing residential accommodation to tourists or visitors outside of academic term times;]
F3[“substitute consent” has the meaning given to it by section 177A;]
“substratum of land” means any subsoil or anything beneath the surface of land required—
(a) for the purposes of a tunnel or tunnelling or anything connected therewith, or
(b) for any other purpose connected with a scheme within the meaning of the Roads Act, 1993;
F36[“this Act” includes a statutory instrument made thereunder;]
“Transboundary Convention” means the United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, done at Espoo (Finland), on 25 February, 1991;
F14[“transport strategy” has the meaning assigned to it by section 12 of the Dublin Transport Authority Act 2008;]
“traveller” means a traveller within the meaning of section 2 of the Housing (Traveller Accommodation) Act, 1998;
“unauthorised development” means, in relation to land, the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use;
“unauthorised structure” means a structure other than—
(a) a structure which was in existence on 1 October 1964, or
(b) a structure, the construction, erection or making of which was the subject of a permission for development granted under Part IV of the Act of 1963 or deemed to be such under section 92 of that Act F23[or under F24[section 34, 37G or 37N or 293] of this Act], being a permission which has not been revoked, or which exists as a result of the carrying out of exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act);
“unauthorised use” means, in relation to land, use commenced on or after 1 October 1964, being a use which is a material change in use of any structure or other land and being development other than—
(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 F23[or under F24[section 34, 37G, 37N or 293] of this Act], being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;
“unauthorised works” means any works on, in, over or under land commenced on or after 1 October 1964, being development other than—
(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 F23[or under F24[section 34, 37G, 37N or 293] of this Act], being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;
“use”, in relation to land, does not include the use of the land by the carrying out of any works thereon;
“warning letter” means a notification in writing under section 152(1);
“waste licence” means a waste licence under Part V of the Waste Management Act, 1996;
“works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal and, in relation to a protected structure or proposed protected structure, includes any act or operation involving the application or removal of plaster, paint, wallpaper, tiles or other material to or from the surfaces of the interior or exterior of a structure.
(2) In this Act—
(a) a reference to a section, Schedule, Chapter or Part is to a section, Schedule, Chapter or Part of this Act, unless it is indicated that reference to some other enactment is intended, and
(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
(3) In this Act, a reference to the carrying out of development on behalf of a State authority shall, where that authority is a Minister of the Government, be construed as including a reference to the carrying out of development by the Commissioners on behalf of the Minister.
(4) A reference in this Act to contravention of a provision includes, where appropriate, a reference to refusal or failure to comply with that provision.
(5) A reference in this Act to performance of functions includes a reference to the exercise of powers and the performance of duties.
(6) A reference in this Act to any other enactment shall, except where the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.
(7) The doing of anything that is required under this Act to be done by resolution shall be a reserved function.
F37[(8) Subject to this Act, a word or expression that is used in this Act and that is also used in the Environmental Impact Assessment Directive has, unless the context otherwise requires, the same meaning in this Act as it has in that Directive.]
Annotations
Amendments:
F2
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 1, S.I. No. 488 of 2022.
F3
Inserted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(c), S.I. No. 405 of 2010.
F4
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(b), S.I. No. 405 of 2010.
F5
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6 and sch. 2 ref. no. 2, S.I. No. 436 of 2018.
F6
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F7
Deleted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(a), S.I. No. 405 of 2010.
F8
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 1, S.I. No. 214 of 2014.
F9
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F10
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(i), in effect as per reg. 2(1).
F11
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(ii), in effect as per reg. 2(1).
F12
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F13
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 2, S.I. No. 214 of 2014.
F14
Inserted (4.01.2010) by Dublin Transport Authority Act 2008 (15/2008), s. 81, S.I. No. 574 of 2009.
F15
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 2, S.I. No. 715 of 2021.
F16
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 3, S.I. No. 214 of 2014.
F17
Deleted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6 and sch. 2 ref. no. 1, S.I. No. 436 of 2018.
F18
Inserted (15.11.2011) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011 (S.I. No. 584 of 2011), reg. 3.
F19
Inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(a), S.I. No. 525 of 2006.
F20
Inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2, part 4 ref. 5, S.I. No. 214 of 2014.
F21
Inserted (15.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 16, S.I. No. 474 of 2011.
F22
Inserted (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 6(a), commenced on enactment.
F23
Inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(a), not commenced as of date of revision.
F24
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 1, S.I. No. 488 of 2022.
F25
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 6, S.I. No. 214 of 2014.
F26
Substituted (15.11.2011) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011 (S.I. No. 584 of 2011), reg. 3.
F27
Substituted (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 6(b), commenced on enactment.
F28
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 7.
F29
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4, ref. 8.
F30
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 9, S.I. No. 214 of 2014.
F31
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 10, S.I. No. 214 of 2014.
F32
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(b) and (c), S.I. No. 684 of 2006.
F33
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 7, S.I. No. 436 of 2018.
F34
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 3.
F35
Substituted (21.07.2009) by Harbours (Amendment) Act 2009 (26/2009), s. 7(2)(a), commenced on enactment.
F36
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F37
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(b), in effect as per reg. 2(1).
Modifications (not altering text):
C18
Prospective affecting provision: definitions inserted in subs. (1) by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(a), not commenced as of date of revision.
F23[“abstraction” has the same meaning as in the Water Environment (Abstractions and Associated Impoundments) Act 2022;]
F23[“abstraction licence” means a licence granted by the Environmental Protection Agency under Part 5 of the Water Environment (Abstractions and Associated Impoundments) Act 2022;]
C19
Subs. (1) construed during specified period (3.07.2017 to 31.12.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 13, S.I. No. 270 of 2017.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
Construction of section 2 (interpretation) of Act of 2000 during specified period
13. Section 2 of the Act of 2000 shall have effect in subsection (1) during the specified period—
(a) as if “, or section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “or 37N” in the definition of “permission”,
(b) as if “, or section 12 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “or 174” in the definition of “permission regulations”,
(c) as if the following were inserted after subparagraph (a) in the definition of “strategic infrastructure development”:
“(aa) any proposed development referred to in section 4 (other than development in respect of which an election has been exercised under subsection (4) of that section) of the Planning and Development (Housing) and Residential Tenancies Act 2016,”,
(d) as if the following definition were inserted after the definition of “structure”:
“ ‘student accommodation’—
(a) means a building or part thereof used or to be used to accommodate students whether or not provided by a relevant provider (within the meaning of Qualifications and Quality Assurance (Education and Training) Act 2012), and that is not for use—
(i) as permanent residential accommodation, or
(ii) subject to paragraph (b), as a hotel, hostel, apart-hotel or similar type accommodation,
and
(b) includes residential accommodation that is used as tourist or visitor accommodation but only if it is so used outside of academic term times;”,
(e) as if “or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 37N of this Act,” in subparagraph (b) of the definition of “unauthorised structure”, and
(f) as if “or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 37N of this Act,” in subparagraph (b) of the definition of “unauthorised use”.
Editorial Notes:
E6
Section as in force immediately before 1 September 2018 applied to the interpretation of S.I. No. 296 of 2018 as provided (21.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 3(2), in effect as per reg. 2(1).
E7
Previous affecting provision: definition of “permission regulations” substituted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 3; substituted (1.01.2022) as per F-note above.
E8
Previous affecting provision: definition of “manager” substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 4, S.I. No. 214 of 2014; deleted as per F-note above.
E9
Previous affecting provision: definition of “environmental impact statement” amended (31.10.2012) by European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012 (S.I. No. 419 of 2012), reg. 2(a)(ii); substituted by definition of “environmental impact assessment report” as per F-note above.
E10
Previous affecting provision: definition of “quarry” inserted (15.09.2011) by Environmental (Miscellaneous Provisions) Act 2011 (20/2011), s. 16, S.I. No. 474 of 2011; substituted as per F-note above.
E11
Previous affecting provision: definition of “Environmental Impact Assessment Directive” inserted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(c), S.I. No. 405 of 2010; amended (31.10.2012) by European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012 (S.I. No. 419 of 2012), reg. 2(a)(i); substituted as per F-note above.
E12
Previous affecting provision: definition of “DTA” inserted (4.01.2010) by Dublin Transport Authority Act 2008 (15/2008), s. 81, S.I. No. 574 of 2009; substituted as per F-note above.
E13
Previous affecting provision: definition of “regional authorities within the GDA” inserted (4.01.2010) by Dublin Transport Authority Act 2008 (15/2008), s. 81, S.I. No. 574 of 2009; substituted as per F-note above.
E14
Previous affecting provision: definition of “permission” inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(b) and (c), S.I. No. 684 of 2006; substituted as per F-note above.
E15
Previous affecting provisions: definitions of “unauthorised structure”, “unauthorised use” and “unauthorised works” amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(d), S.I. No. 684 of 2006; substituted as per F-note above.
10 O.J.No.L206, 22.7.1992, p. 7
11 O.J.No.L 176, 20.7.1993, p 29-30
12 O.J. No. C241, 29.8.1994, p 21
13 O.J.No.L305, 8.11.1997, p 42-65
14 O.J. No. 236, 23.9.2003, p. 33
15 O.J. No.L363, 20.12.2006, p 368-408 and O.J. L 059, 8.3.1996, p.63
16 O.J. No. L10, 14.1.1997 p. 13
17 O.J.No. L345, 31.12.2003 p.97-105
26 OJ No. L257, 28.8.2014, p. 135
3 OJ L26, 28.1.2012, p.1
4 OJ L24, 25.4.2014, p.1
9 O.J.No. 20, 26.1.2010 p 7-25
ART III
Control of Development
Annotations
Modifications (not altering text):
C39
Application of Part III restricted (7.02.2014) by Water Services (No. 2) Act 2013 (50/2013), s. 33(10), S.I. No. 76 of 2014.
Water services strategic plan.
33.— …
(10) An application for permission under Part III of the Act of 2000 shall not be refused by a planning authority or An Bord Pleanála solely on the ground that the development to which the application relates is not referred to in the water services strategic plan for the time being in force, provided that the planning authority or An Bord Pleanála, as the case may be, considers that the development will facilitate the achievement of the objectives of that plan.
…
C40
Application of Part III extended (31.12.2007) by Water Services Act 2007 (30/2007), s. 55(4) and 61(5), S.I. No. 846 of 2007.
Connection to a water supply.
55.— …
(4) Without prejudice to subsection (5), where a water services authority is also the relevant planning authority, the grant of a permission under Part III of the Act of 2000 in relation to a structure to which this section applies may, if it is indicated in the permission, include the agreement of the water services authority to the connection of that structure to its waterworks for the purposes of this section, subject to such conditions as the water services authority may require, consistent with its functions under this section.
…
Waste water connections.
61.— …
(5) Without prejudice to subsection (6), where a water services authority is also the relevant planning authority, the grant of a permission under Part III of the Act of 2000 in relation to a structure to which this section applies may, if it is indicated in the permission, include the agreement of the water services authority to the connection of that structure to its waste water works for the purposes of this section, subject to such conditions as the water services authority may require consistent with its powers under this section.
…
C41
Provision for consideration of waste management under Part made by Waste Management Act 1996 (10/1996), s. 22(10D) as inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 26(2)(d), S.I. No. 393 of 2004.
Waste management plans.
22.— …
(10D) (a) In performing their functions under the Planning and Development Acts 2000 to 2002, and, in particular, their functions under Part III and sections 175 and 179 of the Planning and Development Act 2000, planning authorities and An Bord Pleanála shall ensure that such measures as are reasonably necessary are taken to secure appropriate provision for the management of waste (and, in particular, recyclable materials) within developments, including the provision of facilities for the storage, separation and collection of such waste (and, in particular, such materials) and the preparation by the appropriate persons of suitable plans for the operation of such facilities.
(b) The Minister may issue guidelines as to the steps that may be taken to comply with this subsection.
C42
Application of Part restricted by Environmental Protection Agency Act 1992 (7/1992), s. 86(11) as substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004.
Conditions attached to a licence.
86.— …
(8) Where a permission under section 34 of the Act of 2000 has been granted or an application has been made for such permission in relation to development comprising or for the purposes of an activity, the Agency—
(a) may consult with the planning authority in whose functional area the activity is or will be situate in relation to any development which is necessary to give effect to any conditions to be attached to a licence or revised licence and which the Agency considers is not the subject of a permission or an application for a permission under section 34 of the Act of 2000, and
(b) may attach to the licence or revised licence such conditions related to the above-mentioned development as may be specified by the planning authority for the purposes of the proper planning and sustainable development of the area or stricter conditions as the Agency may consider necessary for the prevention, limitation, elimination, abatement or reduction of emissions.
…
(11) Notwithstanding the requirements of Part III of the Act of 2000, works consisting of, or incidental to, the carrying out of development referred to in paragraph (a) of subsection (8) in respect of which conditions have been attached under paragraph (b) of that subsection to the licence or revised licence concerned shall be exempted development within the meaning, and for the purposes, of the Act of 2000.
C43
Provision for consideration of development plan under Part made (8.07.2003) by Digital Hub Development Agency Act 2003 (23/2003), s. 9(5), commenced on enactment.
Development plan.
9.— …
(5) Dublin City Council and An Bord Pleanála shall, in deciding any application or in determining any application on appeal for permission under Part III of the Planning and Development Act 2000 in respect of development in the digital hub area, consider anything relevant contained in the development plan.
…
Editorial Notes:
E150
Application of Part III restricted by Water Services Act 2007 (30/2007), s. 36(20), not commenced; repealed (1.01.2014) by Water Services (No. 2) Act 2013 (50/2013), s. 4(1), S.I. No. 575 of 2013.
General obligation to obtain permission.
32.—(1) Subject to the other provisions of this Act, permission shall be required under this Part—
(a) in respect of any development of land, not being exempted development, and
(b) in the case of development which is unauthorised, for the retention of that unauthorised development.
(2) A person shall not carry out any development in respect of which permission is required by subsection (1), except under and in accordance with a permission granted under this Part.
F306[
Opinion as to flexibility with regard to application for permission.
32I. …]
Annotations:
Amendments:
F315
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C46
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F315[32I. (1) The planning authority shall, within the period of 4 weeks beginning on the date on which the meeting convened under section 32H(5) takes place, consider—
(a) the information included in the request for the meeting under section 32H, and
(b) any other relevant information that is made available at the meeting,
and determine if it is satisfied that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed certain details of the application.
(2) Where the planning authority determines that it is satisfied in accordance with subsection (1) it shall provide an opinion to that effect to the prospective applicant.
(3) Where the planning authority determines that it is not satisfied in accordance with subsection (1) it shall notify the prospective applicant to that effect.
(4) An opinion under subsection (2) shall specify—
(a) the details, or groups of details, of the proposed development as proposed by the prospective applicant that may be confirmed after the proposed application has been made and decided,
(b) the circumstances relating to the proposed development that indicate that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed the details referred to in paragraph (a), and
(c) that, in respect of each detail, or group of details, referred to in paragraph (a), the proposed application shall, in addition to any other requirement imposed by or under this Act, be accompanied by the information referred to in section 32H(2)(f).
(5) An opinion issued by a planning authority under subsection (2) shall only be made public when a planning application in respect of the proposed development is made in accordance with section 34.
(6) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient for the purposes of the planning authority providing an opinion under subsection (2), including the form of the opinion.
(7) Where, on the expiry of the period specified in subsection (1), the planning authority has failed to provide an opinion or notification, the planning authority shall proceed to do so as soon as practicable, notwithstanding that the period has expired, and provide the prospective applicant with a written explanation why it failed to provide the opinion or notification in the specified period.]
F316[
Procedure without prejudice to performance by the planning authority of other functions.
32J. …]
Annotations:
Amendments:
F316
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C47
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F316[32J. Neither the taking place of a meeting under section 32H nor the provision of an opinion or notification under section 32I shall prejudice the performance by the planning authority of its functions under this Act or any regulations under this Act or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.]
F317[
Effect of steps not being completed within the time period.
32K. …]
Annotations:
Amendments:
F317
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C48
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F317[32K. A person shall not question the validity of any steps taken by a planning authority by reason only that the procedures set out in sections 32H and 32I, were not completed within the time referred to in the sections concerned.]
F318[
Offence of taking payment, etc. in connection with section 32H procedure.
32L. …]
Annotations:
Amendments:
F318
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C49
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F318[32L. A member or official of a planning authority who takes or seeks any favour, benefit or payment, direct or indirect (on his or her own behalf or on behalf of any other person or body), in connection with the provision of an opinion or notification under section 32I commits an offence.]
Regulations regarding applications for permission.
33.—(1) The Minister shall by regulations provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for permission for the development of land.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for the following—
(a) requiring the submission of information in respect of applications for permission for the development of land;
(b) requiring any applicants to publish any specified notices with respect to their applications;
(c) enabling persons to make submissions or observations on payment of the prescribed fee and within a prescribed period;
F319[(ca) providing for the waiving or reduction of a fee to which paragraph (c) would relate, or the payment of a different fee, in respect of submissions or observations made by a person in his or her capacity as a member of a local authority;]
(d) requiring planning authorities to acknowledge in writing the receipt of submissions or observations;
(e) requiring any applicants to furnish to any specified persons any specified information with respect to their applications;
(f) requiring planning authorities to—
(i) (I) notify prescribed authorities of such proposed development or classes of development as may be prescribed, or
(II) consult with them in respect thereof,
and
(ii) give to them such documents, particulars, plans or other information in respect thereof as may be prescribed;
(g) requiring any applicants to submit any further information with respect to their applications (including any information as to any estate or interest in or right over land) or information regarding any effect on the environment which the development may have;
F320[(ga) enabling planning authorities to request applicants to submit further information with respect to their applications, for the purposes of paragraph (g), and providing for, in respect of different classes or descriptions of development, the information or type of information which may be requested and the number of requests that may be made;]
(h) enabling planning authorities to invite an applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the application relates and, in case the plans, drawings or particulars are submitted to a planning authority in response to such an invitation, enabling the authority in deciding the application to grant a permission for the relevant development as modified by all or any of the plans, drawings or particulars;
(i) requiring the production of any evidence to verify any particulars of information given by any applicants;
(j) requiring planning authorities to furnish to the Minister and to any other specified persons any specified information with respect to applications and the manner in which they have been dealt with;
(k) requiring planning authorities to publish or give notice of their decisions in respect of applications for permission, including the giving of notice thereof to prescribed bodies and to persons who made submissions or observations in respect of such applications;
F319[(ka) facilitating the making and processing by electronic means of—
(i) planning applications, appeals, referrals, applications for approval, submissions and consents under this Act, and
(ii) the payment of fees, the issuing of decisions and setting out of requirements to which subparagraph (i) relates;
(kb) requiring the inputting of data by planning authorities into such databases or national planning systems as may be prescribed by the Minister;]
(l) requiring an applicant to submit specified information to the planning authority with respect to development, or any class of development, carried out by a person to whom section 35(7) applies pursuant to a permission granted to the applicant or to any other person under this Part or under Part IV of the Act of 1963.
(3) (a) Regulations under this section may, for the purposes of securing the attainment of an objective included in a development plan pursuant to section 10(2)(m), require any applicant for permission to provide the planning authority with such information, in respect of development (including development of a particular class) that the applicant proposes to carry out in a Gaeltacht area, as it may specify.
(b) A requirement to which paragraph (a) applies may relate to development belonging to a particular class.
(c) Before making regulations containing a requirement to which paragraph (a) applies the Minister shall consult with the Minister for Arts, Heritage, Gaeltacht and the Islands.
(4) Regulations under this section may make additional or separate provisions in regard to applications for outline permission within the meaning of section 36.
F321[(5) Regulations under this section may make different provision with respect to applications for permission for development made by the Central Bank of Ireland in cases where the disclosure of information in relation to the application concerned might prejudice the security, externally or internally, of the development or the land concerned or facilitate any unauthorised access to or from the land by any person, and such regulations may make provision modifying the operation of section 38 in relation to applications in those cases. ]
Annotations
Amendments:
F319
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 22(a), (b), S.I. No. 436 of 2018.
F320
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 4, S.I. No. 715 of 2021.
F321
Inserted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 90(a), S.I. No. 287 of 2013.
Modifications (not altering text):
C50
Functions under subs. (3)(c) and regulations transferred (1.06.2011) by Irish Language, Gaeltacht and the Islands (Transfer of Departmental Administration and Ministerial Functions) (No. 2) Order 2011 (S.I. No. 216 of 2011), regs. 2 and 3.
2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Tourism, Culture and Sport.
(2) References to the Department of Community, Equality and Gaeltacht Affairs contained in any Act or any instrument made thereunder 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 Tourism, Culture and Sport.
3. (1) The functions vested in the Minister for Community, Equality and Gaeltacht Affairs under—
(a) section 33 (3)(c) of the Planning and Development Act 2000 (No. 30 of 2000), and
(b) the Planning and Development Regulations 2001 (S.I. No. 600 of 2001),
are transferred to the Minister for Tourism, Culture and Sport.
Editorial Notes:
E153
Power pursuant to section exercsied (9.11.2022) by Planning and Development (Amendment) (No. 2) Regulations 2022 (S.I. No. 565 of 2022).
E154
Power pursuant to section exercsied (17.12.2021) by Planning and Development (Large-scale Residential Development) Regulations 2021 (S.I. No. 716 of 2021), in effect as per reg. 2.
E155
Power pursuant to section exercised (4.11.2021) by Planning and Development (Amendment) (No. 3) Regulations 2021 (S.I. No. 588 of 2021).
E156
Power pursuant to section exercised (15.01.2021) by Planning and Development (Amendment) Regulations 2021 (S.I. No. 9 of 2021).
E157
Power pursuant to section exercised (16.11.2018) by Planning and Development (Fees) Regulations 2018 (S.I. No. 501 of 2018).
E158
Power pursuant to section exercised (10.09.2015) by Planning and Development (Amendment) (No. 3) Regulations 2015 (S.I. No. 387 of 2015).
E159
Power pursuant to section exercised (16.07.2015) by Planning and Development (Amendment) (No. 2) Regulations 2015 (S.I. No. 310 of 2015), in effect as per reg. 2.
E160
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
E161
Power pursuant to section exercised (21.09.2011) by Planning and Development (Amendment) (No. 3) Regulations 2011 (S.I. No. 476 of 2011).
E162
Power pursuant to section exercised (31.03.2007) by Planning and Development (No. 2) Regulations 2007 (S.I. No. 135 of 2007).
E163
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03 2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
E164
Power pursuant to section exercised (11.03.2002) by Planning and Development Regulations 2002 (S.I. No. 70 of 2002).
E165
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Permission for development.
34.—(1) Where—
(a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) all requirements of the regulations are complied with,
the authority may decide to grant the permission subject to or without conditions, or to refuse it.
F322[(1A) Where an application to a planning authority is required to have been accompanied by an F323[environmental impact assessment report]:
(a) The planning authority shall cause to be published in one or more newspapers circulated in the area and/or by electronic means, a notice informing the public of such a decision of the planning authority.
(b) The notice shall state that the applicant and any person who made submissions or observations in writing to the planning authority in relation to the planning application in accordance with section 37(1) may appeal such a decision to the Board.
(c) The notice shall further state that a person may question the validity of any decision of the planning authority by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50.
(d) The notice shall further state that a person may question the validity of any decision on an appeal by the Board by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50.
(e) The notice shall identify where practical information on the appeal and review mechanisms can be found.]
F324[(1B) Where a planning authority receives an application for permission to which section 32A(1) applies it shall notify the elected members of the planning authority of the making of the application, of where the application is available for inspection, and of such other information as may be prescribed.]
(2) (a) When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—
(i) the provisions of the development plan,
F325[(ia) any guidelines issued by the Minister under section 28,]
(ii) the provisions of any special amenity area order relating to the area,
(iii) any European site or other area prescribed for the purposes of section 10(2)(c),
(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,
(v) the matters referred to in subsection (4), F326[…]
F327[(va) previous developments by the applicant which have not been satisfactorily completed,
(vb) previous convictions against the applicant for non-compliance with this Act, the Building Control Act 2007 or the Fire Services Act 1981, and]
(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder.
F325[(aa) When making its decision in relation to an application under this section, the planning authority shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28.]
(b) In considering its decision in accordance with paragraph (a), a planning authority shall consult with any other planning authority where it considers that a particular decision by it may have a significant effect on the area of that authority, and the authority shall have regard to the views of that other authority and, without prejudice to the foregoing, it shall have regard to the effect a particular decision by it may have on any area outside its area (including areas outside the State).
F325[(ba) Where specific planning policy requirements of guidelines referred to in subsection (2)(aa) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.]
(c) F328[Subject to section 99F of the Environmental Protection Agency Act 1992,] and section 54 (as amended by section 257 of this Act) of the Waste Management Act, 1996, where an application under this section relates to development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, a planning authority shall take into consideration that the control of emissions arising from the activity is a function of the Environmental Protection Agency.
F325[(d) In this subsection “specific planning policy requirements” means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.]
(3) A planning authority shall, when considering an application for permission under this section, have regard to—
(a) in addition to the application itself, any information relating to the application furnished to it by the applicant in accordance with the permission regulations,
(b) any written submissions or observations concerning the proposed development made to it in accordance with the permission regulations by persons or bodies other than F329[the applicant, and]
F330[(c) where an application for permission relates to a residential development comprising 10 or more houses—
(i) any information available to the planning authority, or furnished to it by the applicant, concerning implementation by the applicant of any housing development in the previous 5 years, and
(ii) an assessment by the planning authority of the likelihood of the proposed development being implemented within the appropriate period sought, being the appropriate period within the meaning provided for by section 40(3).]
F325[(3A) In determining an application for permission that relates to an existing planning permission for a residential multi-unit development (within the meaning of section 1 of the Multi-Unit Development Act 2011) and where the purpose of the application for permission is to take account of specific planning policy requirements (within the meaning given by subsection (2)(d)) of new or revised guidelines issued by the Minister under section 28 with regard to the previously permitted development, the planning authority concerned or the Board (as the case may be) shall, notwithstanding section 34(2)(a), be restricted in its determination of the application to considering the modifications proposed by the applicant.
(3B) Notwithstanding section 37, no appeal shall be made to the Board in respect of the determination by the planning authority concerned of an application to which subsection (3A) relates unless it would relate to a materially significant change to the approved external appearance of the proposed development.]
F324[(3C) In determining an application for permission that relates to a development in respect of a part of which permission has previously been granted—
(a) under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016, or
(b) on foot of an application in accordance with section 32A, the planning authority concerned shall, notwithstanding section 34(2)(a), be restricted in its determination of the application, other than in respect of any assessment of the effects of the proposed development on the environment, to considering the modifications proposed by the applicant to the previously permitted development and for the purposes of determining such an application the reference in subsection (6) to “the development concerned” shall be read as a reference to “the modifications to the previously permitted development”.]
(4) Conditions under subsection (1) may, without prejudice to the generality of that subsection, include all or any of the following—
F331[(a) conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant if the imposition of such conditions appears to the planning authority—
(i) to be expedient for the purposes of or in connection with the development authorised by the permission, or
(ii) to be appropriate, where any aspect or feature of that adjoining, abutting or adjacent land constitutes an amenity for the public or a section of the public, for the purposes of conserving that amenity for the public or that section of the public (and the effect of the imposition of conditions for that purpose would not be to burden unduly the person in whose favour the permission operates);]
(b) conditions for requiring the carrying out of works (including the provision of facilities) which the planning authority considers are required for the purposes of the development authorised by the permission;
(c) conditions for requiring the taking of measures to reduce or prevent—
(i) the emission of any noise or vibration from any structure or site comprised in the development authorised by the permission which might give reasonable cause for annoyance either to persons in any premises in the neighbourhood of the development or to persons lawfully using any public place in that neighbourhood, or
(ii) the intrusion of any noise or vibration which might give reasonable cause for annoyance to any person lawfully occupying any such structure or site;
(d) conditions for requiring provision of open spaces;
(e) conditions for requiring the planting, maintenance and replacement of trees, shrubs or other plants or the landscaping of structures or other land;
(f) conditions for requiring the satisfactory completion within a specified period, not being less than 2 years from the commencement of any works, of the proposed development (including any roads, open spaces, car parks, sewers, watermains or drains or other public facilities), where the development includes the construction of 2 or more houses;
(g) conditions for requiring F329[the giving and maintaining of adequate security] for satisfactory completion of the proposed development;
(h) conditions for determining the sequence and timing in which and the time at which works shall be carried out;
(i) conditions for the maintenance or management of the proposed development (including the establishment of a company or the appointment of a person or body of persons to carry out such maintenance or management);
(j) conditions for the maintenance, until taken in charge by the local authority concerned, of roads, open spaces, car parks, sewers, watermains or drains and other public facilities or, where there is an agreement with the local authority in relation to such maintenance, conditions for maintenance in accordance with the agreement;
(k) conditions for requiring the provision of such facilities for the collection or storage of recyclable materials for the purposes of the proposed development;
(l) conditions for requiring construction and demolition waste to be recovered or disposed of in such a manner and to such extent as may be specified by the planning authority;
(m) conditions for requiring the provision of roads, including traffic calming measures, open spaces, car parks, sewers, watermains or drains, facilities for the collection or storage of recyclable materials and other public facilities in excess of the immediate needs of the proposed development, subject to the local authority paying for the cost of the additional works and taking them in charge or otherwise entering into an agreement with the applicant with respect to the provision of those public facilities;
(n) conditions for requiring the removal of any structures authorised by the permission, or the discontinuance of any use of the land so authorised, at the expiration of a specified period, and the carrying out of any works required for the re-instatement of land at the expiration of that period;
(o) conditions in relation to appropriate naming and numbering of, and the provision of appropriate signage for, the proposed development;
(p) conditions for requiring, in any case in which the development authorised by the permission would remove or alter any protected structure or any element of a protected structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest—
(i) the preservation by a written and visual record (either measured architectural drawings or colour photographs and/or audio-visual aids as considered appropriate) of that structure or element before the development authorised by the permission takes place, and
(ii) where appropriate, the architectural salvaging of any element, or the re-instatement of any element in a manner specified by the authority;
(q) conditions for regulating the hours and days during which a business premises may operate.
F332[(5) The conditions under subsection (1) may provide that points of detail relating to a grant of permission be agreed between the planning authority and the person carrying out the development and, accordingly—
(a) where for that purpose that person has submitted to the planning authority concerned such points of detail, then that authority shall, within 8 weeks of those points being so submitted, or such longer period as may be agreed between them in writing, either—
(i) reach agreement with that person on those points, or
(ii) where that authority and that person cannot so agree on those points, that authority may—
(I) advise that person accordingly in writing, or
(II) refer the matter to the Board for its determination,
and, where clause (I) applies, that person may, within 4 weeks of being so advised, refer the matter to the Board for its determination,
or
(b) where none of the events referred to in subparagraph (i) or in clause (I) or (II) of subparagraph (ii) occur within those 8 weeks or such longer period as may have been so agreed, then that authority shall be deemed to have agreed to the points of detail as so submitted.]
(6) (a) In a case in which the development F333[concerned would contravene materially the development plan or local area plan], a planning authority may, notwithstanding any other provision of this Act, decide to grant permission under this section, provided that the following requirements are complied with before the decision is made, namely—
(i) notice in the prescribed form of the intention of the planning authority to consider deciding to grant the permission shall be published in at least one daily newspaper circulating in its area and the notice shall specifically state which objective of the development plan F327[or local area plan, as the case may be,] would be materially contravened by granting this permission,
F333[(ii) copies of the notice shall be given to each of the following—
(I) the applicant,
F327[(IA) the regional assembly for the area in which the planning authority is situated,]
(II) a prescribed body which has been notified of the application by the planning authority, and
(III) any person who has made a submission or observation in writing in relation to the development to which the application relates,]
(iii) any submission or observation as regards the making of a decision to grant permission and which is received by the planning authority not later than 4 weeks after the first publication of the notice shall be duly considered by the F333[authority]
F334[(iiia) not later than 6 weeks from the publication of the notice under subparagraph (i), the chief executive shall prepare a report for the members of the planning authority—
(I) stating the main reasons and considerations on which the proposal to grant permission is based,
(II) summarising the issues raised in any submissions or observations in accordance with subparagraph (iii), and
(III) advising the members of his or her opinion regarding the compliance or otherwise of the proposed development with any relevant Ministerial guidelines under section 28 or any relevant policies or objectives of the Government or Minister of the Government or with any regional spatial and economic strategy,
and the report shall be considered by the members before a resolution is passed under subparagraph (iv), and
(iv) a resolution shall be passed by the planning authority approving the proposal of the chief executive to grant permission.]
(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) that the number of the members of the planning authority voting in favour of the resolution is not less than three-quarters of the total number of the members of the planning authority or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient, and the requirement of this paragraph is in addition to and not in substitution for any other requirement applying in relation to such a resolution.
F335[(ba) Where a resolution referred to in paragraph (a) has been passed by a planning authority in accordance with paragraph (b), the planning authority shall—
(i) send to the regional assembly for the area and the Office of the Planning Regulator a copy of the notice under paragraph (a) that relates to the resolution, and
(ii) at the same time, inform the regional assembly for the area and the Office of the Planning Regulator in writing that the resolution was passed.]
(c) F336[…]
(d) F336[…]
(7) F336[…]
(8) (a) Subject to paragraphs (b), (c), (d) and (e), where—
(i) an application is made to a planning authority in accordance with the permission regulations for permission under this section, and
(ii) any requirements of those regulations relating to the application are complied with,
a planning authority shall make its decision on the application within the period of 8 weeks beginning on the date of receipt by the planning authority of the application.
F337[(b) Where a planning authority, within 8 weeks of the receipt of a planning application, serves notice in accordance with the permission regulations requiring the applicant to give to the authority further information or to produce evidence in respect of the application, the authority shall make its decision on the application as follows:
(i) within 4 weeks of the notice being complied with, or
(ii) F338[if, within the period specified in subparagraph (i), in relation to further information] given or evidence produced in compliance with the notice, the planning authority—
(I) considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and
(II) gives notice accordingly to the applicant,
within 4 weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority.
(c) Where, in the case of a planning application accompanied by an F339[environmental impact assessment report] or a Natura impact statement, a planning authority serves a notice referred to in paragraph (b), the authority shall make its decision as follows:
(i) within 8 weeks of the notice being complied with, or
(ii) F338[if, within the period specified in subparagraph (i), in relation to further information] given or evidence produced in compliance with the notice, the planning authority—
(I) considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and
(II) gives notice accordingly to the applicant,
within 8 weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority,]
F340[(ca) F341[Where an environmental impact assessment report] is submitted to a planning authority under section 172(1C), or where a Natura impact statement is submitted to a planning authority under section 177T (5), the planning authority shall make its decision on the application as follows—
(i) within 8 weeks commencing on the date on which the F342[environmental impact assessment report] or Natura impact statement, as the case may be, and a copy of the relevant public notice required in accordance with regulations under this Act, is received by the planning authority, or
(ii) where a planning authority, within 8 weeks of the receipt of an F343[environmental impact assessment report submitted] under section 172(1C) or a Natura impact statement under section 177T(5), serves notice in accordance with regulations under this Act requiring the applicant to give to the authority further information in relation F344[to the environmental impact assessment report] or Natura impact statement, as the case may be—
(I) F345[within 8 weeks, in the case of further information in relation to the environmental impact assessment report, and within 4 weeks, in the case of further information in relation to the Natura impact statement,] of the notice being complied with, or
(II) F338[if, within the period specified in clause (I), in relation to further information] given, the planning authority considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with regulations under this Act, and gives notice accordingly to the applicant, F346[within 8 weeks, in the case of such further information given in relation to the environmental impact assessment report, and within 4 weeks, in the case of such further information given in relation to the Natura impact statement,] beginning on the day on which notice of that publication is given by the applicant to the planning authority.]
(d) Where a notice referred to in subsection (6) is published in relation to the application, the authority shall make its decision within the period of 8 weeks beginning on the day on which the notice is first published.
(e) Where, in the case of an application for permission for development that—
(i) would be likely to increase the risk of a major accident, or
(ii) is of such a nature as to be likely, if a major accident were to occur, and, having regard to all the circumstances, to cause there to be serious consequences,
a planning authority consults, in accordance with the permission regulations, with a prescribed authority for the purpose of obtaining technical advice regarding such risk or consequences, the authority shall make a decision in relation to the application within 4 weeks beginning on the day on which the technical advice is received.
F347[(f) (i) Where a planning authority has failed to make a decision in relation to an application within the period specified in paragraph (a), (b), (c), (d) or (e) as appropriate (referred to in this paragraph as the “first period”) and becomes aware, whether through notification by the applicant or otherwise, that it has so failed, the authority shall proceed to make the decision notwithstanding that the first period has expired.
(ii) Where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant.
(iii) Where a planning authority fails to make a decision within a period of 12 weeks after the expiry of the first period a decision (referred to in this paragraph as the “deemed decision”) of the planning authority to grant the permission shall be regarded as having been given on the last day of that period of 12 weeks.
(iv) Any person, who has made submissions or observations in writing in relation to the planning application to the planning authority, may at any time within the period of 4 weeks after the expiry of the period of 12 weeks referred to in subparagraph (iii), appeal the deemed decision.
(v) Subparagraphs (i) to (iv) shall not apply where there is a requirement under Part X or Part XAB to carry out an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment, in respect of the development relating to which the authority has failed to make a decision.
(vi) Where the planning authority has failed to make a decision in relation to development where an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment is required within the first period and becomes aware, whether through notification by the applicant or otherwise, that it has so failed—
(I) the authority shall proceed to make the decision notwithstanding that the first period has expired,
(II) where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant,
(III) provided that no notice under paragraph (b) or (c) was served on the applicant prior to the expiry of the first period, where a planning authority proceeds to make a decision under clause (I) in relation to an application, it may serve notice on the applicant, requiring the applicant to give to the authority further information or to produce evidence in respect of the application under paragraph (b) or (c), and paragraph (b) or (c) shall apply to such notice subject to any necessary modifications,
(IV) subject to service of a notice under paragraph (b) or (c) in accordance with clause (III), where a planning authority fails to make a decision before the expiry of the period of 12 weeks beginning on the day immediately after the day on which the first period expires, the authority shall, subject to clause (V), pay the appropriate sum to the applicant, and shall pay a further such sum to the applicant where it fails to make a decision before the expiry of each subsequent period of 12 weeks beginning immediately after the preceding 12 week period,
(V) not more than 5 payments of the appropriate sum shall be made by a planning authority to an applicant in respect of the failure by the authority to make a decision in relation to an application,
(VI) where a planning authority makes a decision in relation to an application more than one year after the expiration of the first period the authority, before making the decision—
(A) notwithstanding that notice has been previously published in relation to the application, shall require the applicant to publish additional such notice concerning the planning application in accordance with the permission regulations (and the planning authority shall refund the costs of so publishing to the applicant),
(B) notwithstanding that notice of the application has previously been given to prescribed bodies, shall give additional such notice in accordance with the permission regulations, and
(C) notwithstanding anything contained in paragraph (b) or (c), or that the authority has previously been given further information or evidence under those paragraphs may require the applicant to give to the authority further information or to produce evidence in respect of the application as the authority requires and paragraph (b) or (c), as appropriate, shall apply to such additional request subject to any necessary modifications,
and the planning authority shall consider any submissions made in accordance with the Regulations following on such additional notices, or additional further information or evidence produced under this clause.
(vii) Any payment or refund due to be paid under this paragraph shall be paid as soon as may be and in any event not later than 4 weeks after it becomes due.
(viii) In this paragraph, “appropriate sum” means a sum which is equal to the lesser amount of 3 times the prescribed fee paid by the applicant to the planning authority in respect of his or her application for permission or €10,000.]
(9) Where, within the period of 8 weeks beginning on the date of receipt by the planning authority of the application, the applicant for a permission under this section gives to the planning authority in writing his or her consent to the extension of the period for making a decision under subsection (8), the period for making the decision shall be extended for the period consented to by the applicant.
(10) (a) F348[Subject to paragraph (c) and without prejudice to section 172(1I), a decision] given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection.
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in—
(i) the reports on a planning application to the F349[chief executive] (or such other person delegated to make the decision) in the case of a planning authority, or
(ii) a report of a person assigned to report on an appeal on behalf of the Board,
a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission.
F350[(c) Where, in the case of an application for planning permission accompanied by an environmental impact assessment report, a decision by a planning authority under this section or by the Board under section 37, as the case may be—
(i) to impose a condition (being an environmental condition which arises from the consideration of the environmental impact assessment report) in relation to the grant of permission is materially different, in relation to the terms of such condition, from the recommendation in—
(I) the reports on a planning application to the chief executive (or such other person delegated to make the decision) in the case of a planning authority, or
(II) a report of a person assigned to report on an appeal on behalf of the Board,
as the case may be, a statement under paragraph (a) shall indicate the main reasons for not accepting, or for varying, as the case may be, the recommendation in the reports or report in relation to such condition referred to in clause (I) or (II), as the case may be,
(ii) to grant, subject to or without conditions, permission, such permission shall include or refer to a statement that the planning authority or the Board, as the case may be, is satisfied that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision, and
(iii) shall include a summary of the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.]
(11) (a) Where the planning authority decides under this section to grant a permission—
(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,
(ii) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals—
(I) it is withdrawn, or
(II) it is dismissed by the Board pursuant to section 133 or 138, or
(III) in relation to it a direction is given to the authority by the Board pursuant to section 139, and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.
(b) Where the Board decides on appeal under section 37 to grant a permission, it shall make the grant as soon as may be after the decision.
F333[(12) A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced the application would have required that one or more than one of the following was carried out—
(a) an environmental impact assessment,
(b) a determination as to whether an environmental impact assessment is required, or
(c) an appropriate assessment.
(12A) For the purposes of subsection (12), if an application for permission had been made in respect of the following development before it was commenced, the application shall be deemed not to have required a determination referred to at subsection (12)(b):
(a) development within the curtilage of a dwelling house, for any purpose incidental to the enjoyment of the dwelling house as a dwelling house;
(b) modifications to the exterior of a building.
(12B) Where a planning authority refuses to consider an application for permission under subsection (12) it shall return the application to the applicant, together with any fee received from the applicant in respect of the application, and shall give reasons for its decision to the applicant.
(12C) Subject to subsections (12) and (12A), an application for development of land in accordance with the permission regulations may be made for the retention of unauthorised development, and this section shall apply to such an application, subject to any necessary modifications.]
(13) A person shall not be entitled solely by reason of a permission under this section to carry out any development.
Annotations
Amendments:
F322
Inserted (13.07.2010) by European Communities (Public Participation) Regulations 2010 (S.I. No. 352 of 2010), reg. 10(a).
F323
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 2, in effect as per reg. 2(1).
F324
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 5(a), (b), S.I. No. 715 of 2021.
F325
Inserted (29.12.2015) by Planning and Development (Amendment) Act 2015 (61/2015), s. 3(a)-(e), commenced on enactment.
F326
Deleted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(1), S.I. No. 436 of 2018.
F327
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(1), (5)(a), (b), S.I. No. 436 of 2018.
F328
Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 61, S.I. No. 393 of 2004.
F329
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(2), (3), S.I. No. 436 of 2018.
F330
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(2), S.I. No. 436 of 2018.
F331
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 8(1), S.I. No. 525 of 2006.
F332
Substituted (17.12.2021) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(4), S.I. No. 714 of 2021.
F333
Substituted (23.03.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 23(a)(i)-(iii) and (c), S.I. No. 132 of 2011.
F334
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 72, S.I. No. 214 of 2014.
F335
Inserted (3.04.2019) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(5)(c), S.I. No. 133 of 2019, art. 2(c).
F336
Deleted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 refs. 73, 74, S.I. No. 214 of 2014.
F337
Substituted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 23(b)(i), S.I. No. 475 of 2011.
F338
Substituted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 5(c), S.I. No. 715 of 2021.
F339
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table item ref. no. 3, in effect as per reg. 2(1).
F340
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 5.
F341
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 4, in effect as per reg. 2(1).
F342
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 5, in effect as per reg. 2(1).
F343
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 6, in effect as per reg. 2(1).
F344
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 7, in effect as per reg. 2(1).
F345
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(a)(i), in effect as per reg. 2(1).
F346
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(a)(ii), in effect as per reg. 2(1).
F347
Substituted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 23(b)(ii), S.I. No. 475 of 2011.
F348
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(b)(i), in effect as per reg. 2(1).
F349
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(6), S.I. No. 436 of 2018.
F350
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(b)(ii), in effect as per reg. 2(1).
F351
Inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(c), not commenced as of date of revision.
F352
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(a), not commenced as of date of revision.
F353
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(b), not commenced as of date of revision, subject to transitional provision in s. 41(8), not commenced as of date of revision.
F354
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(c), not commenced as of date of revision, subject to transitional provision in s. 41(8), not commenced as of date of revision.
Modifications (not altering text):
C51
Prospective affecting provision: subs. (2)(ca) inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(c), not commenced as of date of revision.
F351[(ca) Where an application under this section relates to development which comprises or is for the purposes of an activity for which an abstraction licence is required, a planning authority shall take into consideration that the control of abstractions is a function of the Environmental Protection Agency.]
C52
Prospective affecting provision: subs. (4A) inserted, subs. (12) substituted and subs. (12A) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(a)-(c), not commenced as of date of revision.
F352[(4A) Notwithstanding subsection (1), where a planning authority grants permission for a development on foot of an application accompanied by an opinion provided by the planning authority under section 32I(2) the permission shall include a condition in respect of any detail of the development that was not confirmed at the time of the application requiring—
(a) the actual detail of the development to fall within specified options, parameters or a combination of options and parameters, and
(b) the applicant to notify the planning authority in writing, by such date prior to the commencement of the development, or prior to the commencement of the part of the development to which the detail relates, as the Minister may prescribe, of the actual detail of the development.]
…
F353[(12) A planning authority shall refuse to consider an application to retain unauthorised development of land where it decides that either or both of the following was required or is required in respect of the development:
(a) an environmental impact assessment;
(b) an appropriate assessment.]
(12A) For the purposes of subsection (12), F354[an application in respect of the following development shall be deemed not to have required, and not to require, a determination as to whether an environmental impact assessment is required]:
…
C53
Application of section restricted (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 10(5)(a), S.I. No. 270 of 2017.
Supplemental provisions to section 9
10. …
(5)(a) No permission under section 34 of the Act of 2000 shall be required for any development in respect of which approval has been granted under section 9.
…
C54
Certain functions transferred to Cork City Council as a result of the Cork City and Council areas boundary alteration (31.01.2019) by Local Government Act 2019 (1/2019), s. 31, S.I. No. 20 of 2019.
Planning applications and development contribution schemes
31. (1) For the purposes of the Act of 2000 or any instrument under that Act and subject to subsection (2), the county council shall, after the transfer day, be the planning authority in relation to any planning application made before the transfer day in respect of development or proposed development in the relevant area.
(2) (a) Subject to paragraph (b), the functions of a planning authority under the Act of 2000 shall, as respects—
(i) a decision under section 34 of that Act, or
(ii) a determination under section 37 of that Act,
made before the transfer day in relation to development or proposed development in the relevant area, be performable from that day by the city council.
(3) Any contribution—
(a) paid before the transfer day in accordance with section 49 of the Act of 2000 for the purpose of any public infrastructure service or project in the relevant area, and
(b) vested in the city council under Part 2,
shall be expended by the city council for that purpose.
(4) Any development contribution scheme under section 48 of the Act of 2000 or supplementary development contribution scheme under section 49 of that Act made by the city council shall, from the transfer day, apply to the relevant area as it applies to the rest of the functional area of the city council.
…
C55
Effect of grant of permission under section clarified (24.12.2015) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), section 28(2), commenced on enactment.
Applications under section 34 of Act of 2000
28. (1) Where a development to which a certificate relates was substantially commenced or at a more advanced stage of completion on the dissolution day, but was not completed on that date, an application may be made to the Council for permission under section 34 of the Act of 2000 for so much of the development as was not completed on that date.
(2) Where a permission is granted under section 34 of the Act of 2000 in respect of a development in relation to which an application was made under subsection (1), without prejudice to anything validly done in accordance with the certificate concerned prior to the grant of permission, that grant of permission shall have effect, and the certificate shall cease to have effect, in respect of so much of the development as was not completed on the dissolution day.
C56
Construction of reference to ‘planning authority’ under subs. (4)(m) extended (31.12.2007) by Water Services Act 2007 (30/2007), s. 55(5)(b), S.I. No. 846 of 2007.
Connection to a water supply.
55. — …
(5) …
(b) For the purposes of the application of section 34(4)(m) of the Act of 2000 to this subsection, a reference to a planning authority shall be deemed to include a reference to a water services authority.
…
C57
Construction of reference to ‘planning authority’ under subs. (4)(m) extended (31.12.2007) by Water Services Act 2007 (30/2007), s. 61(6)(b), S.I. No. 846 of 2007.
Waste water connections.
61. — …
(6) …
(b) For the purposes of the application of section 34(4)(m) of the Act of 2000 to this subsection, a reference to a planning authority shall be deemed to include a reference to a water services authority.
…
C58
Application of section restricted and matters to be considered provided (27.09.2007) by Waste Water Discharge (Authorisation) Regulations 2007 (S.I. No. 684 of 2007), regs. 41(1) and 43(1).
Limitation of Act of 2000
41. (1) Subject to Regulation 42(2), and notwithstanding sections 34, 37, 37E, 175 and 226 of the Act of 2000, or any other provision of that Act, where, under these Regulations, an authorisation has been granted in respect of a waste water discharge from a waste water works—
(a) a planning authority, or An Bord Pleanála, where it decides to grant a permission under section 34, 37 or 37E on appeal or otherwise, as the case may be, of the said Act, or
(b) An Bord Pleanála, where it decides to grant an approval under section 175 or 226 of the said Act,
in respect of a proposed development that involves a waste water discharge from a waste water works, shall not subject the permission or approval, as the case may be, to conditions which are for the purposes of controlling the waste water discharge.
(2) Where a permission or approval under the Act of 2000 has been subjected to conditions, other than conditions as referred to in paragraph (3)(b), that are for the purposes of controlling discharges from a development as described in paragraph (1), those conditions shall cease to have effect upon the granting of an authorisation under these Regulations in respect of the waste water discharges concerned.
…
Consideration of proposals by planning authorities and An Bord Pleanála
43. (1) Where a planning authority or An Bord Pleanála is considering an application for permission, an appeal or an application for approval under section 34, 37, 37E, 175 or 226 of the Act of 2000 for development being development which involves the disposal of waste water to a waste water works, or is considering such a development under section 179 of the Act of 2000, the planning authority or the Board, as the case may be, shall consider whether the discharge of waste water from the proposed development, in conjunction with existing discharges to the receiving waters, would cause non-compliance with the combined approach or, in situations where there is existing non-compliance, would result in a significant breach of the combined approach.
…
C59
Application of subs. (8) restricted (11.07.2007) by Roads Act 2007 (34/2007), s. 8(4), commenced on enactment.
Declaration of motorways.
8. — …
(4) Notwithstanding any other enactment, neither a planning authority or An Bord Pleanála shall decide to grant or grant planning permission nor shall a decision by such be regarded as having been given under section 34(8) of the Planning and Development Act 2000 in respect of the developments referred to in section 46 of the Principal Act in respect of a national road or a proposed road development for the construction of a national road declared to be a motorway under subsection (1).
C60
Planning authority enabled to attach conditions to certain applications under section as provided (7.12.2005) by European Communities (Waste Water Treatment) (Prevention of Odours and Noise) Regulations 2005 (S.I. No. 787 of 2005), reg. 5.
5. A planning authority shall, where granting permission for a development in accordance with section 34 of the Act of 2000 consisting of the provision of a waste water treatment plant, attach such conditions to the permission as may be in the opinion of the authority and having regard to the function of the Agency under Article 4 of these Regulations, necessary to ensure that the plant is so operated and maintained as to ensure that it avoids causing nuisance through odours or noise.
C61
Application of section restricted by Environmental Protection Agency Act 1992 (7/1992), s. 99F(1) and (9) as inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004 and as amended (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 79, S.I. No. 475 of 2011.
Appliction of other Acts.
99F.—(1) Notwithstanding section 34 of the Act of 2000, or any other provision of that Act, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, where it decides to grant a permission under section 34 [or substitute consent, within the meaning of section 177A], of that Act in respect of any development comprising or for the purposes of the activity, subject the permission to conditions which are for the purposes of—
(a) controlling emissions from the operation of the activity, including the prevention, elimination, limitation, abatement, or reduction of those emissions, or
(b) controlling emissions related to or following the cessation of the operation of the activity.
…
(9) Without prejudice to the preceding subsections, where a licence or revised licence under this Part is granted in relation to an activity and—
(a) a permission under section 34 of the Act of 2000, or
…
has been granted in respect of the same activity or in relation to development for the purposes of it, any conditions attached to that permission or contained in that lease, as the case may be, shall, so far as they are for the purposes of the prevention, elimination, limitation, abatement or reduction of emissions to the environment, cease to have effect.
C62
Application of subss. (6) and (8) restricted by Waste Management Act 1996 (10/1996), s. 22(10B) as inserted (17.07.2001) by Waste Management (Amendment) Act 2001 (36/2001), s. 4, commenced on enactment.
Waste management plans.
22.— …
(10B) (a) Where a planning authority proposes to grant permission under Part III of the Planning and Development Act, 2000, for development which is consistent with the provisions (including any objectives contained therein) of, and is necessary for the proper implementation of, the waste management plan in force in relation to the authority’s functional area, but, in the opinion of the manager of the authority, would contravene materially any other objective of the development plan in force in relation to that area, the manager shall—
(i) publish notice of the intention of the authority to grant the permission in one or more newspapers circulating in that area,
(ii) give a copy of the notice to the applicant for permission and to any person who has made a submission or observation in writing in relation to the development to which the application relates in accordance with any regulations made under the Planning and Development Act, 2000.
(b) Any submission or observation in writing in relation to the making of a decision to grant the permission concerned which is received by the planning authority not later than 4 weeks after the publication of the notice in accordance with paragraph (a) shall be considered by the manager of the authority.
(c) Following consideration of any submissions or observations received in accordance with paragraph (b), the manager of the planning authority may, subject to, and in accordance with, the provisions of the Planning and Development Act, 2000 (apart from the amendments of them effected by this section), decide to grant the permission, with or without conditions, or to refuse the permission.
(d) Section 34(6) of the Planning and Development Act, 2000, shall not apply to applications for permission referred to in paragraph (a).
(e) Notwithstanding section 34(8) of the Planning and Development Act, 2000, where a notice referred to in paragraph (a) is published in relation to an application for permission for development, the manager of the planning authority concerned shall make his or her decision in relation to the application within the period of 8 weeks beginning on the day on which the notice is first published.
…
Editorial Notes:
E166
In subs. (10), the replacement of “manager” by “chief executive” (above) is duplicated (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. no. 50, S.I. No. 436 of 2018.
E167
Approving a proposal of the chief executive to grant permission for the development of land which would contravene materially the development plan or local area plan under section is a reserved function of local authorities or municipal district members as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 2 ref. 11 as inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 21(3), (4) and sch. 3, S.I. No. 214 of 2014.
E168
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03.2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
E169
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E170
Previous affecting provision: subs. (5) amended (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 8(2), S.I. No. 525 of 2006; subs. (5) substituted (17.12.2021) as per F-note above.
E171
Previous affecting provision: subs. (7) amended(1.01.2002) by Local Government Act 2001 (37/2001), s. 5(3) and sch. 4, S.I. No. 588 of 2001; deleted as per F-note above.
E172
Previous affecting provision: subs. (7)(c) amended (1.01.2002) by Local Government Act 2001 (37/2001), s. 5(3) and sch. 4, S.I. No. 588 of 2001; deleted as per F-note above.
F355[
Interpretation – sections 34B, 34C, 37R and 37S
34A. (1) Section 2 (other than section 2 (3) (b)) of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall apply to the interpretation of this section and sections 34B, 34C, 37R and 37S, paragraph 20C of the Fourth Schedule, and paragraph 17A of the Fifth Schedule, as such section 2 applies to the interpretation of that Act.
(2) In sections 34B and 34C, “noise mitigation measures” includes land-use planning and management measures, measures to reduce noise at source and noise abatement operational measures (other than operating restrictions) that do not restrict the capacity of the airport.]
Annotations
Amendments:
F355
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 11, S.I. No. 403 of 2019.
F356[]
Supplementary provisions relating to proposed development at Dublin Airport
34B. (1)(a)(i) Where the planning authority receives an application under section 34 for development at the airport, it shall, as soon as is practicable after such receipt—
(I) give a copy of the application to the competent authority, and
(II) enter into consultations with the competent authority for the purposes of giving such assistance as the competent authority may require in order to enable the competent authority, within 4 weeks of the competent authority receiving such copy, to either form the opinion referred to in subparagraph (iii) or to conclude that it is not of that opinion.
(ii) The competent authority shall, where it concludes that it is not of the opinion referred to in subparagraph (iii), as soon as is practicable after it so concludes, give notice in writing of that conclusion to the planning authority.
(iii) The following provisions of this section apply where the competent authority, in considering the application, forms the opinion that the development—
(I) contains a proposal requiring the assessment for the need for a noise-related action, or
(II) indicates that a new operating restriction may be required.
(b) Subsections (1) to (3) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to the performance by the competent authority of its functions under this section.
(c) Subsections (4) to (7) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to measures and restrictions referred to in this section as those subsections apply to measures and restrictions referred to in those subsections.
(2) The competent authority shall, as soon as is practicable after it forms the opinion referred to in subsection (1)(a)(iii), give notice in writing to the planning authority of that opinion and the planning authority shall, as soon as is practicable after receiving the notice, consult with the competent authority in relation to, as appropriate, one or more of the following matters:
(a) any aspect of the development relating to noise that may arise in the operation of the development if it is carried out (including any such aspect relating to appropriate assessment or environmental impact assessment);
(b) any noise problem that would arise from the carrying out of the development as proposed, taking account of any noise mitigation measures or operating restrictions (if any), or any combination thereof, proposed in the application and any further information subsequently sought by the relevant authority from the applicant in relation to those matters and given by the applicant to the planning authority and the competent authority;
(c) where a noise problem would arise from the carrying out of the development as proposed—
(i) any information on the application of the Balanced Approach to the consideration of the inclusion of noise mitigation measures or operating restrictions (if any), or any combination thereof, in the application and any further information subsequently sought by the relevant authority from the applicant in relation to those matters and given by the applicant to the planning authority and the competent authority,
(ii) whether noise mitigation measures or operating restrictions (if any), or any combination thereof, not proposed in the application are or is required and any information or plans subsequently sought by the relevant authority from the applicant in relation to such measures or restrictions, or combination thereof, as the case may be, and given by the applicant to the planning authority and the competent authority,
(iii) any information subsequently sought by the relevant authority from the applicant in relation to the application of the Balanced Approach to the noise mitigation measures or operating restrictions, or combination thereof, referred to in subparagraph (ii) and given by the applicant to the planning authority and the competent authority, and
(iv) subject to subsection (4), whether permission could, in so far as noise-related issues are concerned, be granted for the development subject to conditions specified by the competent authority relating to noise mitigation measures or operating restrictions (if any), or any combination thereof.
(3) (a) In subsection (2) and paragraph (b), ‘relevant authority’ means the planning authority or the competent authority.
(b) Where the applicant gives any information or plans referred to in subsection (2) to one relevant authority, the applicant shall, on the same date (or as soon as is practicable thereafter), give copies of such information or plans, as the case may be, to the other relevant authority.
(4) Notwithstanding any other provision of this Act, the planning authority shall neither decide to refuse permission for the development nor decide to grant such permission subject to or without conditions until it receives a notice under subsection (5) or (14)(a)(ii) from the competent authority in respect of the application.
(5) (a) Paragraph (b) applies where the competent authority is satisfied that permission should not be granted for the development for the reason that inadequate provision has been made in the application (or in any plans or further information, or both, subsequently given by the applicant to the planning authority and the competent authority) to deal with the noise problem that would arise from the carrying out of the development as proposed.
(b) The competent authority shall, as soon as is practicable after it is so satisfied, give a notice in writing to the planning authority, stating the competent authority’s reasons why it is so satisfied, and directing the planning authority to refuse permission for the development.
(c) The planning authority shall comply with a direction given to it under paragraph (b) as soon as is practicable after it receives the notice concerned referred to in that paragraph and shall incorporate such notice in its decision to refuse permission for the development.
(d) Notwithstanding that a refusal referred to in paragraph (c) arises from a direction given by the competent authority to the planning authority, such refusal and the reasons for it shall, for the purposes of section 37 as read with section 37S, be treated as the decision, or part of the decision, as appropriate, of the planning authority on the application, and the other provisions of this Act shall be construed accordingly.
(6) Subsection (7) applies where the competent authority has applied the Balanced Approach to the noise problem referred to in subsection (2) and, in accordance with the Balanced Approach, assessed the noise mitigation measures or operating restrictions (if any), or any combination thereof, that may be required to be introduced as part of the development, and whether or not such measures or restrictions, or combination thereof, as the case may be, are or is in addition to, or in replacement of, one or more—
(a) noise mitigation measures or operating restrictions (if any), or any combination thereof, proposed in the application, or
(b) existing noise mitigation measures or operating restrictions (if any), or any combination thereof.
(7) The competent authority shall, as soon as it is practicable for it to do so, by notice in writing given to the applicant and copied to the planning authority—
(a) inform the applicant of the noise mitigation measures or operating restrictions (if any), or combination thereof, proposed to be required in a decision (if any) to grant permission for the development and its reasons for so proposing, and
(b) stating that the applicant may, within the period specified in the notice (being a period of not less than 4 weeks), make submissions or observations on such noise mitigation measures or operating restrictions (if any), or combination thereof, as the case may be, and on such reasons, including counterproposals, by notice in writing given to the competent authority and copied to the planning authority.
(8) The competent authority shall apply the Balanced Approach to its consideration of the counterproposals (if any) given to it by the applicant before the expiration of the period specified in the notice under subsection (7) concerned.
(9) Subject to subsection (10), the competent authority shall, as soon as is practicable after it complies with subsection (7) and, if applicable, subsection (8) and (at its discretion) having consulted with the applicant or any other person that it wishes to, in accordance with the Aircraft Noise Regulation and the Aircraft Noise (Dublin Airport) Regulation Act 2019, make, and publish on its website, a draft regulatory decision—
(i) on the noise mitigation measures or operating restrictions (if any), or combination thereof, that it proposes to direct the planning authority to include as conditions of the planning authority’s decision (if any) to grant permission for the development, or
(ii) that no such conditions are required to be included in the planning authority’s decision (if any) to grant permission for the development.
(10) The competent authority shall prepare, and publish on its website on the same date as the draft regulatory decision, a report in relation thereto which shall state the competent authority’s reasons for such decision and include therein, as appropriate:
(a) a summary of the data examined (including any data relating to appropriate assessment or environmental impact assessment);
(b) the noise abatement objective;
(c) the measures considered to address any noise problem;
(d) an evaluation of the cost-effectiveness of the various measures considered;
(e) the application of the Balanced Approach;
(f) the identification of additional or alternative measures (other than those proposed in the draft regulatory decision) that have been considered;
(g) particulars of any proposed noise mitigation measures and operating restrictions (if any) to be introduced;
(h) if applicable, the reasons for the proposed introduction of any noise mitigation measures and operating restrictions (if any);
(i) the relevant technical information in relation to any proposed noise mitigation measures and operating restrictions (if any) to be introduced;
(j) a non-technical summary of such of the matters concerned referred to in paragraphs (a) to (i).
(11) The competent authority shall, as soon as is practicable after it complies with subsections (9) and (10), publish, in a national newspaper, a notice—
(a) stating that the competent authority has—
(i) made a draft regulatory decision under subsection (9), and
(ii) prepared the related report under subsection (10),
(b) stating particulars of how persons may view or otherwise have access to the draft regulatory decision and related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours),
(c) inviting persons to make submissions or observations in writing (and to provide a return address with such submissions or observations) in the specified form (if any) on the draft regulatory decision or related report, or both, before the expiration of 14 weeks beginning on the date of publication of the notice in the national newspaper, and
(d) stating particulars of the addresses (which shall include an electronic address) to which such submissions or observations may be sent.
(12) (a) The competent authority shall, as soon as is practicable after it complies with subsections (9) and (10), give each of the applicant, the airport authority and the planning authority copies of the draft regulatory decision that it made under subsection (9) and the related report that it prepared under subsection (10).
(b) For the avoidance of doubt, it is hereby declared that the applicant, the airport authority and the planning authority may each make submissions or observations referred to in subsection (11)(c) in accordance with that subsection.
(13) The competent authority shall, as soon as is practicable after the expiration of the 14 weeks referred to in subsection (11)(c) and having regard to the submissions and observations (if any) referred to in that subsection received by it within such 14 weeks—
(a) make a regulatory decision consisting of the adoption by it of the draft regulatory decision made by it under subsection (9) without any amendments or with such amendments as it considers appropriate, and
(b) revise the related report prepared under subsection (11) to take into account such submissions and observations (if any) and such adoption and to state the competent authority’s reasons for such regulatory decision.
(14) The competent authority shall—
(a) as soon as is practicable after it complies with subsection (13)—
(i) publish on its website the regulatory decision it has adopted under subsection (13)(a) and the related report it has revised under subsection (13)(b), and
(ii) send a copy of such decision, together with a copy of the notice referred to in paragraph (b) (whether before or after the notice is published), to the applicant, the airport authority, the planning authority, the elected members of FCC, the elected members of Dáil Éireann in whose constituencies the airport is located and the return addresses of the persons who have made submissions or observations referred to in subsection (11)(c) in accordance with that subsection on the draft regulatory decision or related report concerned,
and
(b) as soon as is practicable after it complies with paragraph (a)(i), publish, in a national newspaper, a notice stating—
(i) that the competent authority has adopted a regulatory decision under subsection (13)(a),
(ii) that the competent authority has revised the related report under subsection (13)(b),
(iii) particulars of how persons may view or otherwise have access to such regulatory decision and such related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours), and
(iv) that a right of appeal to the Board against the regulatory decision exists under section 37 as read with section 37R.
(15) (a) The planning authority shall incorporate the competent authority’s regulatory decision under subsection (13)(a), the subject of the notice given to the planning authority under subsection (14)(a)(ii), and the competent authority’s reasons for such decision in the planning authority’s decision on the application and shall do so regardless of whether the planning authority’s decision is to refuse permission for the development or to grant permission for the development.
(b) Notwithstanding that a regulatory decision referred to in paragraph (a) is made by the competent authority, such decision and the reasons for it shall, for the purposes of section 37 as read with section 37R, be treated as the decision, or part of the decision, as appropriate, of the planning authority on the application, and the other provisions of this Act shall be construed accordingly.
(c) The planning authority shall make its decision on the application as soon as is practicable after it receives, pursuant to subsection (14)(a)(ii), a copy of the competent authority’s regulatory decision under subsection (13)(a).
(16) Subject to subsection (17), a noise mitigation measure to be introduced by virtue of a regulatory decision adopted under subsection (13)(a) shall—
(a) if no appeal under section 37 as read with section 37R is made, within the appropriate period referred to in section 37(1), against the planning authority’s decision on the application, come into effect on the expiration of such appropriate period, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(17) The competent authority may, by notice published on its website on the same date as the regulatory decision adopted under subsection (13)(a) is, pursuant to subsection (14)(a), also so published—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of a noise mitigation measure to be introduced by virtue of that decision, and
(b) specify the date, or the occurrence of the event, on which such noise mitigation measure shall come into effect.
(18) Subject to section 26 (b) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, the competent authority shall, in relation to an operating restriction to be introduced by virtue of a regulatory decision adopted under subsection (13)(a), take such steps as it considers appropriate to cause Article 8 of the Aircraft Noise Regulation to be complied with as soon as is practicable after it applies to such restriction.
(19) Subject to subsection (20), an operating restriction referred to in subsection (18) shall—
(a) come into effect on the day immediately following the day on which the operation of Article 8 of the Aircraft Noise Regulation ceases to further prevent the coming into effect of the operating restriction, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(20) The competent authority may, by notice published on its website at any time before the day first-mentioned in subsection (19)(a)—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of the operating restriction referred to in subsection (18), and
(b) specify the date, or the occurrence of the event, on which such operating restriction shall come into effect.
(21) Subsection (6) of section 34 shall not apply where the competent authority forms the opinion that a noise problem that would arise from the carrying out of the development as proposed would contravene materially the development plan or local area plan.]
Annotations
Amendments:
F356
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 11, S.I. No. 403 of 2019.
F357[
Supplementary provisions relating to operating restriction included in planning permission
34C. (1) (a) The person in whose favour a relevant permission operates may, by virtue of this subsection and notwithstanding any other provision of this Act (including section 34), make an application under section 34 to the planning authority where the application is only for a relevant action to be taken.
(b) Section 34 and the other provisions of this Act shall be read with all necessary modifications to take account of the relevant application.
(c) Subsections (4) to (7) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to measures and restrictions referred to in this section as those subsections apply to measures and restrictions referred to in those subsections.
(2) The planning authority shall give the competent authority a copy of the relevant application and consult with the competent authority in relation to, as appropriate, one or more of the following matters:
(a) any noise problem that would arise from taking the relevant action as proposed (including any implications that would arise therefrom in relation to appropriate assessment or environmental impact assessment matters) and any further information subsequently sought by the relevant authority from the applicant in relation to such action and given by the applicant to the planning authority and the competent authority;
(b) where a noise problem would arise from taking the relevant action as proposed—
(i) any information in the relevant application on the application of the Balanced Approach to the relevant action and any further information or plans subsequently sought by the relevant authority from the applicant in relation to the relevant action or Balanced Approach and given by the applicant to the planning authority and the competent authority,
(ii) whether noise mitigation measures or operating restrictions (if any), or any combination thereof, not proposed in the relevant application are or is required and any information or plans subsequently sought by the relevant authority from the applicant in relation to such measures or restrictions, or combination thereof, as the case may be, and given by the applicant to the planning authority and the competent authority,
(iii) any information subsequently sought by the relevant authority from the applicant in relation to the application of the Balanced Approach to the noise mitigation measures or operating restrictions, or combination thereof, referred to in subparagraph (ii) and given by the applicant to the planning authority and the competent authority, and
(iv) subject to subsection (4), whether permission could be granted for the taking of the relevant action subject to conditions specified by the competent authority relating to noise mitigation measures or operating restrictions (if any), or any combination thereof.
(3) (a) In subsection (2) and paragraph (b), ‘relevant authority’ means the planning authority or the competent authority.
(b) Where the applicant gives any information or plans referred to in subsection (2) to one relevant authority, it shall, on the same date (or as soon as is practicable thereafter), give copies of such information or plans, as the case may be, to the other relevant authority.
(4) Where this section applies and notwithstanding any other provision of this Act, the planning authority shall neither decide to refuse the relevant application nor grant the relevant application subject to or without conditions until it receives a notice under subsection (5) or (15)(a)(ii) from the competent authority in respect of the relevant application.
(5) (a) Paragraph (b) applies where the competent authority is satisfied that permission should not be granted for the relevant application for the reason that inadequate provision has been made in the application (or in any plans or further information, or both, subsequently given by the applicant to the planning authority and the competent authority) to deal with the noise problem that would arise from the carrying out of the relevant action as proposed.
(b) The competent authority shall, as soon as is practicable after it is so satisfied, give a notice in writing to the planning authority, stating the competent authority’s reasons why it is so satisfied, and directing the planning authority to refuse the relevant application.
(c) The planning authority shall comply with a direction given to it under paragraph (b) as soon as is practicable after it receives the notice referred to in that paragraph and shall incorporate such notice in its decision to refuse the relevant application.
(d) Notwithstanding that a refusal referred to in paragraph (c) arises from a direction given by the competent authority to the planning authority, such refusal and the reasons for it shall, for the purposes of section 37 as read with section 37S, be treated as the decision of the planning authority on the relevant application, and the other provisions of this Act shall be construed accordingly.
(6) The planning authority shall, in determining the relevant application, consider whether taking the relevant action requires the reconsideration of any other aspect of the relevant permission and, after having consulted with the competent authority, may, in accordance with regulations made under section 33, request and consider further information from the applicant in that regard.
(7) Subsection (8) applies where the competent authority has applied the Balanced Approach to the noise problem referred to in subsection (2) and, in accordance with the Balanced Approach, assessed the noise mitigation measures or operating restrictions (if any), or any combination thereof, that may be required to be introduced, and whether or not such measures or restrictions, or combination thereof, as the case may be, are or is in addition to, or in replacement of, one or more—
(a) noise mitigation measures or operating restrictions (if any), or any combination thereof, proposed in the relevant action, or
(b) existing noise mitigation measures or operating restrictions, or combination thereof.
(8) The competent authority shall, as soon as it is practicable for it to do so, by notice in writing given to the applicant and copied to the planning authority—
(a) inform the applicant of the noise mitigation measures or operating restrictions (if any), or combination thereof, proposed to be required in a decision (if any) to grant the relevant application and its reasons for so proposing, and
(b) stating that the applicant may, within the period specified in the notice (being a period of not less than 4 weeks), make submissions or observations on such noise mitigation measures or operating restrictions (if any), or combination thereof, as the case may be, and on such reasons, including counterproposals, by notice in writing given to the competent authority and copied to the planning authority.
(9) The competent authority shall apply the Balanced Approach to its consideration of the counterproposals (if any) given to it by the applicant before the expiration of the period specified in the notice under subsection (8) concerned.
(10) Subject to subsection (11), the competent authority shall, as soon as is practicable after it complies with subsection (8) and, if applicable, subsection (9) and (at its discretion) having consulted with the applicant or any other person that it wishes to, in accordance with the Aircraft Noise Regulation and the Aircraft Noise (Dublin Airport) Regulation Act 2019, make, and publish on its website, a draft regulatory decision—
(i) on the noise mitigation measures or operating restrictions (if any), or combination thereof, that it proposes to direct the planning authority to include as conditions of the planning authority’s decision (if any) to grant the relevant application, or
(ii) that no such conditions are required to be included in the planning authority’s decision (if any) to grant the relevant application.
(11) The competent authority shall prepare, and publish on its website on the same date as the draft regulatory decision, a report in relation thereto which shall state the planning authority’s reasons for such decision and include therein, as appropriate:
(a) a summary of the data examined (including any data relating to appropriate assessment or environmental impact assessment);
(b) the noise abatement objective;
(c) the measures considered to address any noise problem;
(d) an evaluation of the cost-effectiveness of the various measures considered;
(e) the application of the Balanced Approach;
(f) the identification of additional or alternative measures (other than those proposed in the draft regulatory decision) that have been considered;
(g) particulars of any proposed noise mitigation measures and operating restrictions (if any);
(h) if applicable, the reasons for the proposed introduction of any noise mitigation measures and operating restrictions (if any);
(i) the relevant technical information in relation to any proposed noise mitigation measures and operating restrictions (if any);
(j) a non-technical summary of such of the matters concerned referred to in paragraphs (a) to (i).
(12) The competent authority shall, as soon as is practicable after it complies with subsections (10) and (11), publish, in a national newspaper, a notice—
(a) stating that the competent authority has—
(i) made a draft regulatory decision under subsection (10), and
(ii) prepared the related report under subsection (11),
(b) stating particulars of how persons may view or otherwise have access to the draft regulatory decision and related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours),
(c) inviting persons to make submissions or observations in writing (and to provide a return address with such submissions or observations) in the specified form (if any) on the draft regulatory decision or related report, or both, before the expiration of 14 weeks beginning on the date of publication of the notice in the national newspaper, and
(d) stating particulars of the addresses (which shall include an electronic address) to which such submissions or observations may be sent.
(13) (a) The competent authority shall, as soon as is practicable after it complies with subsections (10) and (11), give each of the applicant, the airport authority and the planning authority copies of the draft regulatory decision that it made under subsection (10) and the related report that it prepared under subsection (11).
(b) For the avoidance of doubt, it is hereby declared that the applicant, the airport authority and the planning authority may each make submissions or observations referred to in subsection (12)(c) in accordance with that subsection.
(14) The competent authority shall, as soon as is practicable after the expiration of the 14 weeks referred to in subsection (12)(c) and having regard to the submissions and observations (if any) referred to in that subsection received by it within such 14 weeks—
(a) make a regulatory decision consisting of the adoption by it of the draft regulatory decision made by it under subsection (10) without any amendments or with such amendments as it considers appropriate, and
(b) revise the related report prepared under subsection (11) to take into account such submissions and observations (if any) and such adoption and to state the competent authority’s reasons for such regulatory decision.
(15) The competent authority shall—
(a) as soon as is practicable after it complies with subsection (14)—
(i) publish on its website the regulatory decision it has adopted under subsection (14)(a) and the related report it has revised under subsection (14)(b), and
(ii) send a copy of such decision, together with a copy of the notice referred to in paragraph (b) (whether before or after the notice is published), to the applicant, the airport authority, the planning authority, the elected members of FCC, the elected members of Dáil Éireann in whose constituencies the airport is located and the return addresses of the persons who have made submissions or observations referred to in subsection (12)(c) in accordance with that subsection on the draft regulatory decision or related report concerned,
and
(b) as soon as is practicable after it complies with paragraph (a)(i), publish, in a national newspaper, a notice stating—
(i) that the competent authority has adopted a regulatory decision under subsection (14)(a),
(ii) that the competent authority has revised the related report under subsection (14)(b),
(iii) particulars of how persons may view or otherwise have access to such regulatory decision and such related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours), and
(iv) that a right to appeal to the Board against the regulatory decision exists under section 37 as read with section 37R.
(16) (a) The planning authority shall—
(i) incorporate the competent authority’s regulatory decision under subsection (14)(a), the subject of the notice given to the planning authority under subsection (15)(a)(ii), and the competent authority’s reasons for such decision in the planning authority’s decision on the application and shall do so regardless of whether the planning authority’s decision is to refuse the relevant application or to grant the relevant application, and
(ii) notwithstanding any other provision of this Act, if necessary, revoke, revoke and replace, or amend the terms of, a condition of the relevant permission in order to make the relevant permission compatible with that regulatory decision.
(b) Notwithstanding that a regulatory decision referred to in paragraph (a) is a decision made by the competent authority, such decision and the reasons for it shall, for the purposes of section 37 as read with section 37R, be treated as the decision of the planning authority on the relevant application, and the other provisions of this Act shall be construed accordingly.
(c) The planning authority shall make its decision on the application as soon as is practicable after it receives, pursuant to subsection (15)(a)(ii), a copy of the competent authority’s regulatory decision under subsection (14)(a).
(17) Subject to subsection (18), a noise mitigation measure to be introduced by virtue of a regulatory decision adopted under subsection (14)(a) shall—
(a) if no appeal under section 37 as read with section 37R is made, within the appropriate period referred to in section 37(1), against the planning authority’s decision on the application, come into effect on the expiration of such appropriate period, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(18) The competent authority may, by notice published on its website on the same date as the regulatory decision adopted under subsection (14)(a) is, pursuant to subsection (15)(a), also so published—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of a noise mitigation measure to be introduced by virtue of that decision, and
(b) specify the date, or the occurrence of the event, on which such noise mitigation measure shall come into effect.
(19) Subject to section 26 (b) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, the competent authority shall, in relation to an operating restriction to be introduced by virtue of a regulatory decision adopted under subsection (14)(a), take such steps as it considers appropriate to cause Article 8 of the Aircraft Noise Regulation to be complied with as soon as is practicable after it applies to such restriction.
(20) Subject to subsection (21), an operating restriction referred to in subsection (19) shall—
(a) come into effect on the day immediately following the day on which the operation of Article 8 of the Aircraft Noise Regulation ceases to further prevent the coming into effect of the operating restriction, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(21) The competent authority may, by notice published on its website at any time before the day first-mentioned in subsection (20)(a)—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of the operating restriction referred to in subsection (19), and
(b) specify the date, or the occurrence of the event, on which such operating restriction shall come into effect.
(22) In this Part, health aspects shall be assessed in accordance with Environmental Noise Directive and the European Communities (Environmental Noise) Regulations 2018 (S.I. No. 549 of 2018).
(23) In this section—
“relevant action”, in relation to a relevant operating restriction the subject of a relevant application, means—
(a) to revoke the operating restriction,
(b) to amend the terms of the operating restriction in the manner specified in the application,
(c) to replace the operating restriction with the alternative operating restriction specified in the application,
(d) to take an action referred to in paragraph (a), (b) or (c) together with introducing new noise mitigation measures or revoking, revoking and replacing, or amending the terms of, existing noise mitigation measures, or a combination thereof,
(e) if the relevant application relates to 2 or more relevant operating restrictions, to take any combination of any of the actions referred to in paragraphs (a) to (d), or
(f) to take an action referred to in paragraph (a), (b), (c), (d) or (e) together with revoking, revoking and replacing, or amending the terms of, a condition of the relevant permission;
“relevant application” means an application referred to in subsection (1)(a);
“relevant operating restriction”, in relation to a relevant permission, means an operating restriction included in that permission;
“relevant permission” means a permission granted under section 34—
(a) for development at the airport, and
(b) that includes an operating restriction.]
Annotations
Amendments:
F357
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 11, S.I. No. 403 of 2019.
Refusal of planning permission for past failures to comply.
F358[35.—(1) Where, having regard to—
(a) any information furnished pursuant to regulations made under section 33(2)(l),
(b) any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a “previous permission”) granted to the applicant or to any other person under this Part or Part IV of the Act of 1963,
(c) any information otherwise available to the planning authority concerning a substantial unauthorised development, or
(d) any information concerning a conviction for an offence under this Act,
the planning authority is satisfied that a person to whom this section applies is not in compliance with a previous permission or with a condition to which the previous permission is subject, has carried out a substantial unauthorised development, or has been convicted of an offence under this Act, the authority may form the opinion—
(i) that there is a real and substantial risk that the development in respect of which permission is sought would not be completed in accordance with such permission if granted or with a condition to which such permission if granted would be subject, and
(ii) that accordingly planning permission should not be granted to the applicant concerned in respect of that development. ]
(2) In forming its opinion under subsection (1), the planning authority shall only consider those failures to comply with any previous permission, or with any condition to which that permission is subject, that are of a substantial nature.
(3) An opinion under this subsection shall not be a decision on an application for permission for the purposes of this Part.
F359[F358[(4) If the planning authority considers that there are good grounds for its being able to form the opinion under subsection (1) in relation to an application for permission in respect of the development concerned and, accordingly, to exercise the power under subsection (5) to refuse that permission, it shall serve a notice in writing on the applicant to that effect and that notice shall—
(a) specify the non compliance with a previous permission or condition of a previous permission, substantial unauthorised development, or conviction for an offence under this Act, as the case may be, that the authority intends to take into consideration with regard to the proposed exercise of that power, and
(b) invite the applicant to make submissions to the authority within a period specified in the notice as to why the applicant considers that the authority should not exercise that power (whether because the applicant contends that the views of the authority in relation to the failure to comply by the applicant or any other person to whom this section applies with any previous permission, or any condition to which it is subject, the carrying out of substantial unauthorised development or conviction for an offence under this Act, as the case may be, are incorrect or that there are not good grounds for forming the opinion under subsection (1)).]
(5) If the planning authority, having considered any submissions made to it in accordance with a notice under subsection (4), proceeds to form the opinion under subsection (1) in relation to the application concerned it shall decide to refuse to grant the permission concerned and notify the applicant accordingly.
(6) The applicant may, within 8 weeks from the receipt of that notification, notwithstanding sections 50 and 50A, apply, by motion on notice to the planning authority, to the High Court for an order annulling the planning authority’s decision and, on the hearing of such application, the High Court may, as it considers appropriate, confirm the decision of the authority, annul the decision and direct the authority to consider the applicant’s application for planning permission without reference to the provisions of this section or make such other order as it thinks fit.
(6A) If, in pursuance of subsection (6), the High Court directs the planning authority to consider the applicant’s application for planning permission without reference to the provisions of this section, the planning authority shall make its decision on the application within the period of 8 weeks from the date the order of the High Court in the matter is perfected but this subsection is subject to the provisions of section 34(8) as applied to the foregoing case by subsection (6B).
(6B) For the purposes of the foregoing case the provisions of section 34(8) shall apply with the following modifications:
(a) in paragraph (a) of section 34(8), after “paragraphs (b), (c), (d) and (e)”, there shall be inserted “and section 35(6A)”;
(b) for the reference in paragraph (b) of section 34(8) to “8 weeks of the receipt of a planning application” there shall be substituted “8 weeks of the date the order of the High Court in the matter is perfected”;
(c) in paragraph (f) of section 34(8), after “paragraph (a), (b), (c), (d) or (e)”, there shall be inserted “, the period specified in section 35(6A) or, as the case may be, the period specified in paragraph (b), (c), (d) or (e) as that paragraph is applied by virtue of section 35(6B)”; and
(d) any other necessary modifications.
(6C) No appeal shall lie to the Board from a decision of a planning authority to refuse to grant planning permission under subsection (5).]
(7) In this section, “a person to whom this section applies” means—
(a) the applicant for the permission concerned,
(b) any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a “previous permission”) granted to the applicant or to any other person under F360[this Part or Chapter III of Part XXI,] or Part IV of the Act of 1963,
F361[(ba) a registered society under the Industrial and Provident Societies Acts 1893 to 2014 that—
(i) carried out a development pursuant to a previous permission,
(ii) carried out a substantial unauthorised development, or
(iii) has been convicted of an offence under this Act,
or, during any period to which subparagraph (i) or (ii) relates or to which any conviction under subparagraph (iii) relates, the registered society was, during that period, controlled by the applicant—
(I) where, pursuant to section 15 of the Friendly Societies and Industrial and Provident Societies (Miscellaneous Provisions) Act 2014, ‘control’ has the same meaning as in section 220(5) of the Companies Act 2014, or
(II) as a shadow director within the meaning of section 2(1) of the Companies Act 2014,]
(c) in the case where the applicant for permission is a company—
(i) the company concerned is related to a company (within the meaning of section 140(5) of the Companies Act, 1990) which F358[carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,] or
(ii) the company concerned is under the same control as a company which carried out a development referred to in subsection (1)(b), where “control” has the same meaning as in section 26(3) of the Companies Act, 1990,
or
(d) a company which F358[carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,] which company is controlled by the applicant—
(i) where “control” has the same meaning as in section 26(3) of the Companies Act, 1990, or
(ii) as a shadow director within the meaning of section 27(1) of the Companies Act, 1990.
Annotations
Amendments:
F358
Substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 24(a), (b), S.I. No. 477 of 2010.
F359
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 9, S.I. No. 525 of 2006.
F360
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 12, S.I. No. 488 of 2022.
F361
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 24, S.I. No. 436 of 2018.
Editorial Notes:
E173
Previous affecting provision: subs. (1)(b) amended (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 24, S.I. No. 477 of 2010; substituted (1.10.2022) as per F-note above.
E174
Previous affecting provision: subs. (4) inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 9, S.I. No. 525 of 2006, substituted as per F-note above.
Outline permission.
36.—(1) An application under section 34 may be made to a planning authority in accordance with the permission regulations for outline permission for the development of land.
(2) Where outline permission is granted under section 34, that permission shall not operate to authorise the carrying out of any development to which the outline permission relates until a subsequent permission has been granted under that section.
(3) (a) Where outline permission has been granted by a planning authority, any subsequent application for permission must be made not later than 3 years beginning on the date of the grant of outline permission, or such longer period, not exceeding 5 years, as may be specified by the planning authority.
(b) The outline permission shall cease to have effect at the end of the period referred to in paragraph (a) unless the subsequent application for permission is made within that period.
(c) Sections 40, 41 and 42 shall not apply to the grant of an outline permission.
(4) Where an application for permission is made to a planning authority consequent on the grant of outline permission, the planning authority shall not refuse to grant permission on the basis of any matter which had been decided in the grant of outline permission, provided that the authority is satisfied that the proposed development is within the terms of the outline permission.
(5) No appeal may be brought to the Board under section 37 against a decision of a planning authority to grant permission consequent on the grant of outline permission in respect of any aspect of the proposed development which was decided in the grant of outline permission.
(6) In this section, “outline permission” means permission granted in principle under section 34 for the development of land subject to a subsequent detailed application for permission under that section.
Planning and Development Regulations
PART 4
CONTROL OF DEVELOPMENT
Chapter 1
Permission Regulations – planning applications and decisions
Planning application accompanied by EIAR or which relates to establishment to which Major
16.
(1)
Any person who makes a planning application which is required to be accompanied by an EIAR in accordance with section 172 of the Act or these Regulations shall comply with the requirements of Part 10 in addition to the requirements of this Part.
(2)
Any planning application for development of a type referred to in article 137(1)(a) shall be subject
Footnote*** [i102]: Article 15H was inserted by article 10 of S.I. No. 436/2004 Planning and Development (Strategic Environmental Assessment) Regulations 2004
Footnote*** [i103]: Part 4 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i104]: Amended by article 98 of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
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Accident Regulations apply.
to the requirements of Part 11 in addition to the requirements of this Part.
Notice of planning application. 17.
(1)
An applicant shall within the period of 2 weeks before the making of a planning application—
(a) give notice of the intention to make the application in a newspaper in accordance with article 18, and
(b) give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19.
(2)
Where the last day of the 2 week period referred to in sub-article (1) is a Saturday, Sunday, a public holiday (within the meaning of the Organisation of Working Time Act 1997 (No. 20 of 1997)), or any other day on which the offices of the planning authority are closed, the application shall be valid if received on the next following day on which the offices of the planning authority are open.
(3)
The requirement of sub-article (1)(b) shall not apply in relation to a planning application for development consisting of the construction or erection by an electricity undertaking of overhead transmission or distribution lines for conducting electricity, or development consisting of the construction or erection by any statutory undertaker authorised to provide a telecommunications service of overhead telecommunications lines.
Footnote*** [i106]: Article 17 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
83
Notice in newspaper. 18.
(1)
A notice published in accordance with article 17(1)(a) shall be published in a newspaper approved for this purpose in accordance with sub-article (2), shall contain as a heading the name of the planning authority to which the planning application will be made and shall state—
(a) the name of the applicant,
(b) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(c) whether the application is for permission for development, permission for retention of development, outline permission for development or permission consequent on the grant of outline permission (stating the reference number on the register of the relevant outline permission),
(d) a brief description of the nature and extent of the development, including –
(i) where the application relates to development consisting of or comprising the provision of houses, the number of houses to be provided,
(ii) where the application relates to the retention of a structure, the nature of the proposed use of the structure and, where appropriate, the period for which it is proposed to retain the structure,
(iii) where the application relates to development which would consist of or comprise the carrying out of works to a protected structure or proposed protected structure, an indication of that fact,
(iv) where the application relates to development which comprises or is for the purposes of an activity requiring an integrated pollution control licence, an industrial emissions licence or a waste licence, an indication of that fact,
(v) where a planning application relates to development in a strategic development zone, an indication of that fact,
Footnote*** [i107]: Article 18 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i108]: Amended by article of S.I. No. 588/2021 Planning and Development (Amendment) (No. 3) Regulations 2021
Footnote*** [i109]: Amended by article 5(a) of S.I. No. 716/2021 – Planning and Development (Large-scale Residential Development) Regulations 2021
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(vi) where the application relates to an LRD, an indication of that fact and include the web address referred to in article 20A,
and
(e) that the planning application may be inspected, or purchased at a fee not exceeding the reasonable cost of making a copy, at the offices of the planning authority during its public opening hours and that a submission or observation in relation to the application may be made to the authority in writing on payment of the prescribed fee within the period of 5 weeks beginning on the date of receipt by the authority of the application.
(2)
(a) For the purposes of these Regulations, each planning authority shall approve a list of the newspapers, including national newspapers, it considers have a sufficiently large circulation in its functional area, and different newspapers may be approved in respect of different parts of such functional area.
(b) The list referred to in paragraph (a) shall be reviewed by the planning authority as may be appropriate and at least once a year.
(c) The list referred to in paragraph (a) shall be displayed in or at the offices of the planning authority or at any other place or by any other means, including in electronic form, that the authority considers appropriate, and copies shall be made available at the offices of the planning authority during office hours, free of charge.
Site Notice. 19.
(1)
A site notice erected or fixed on any land or structure in accordance with article 17(1)(b) shall be—
(a) in the form set out at Form No. 1 of Schedule 3, or a form substantially to the like effect,
(b) subject to sub-article (4), inscribed or printed in indelible ink on a white background, affixed on rigid, durable material and secured against damage from bad weather and other causes, and
(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or where there is more than one
Footnote*** [i110]: Sub-paragraph 18(1)(d)(vi) is inserted by article 5(b) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
Footnote*** [i111]: Article 19 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
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entrance from public roads, on or near all such entrances, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road, and shall not be obscured or concealed at any time.
(2)
Where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure, and shall not be obscured or concealed at any time.
(3)
Where a planning authority considers that the erection or fixing of a single site notice is not sufficient to comply with the requirements of sub-articles (1) and (2), or does not adequately inform the public, the authority may require the applicant to erect or fix such further site notice or notices in such a manner and in such terms as it may specify and to submit to the authority such evidence as it may specify in relation to compliance with any such requirements.
(4)
Where a valid planning application is made in respect of any land or structure, and a subsequent application is made within 6 months from the date of making the first-mentioned application in respect of land substantially consisting of the site or part of the site to which the first-mentioned application related, in lieu of the requirements of sub-article (1)(b), the site notice for the subsequent application shall be inscribed or printed in indelible ink on a yellow background and affixed on rigid, durable material and be secured against damage from bad weather and other causes.
Time limits for site notice. 20.
In addition to the requirements of article 17(1)(b), a site notice shall be maintained in position on the land or structure concerned for a period of 5 weeks from the date of receipt of the planning application by the planning authority, shall be renewed or replaced if it is removed or becomes defaced or illegible within that period and shall be removed by the applicant following the notification of the planning authority decision under article 31.
Restriction on outline application. 21.
Notwithstanding section 36 of the Act, an outline application may not be made for permission for —
(a) retention of development,
(b) development which would consist of or comprise the carrying out of works to a protected structure or a proposed protected structure, or
(c) development which comprises or is for the purposes of an activity requiring an integrated pollution control licence or a waste licence.
Content of planning applications generally. 22.
(1)
A planning application under section 34 of the Act shall be in the form set out at Form No. 2 of Schedule 3, or a form substantially to the like effect.
(1A)
Notwithstanding sub-article (1), a planning application under section 34 of the Act in respect of an LRD shall also include a copy of the form set out at Form no. 19 of Schedule 3, or a form substantially to the like effect.
(2) A planning application referred to in sub-articles (1) and (1A) shall be accompanied by –
Footnote*** [i114]: Article 21 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i115]: Article 22 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i116]: Sub-article 22(1A) is inserted by article 7(1) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
Footnote*** [i117]: Amended by article 7(2) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
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(a) the relevant page of the newspaper, or a copy of the relevant page, including the date and title of the newspaper, in which notice of the application has been published pursuant to article 17(1)(a), and a copy of the site notice erected or fixed on the land or structure pursuant to article 17(1)(b),
(b) 6 copies of a location map of sufficient size and containing details of features in the vicinity such as to permit the identification of the site to which the application relates, to a scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500 in all other areas, or such other scale as may be agreed with the planning authority prior to the submission of the application, in any particular case and marked so as to identify clearly:
(i) the land or structure to which the application relates and the boundaries thereof in red,
(ii) any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant or the person who owns the land which is the subject of the application in blue.
(iii) any wayleaves in yellow, and
(iv) the position of the site notice or notices erected or fixed to the land or structure pursuant to article 17(1)(b),
(c) where it is proposed to dispose of wastewater from the proposed development other than to a public sewer, information on the on-site treatment system proposed and evidence as to the suitability of the site for the system proposed,
(d) the documents, particulars, plans, drawings and maps referred to in sub-article (4),
(e) in the case of an application for permission for the development of houses or of houses and other development, to which section 96 of the Act applies, details as to how the applicant proposes to comply with a condition referred to in sub-section (2) of that section to which the permission. if granted, would be subject, including –
(i) details of such part or parts of the land which is subject to the application for
Footnote*** [i118]: Paragraph 22(2)(e) is substituted by article 3 of S.I. No. 387 of 2015 Planning and Development (Amendment)(No. 3) Regulations 2015
Footnote*** [i119]: Sub-paragraph 22(2)(e)(i) is substituted by article 3 of S.I. No. 387 of 2015 Planning and Development (Amendment)(No. 3) Regulations 2015
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permission or is or are specified by the Part V agreement, or houses situated on such aforementioned land or elsewhere in the planning authority’s functional area proposed to be transferred to the planning authority, or details of houses situated on such aforementioned land or elsewhere in the planning authority’s functional area proposed to he leased to the planning authority, or details of any combination of the foregoing, and
(ii) details of the calculations and methodology for calculating values of land, site costs. normal construction and development costs and profit on those costs and other related costs such as an appropriate share of any common development works as required to comply with the provisions in Part V of the Act,
(f) where appropriate, a certificate issued by the planning authority in accordance with section 97 of the Act, or if such certificate has been applied for but not issued, a copy of the application made in accordance with article 48,
(g) where the applicant is not the legal owner of the land or structure concerned –
(i) the written consent of the owner to make the application, or
(ii) in the case of a proposed development, or part of a proposed development, that is in, on, over or under a public road, written confirmation that the proposed development concerned is to be undertaken by a statutory undertaker having a right or interest to provide services in connection with the proposed development, or
(iii) in the case of a proposed development, or part of a proposed development, where the applicant is Irish Water and it is the intention of the applicant to compulsorily acquire the land for the purpose of such development, written confirmation of the intention of such applicant to compulsorily acquire the land in question should planning permission be granted for the proposed development, and the statutory provision or provisions under which it intends to seek the compulsorily acquisition of such lands,
Footnote*** [i120]: Sub-paragraph 22(2)(e)(ii) is substituted by article 3 of S.I. No. 387 of 2015 – Planning and Development (Amendment)(No. 3) Regulations 2015
Footnote*** [i121]: Paragraph 22(2)(g) was substituted by article 2(a) of S.I. No. 9 of 2021 Planning and Development (Amendment) Regulations 2021
Footnote*** [i122]: Paragraph 22(2)(g) is further substituted by article 3 of S.I. No. 565/2022 Planning and Development (Amendment)(No. 2) Regulations 2022
Footnote*** [i123]: Some text here was deleted by article 47(a)(i) of S.I. No. 296/2018 – European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i124]: Sub-paragraph 22(2)(g)(i) was substituted by article 2(a) of S.I. No. 9 of 2021 Planning and Development (Amendment) Regulations 2021
Footnote*** [i125]: Sub-article 22(2)(g)(i) is further substituted by article 3 of S.I. No. 565/2022 Planning and Development (Amendment) (No. 2) Regulations 2022
Footnote*** [i126]: Sub-paragraph 22(2)(g)(ii) was substituted by article 2(a) of S.I. No. 9 of 2021 Planning and Development (Amendment) Regulations 2021
Footnote*** [i127]: Sub-article 22(2)(g)(ii) is further substituted by article 3 of S.I. No. 565/2022 Planning and Development (Amendment) (No. 2) Regulations 2022
Footnote*** [i128]: Sub-paragraph 22(2)(g)(iii) was substituted by article 2(a) of S.I. No. 9 of 2021 Planning and Development (Amendment) Regulations 2021
Footnote*** [i129]: Sub-article 22(2)(g)(iii) is further substituted by article 3 of S.I. No. 565/2022 Planning and Development (Amendment) (No. 2) Regulations 2022
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(ga) where the application is accompanied by an EIAR, a copy of the confirmation notice, and
(h) the appropriate fee as set out in Schedule 9.
Where the planning authority consents to the making of a planning application wholly or partly in searchable electronic or other electronic form, an application or any part thereof may be made by the applicant in that form; where that occurs, one copy of the application or part thereof will be sufficient.
(2A)
in addition to the requirements of sub-article (2), a planning application referred to in sub-article (1A) shall be accompanied by –
(a) where it is proposed to connect the development to a public water or wastewater network, or both, evidence that Irish Water has confirmed that it is feasible to provide the appropriate service or services and that the relevant water network or networks have the capacity to service the development,
(b) where, under section 32D of the Act, the planning authority issued an LRD opinion to the prospective LRD applicant that the documents enclosed with the request for the LRD meeting do not constitute a reasonable basis on which to make the LRD application, the LRD application shall be accompanied by a statement of response to the issues set out in the LRD opinion,
(c) a schedule of accommodation that details the number and type of housing units proposed, unit floor areas, bedrooms and bed spaces for the individual units, the private amenity space associated with each unit, the storage space associated with each unit, the principal dimensions and the aggregate floor area of each room and in the case of apartments whether the unit is dual or single aspect.
(d) any information specified by the planning authority under article 16A(7)
(3)
Where the planning authority consents to the making of a planning application wholly or partly in searchable electronic or other electronic form, an application or any part thereof may be made by
Footnote*** [i130]: Paragraph 22(2)(ga) is inserted by article 47(a)(ii) of S.I. No. 296/2018 European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018
Footnote*** [i131]: Amended by article 47(a)(iii) of S.I. No. 296/2018 – European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i132]: Sub-article 22(2A) is inserted by article 7(3) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
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the applicant in that form; where that occurs, one copy of the application or part thereof will be sufficient.
(4)
Subject to articles 24 and 25 –
(a) a planning application in respect of any development consisting of or mainly consisting of the carrying out of works on, in, over or under land or for the retention of such works shall be accompanied by 6 copies of such plans (including a site or layout plan and drawings of floor plans, elevations and sections which comply with the requirements of article 23), and such other particulars, as are necessary to describe the works to which the application relates,
(b) a planning application for any development consisting of or mainly consisting of the making of any material change in the use of any structure or other land, or for the retention of any such material change of use, shall be accompanied by-
(i) a statement of the existing use and of the use proposed together with particulars of the nature and extent of any such proposed use,
(ii) where the development to which the application relates comprises the carrying out of works on, in, over or under the structure or other land, 6 copies of such plans (including a site or layout plan and drawings of floor plans, elevations and sections which comply with the requirements of article 23), and such other particulars, as are necessary to describe the works proposed, and
(iii) such plans and such other particulars as are necessary to identify the area to which the application relates.
(5)
Notwithstanding paragraph (a) of sub-article (4), drawings of floor plans are not required to be submitted in respect of a structure, other than a protected structure or a proposed protected structure that is proposed to be demolished.
Requirements for particulars to accompany an application under article 22. 23.
(1)
Plans, drawings and maps accompanying a planning application in accordance with article 22 shall all be in metric scale and comply with the following requirements:
(a) site or layout plans shall be drawn to a scale (which shall be indicated thereon) of not less than 1:500 or such other scale as may be agreed with the planning authority prior to the submission of the application, the site boundary shall be clearly delineated in red, and buildings, roads, boundaries, septic tanks and percolation areas, bored wells, significant tree stands and other features on, adjoining or in the vicinity of the land or structure to which the application relates shall be shown,
(b) other plans, elevations and sections shall be drawn to a scale of not less than 1:200 (which shall be indicated thereon), or such other scale as may be agreed with the planning authority prior to the submission of the application in any particular case,
(c) the site layout plan and other plans shall show the level or contours, where applicable, of the land and the proposed structures relative to Ordnance Survey datum or a temporary local benchmark, whichever is more appropriate,
(d) drawings of elevations of any proposed structure shall show the main features of any buildings which would be contiguous to the proposed structure if it were erected, whether on the application site or in the vicinity, at a scale of not less than 1:200, as may be appropriate, and where the development would involve work to a protected structure or proposed protected structure, shall show the main features of any buildings within the curtilage of the structure which would be materially affected by the proposed development,
(e) plans relating to works comprising reconstruction, alteration or extension of a structure shall be so marked or coloured as to distinguish between the existing structure and the works proposed,
Commented [i134]: Article 23 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
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(f) plans and drawings of floor plans, elevations and sections shall indicate in figures the principal dimensions (including overall height) of any proposed structure and the site, and site or layout plans shall indicate the distances of any such structure from the boundaries of the site.
(g) any map or plan which is based on an Ordnance Survey map shall indicate the relevant Ordnance Survey sheet number, and
(g) any map or plan which is based on an Ordnance Survey map shall indicate the relevant Ordnance Survey sheet number, and
(h) the north point shall be indicated on all maps and plans other than drawings of elevations and sections and maps or plans referred to in paragraph (g) of the this sub-article.
(2)
A planning application for development consisting of or comprising the carrying out of works to a protected structure, or proposed protected structure or to the exterior of a structure which is located within an architectural conservation area, shall, in addition to meeting the requirements of sub-article (1), be accompanied by such photographs, plans and other particulars as are necessary to show how the development would affect the character of the structure.
(3)
Where a planning authority considers it appropriate it may require an applicant to submit an assessment of the impact of the proposed development on transport in the area, including impact on roads.
(4)
A planning authority may, by notice in writing, require an applicant to provide additional copies of any plan, drawing, map, photograph or other particular which accompanies the planning application.
(5)
In addition to the requirements of article 22, a planning authority may request an applicant to provide a scale model of a proposed development including land and buildings in the vicinity, showing the elevations and perspective of the proposed development and any other photographs, plans, maps, drawings or other material or particulars required by the planning authority to assess an application.
Plans and particulars to accompany application for outline permission. 24.
Notwithstanding article 22(2)(d), an outline application shall, in addition to the requirements of article 22(2), be accompanied only by such plans and particulars as are necessary to enable the planning authority to make a decision in relation to the siting, layout or other proposals for development in respect of which a decision is sought.
Planning application by electricity undertaking. 25.
(1)
Article 22(4) shall not apply to a planning application for development consisting of the construction or erection by an electricity undertaking of overhead transmission or distribution lines for conducting electricity.
(2)
A planning application referred to in sub-article (1) shall, in addition to the requirements of article 22(2), be accompanied by 6 copies of such plans and drawings drawn to a scale of not less than 1:100, as are necessary to describe any form of structure or apparatus which will support, or form part of, the lines referred to in the said sub-article.
(3)
(a) A reference to article 22 in any other provision of these Regulations shall, in the case of a planning application referred to in sub-article (1), be construed as a reference to this article.
(b) Article 23(1), other than paragraphs (g) and (h) thereof, shall not apply to a planning application referred to in sub-article (1).
Procedure on receipt of planning application. 26.
(1)
On receipt of a planning application, a planning authority shall consider whether the applicant has complied with the requirements of articles 18, 19(1)(a) and 22 and, as may be appropriate, of article 24 or 25.
(2)
Where a planning authority considers that a planning application complies with the requirements of articles 18, 19(1)(a) and 22 and, as may be appropriate, of article 24 or 25, it shall stamp each document with the date of its receipt and—
(a) send to the applicant an acknowledgement stating the date of receipt of the application, and
(b) if the application was accompanied by an EIAR, send to the EIA portal in electronic form in the manner set out on the portal—
Footnote*** [i135]: Article 24 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i136]: Article 25 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i137]: Article 26 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i138]: Sub-article 26(2) is substituted by article 48 of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
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(i) a copy of the confirmation notice received in accordance with article 22(2)(ga),
(ii) the reference number of the application on the register, and
(iii) the URL to the documents placed on its website pursuant to section 38(3)(b) of the Act.
(3)
Where, following consideration of an application under sub-article (1), a planning authority considers that-
(a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25 has not been complied with, or
(b) the notice in the newspaper or the site notice, because of its content or for any other reason, is misleading or inadequate for the information of the public,
the planning application shall be invalid.
(4)
Where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b), 19 or 20 have not been met, or the information submitted in the planning application is substantially incorrect or substantial information has been omitted, the planning application shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid.
(5)
A planning authority shall as soon as may be after receipt of an invalid application-
(a) by notice in writing-
(i) inform the applicant that the application is invalid and cannot be considered by the planning authority,
(ii) indicate which requirements of the permission regulations have not been complied with, and
(iii) request the applicant to remove the site notice or notices erected or fixed pursuant to article 17(1)(b).
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(b) return to the applicant the planning application, including all particulars, plans, drawings and maps, and
(c) enter an indication on the register that an invalid application has been made.
(6)
Where a notice is served in accordance with sub-article (5) on an applicant, the planning authority shall return to the applicant any fee paid with the application.
(7)
Sub-articles (3) and (4) shall not apply where the planning authority is satisfied that the applicant complied with the provisions of articles 17, 18 and 19 but that any site notice erected by the applicant has been maliciously defaced or destroyed by any person other than the applicant.
(8)
Where a notice is served in accordance with sub-article (5) on an applicant, the planning authority shall by notice in writing—
(a) inform any person or body who has made a submission or observation in accordance with article 29(1) of that fact and return any fee paid in respect of any such submission or observation, and
(b) inform any body to whom notice was sent in accordance with article 28(2) of that fact.
(9)
On receipt of a planning application, a planning authority shall make the planning application available for inspection, or purchased at a fee not exceeding the reasonable cost of making a copy at the offices of the planning authority during its public opening hours.
Weekly list of planning applications. 27.
(1)
A planning authority shall, not later than the fifth working day following a particular week, make available, and display for inspection on its website, in accordance with sub-article (2) a list of the planning applications received by the authority during that week.
(2)
A list referred to in sub-article (1) shall have a banner heading stating that, under section 34 of the Act, the applications for permission may be granted permission, subject to or without conditions, or refused; that it is the responsibility of any person wishing to use the personal data on
Footnote*** [i139]: Sub-article 25(9) is inserted by article 8 of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
Footnote*** [i140]: Article 27 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i141]: Inserted by article 49 of S.I. No. 296/2018 – European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
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planning applications and decisions lists for direct marketing purposes to be satisfied that they may do so legitimately under the requirements of the Data Protection Acts 1998 to 2018, and shall indicate in respect of each planning application received during the week to which the list relates—
(a) the name of the applicant,
(b) whether the application is for permission for development, permission for retention of development, outline permission for development or permission consequent on the grant of outline permission (stating the reference number on the register of the relevant outline permission),
(ba) where the application relates to an LRD, an indication of that fact,
(c) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(d) the nature and extent of the development, including-
(i) where the application relates to development consisting of or comprising the provision of houses, the number of houses to be provided,
(ii) where the application relates to the retention of a structure, the nature of the proposed use of the structure and where appropriate, the period for which it is proposed to be retained,
(iii) where development relates to a protected structure or a proposed protected structure, an indication of that fact,
(iv) where the application relates to development which comprises or is for the purposes of an activity requiring an integrated pollution control licence or a waste licence, an indication of that fact,
(v) where a planning application relates to development in a strategic development zone, an indication of that fact,
and
Footnote*** [i142]: Amended by article 4 of S.I. 588/2021 Planning and Development (Amendment) (No. 3) Regulations 2021
Footnote*** [i144]: Inserted by article 9(a) of S.I. No. 135/2007 Planning and Development (No. 2) Regulations 2007
Footnote*** [i143]: Some text was deleted here by article 7 of S.I. No. 476/2011 Planning and Development (Amendment) (No. 3) Regulations 2011
Footnote*** [i145]: Some text was deleted here by article 9(b) of S.I. No. 135/2007 Planning and Development (No. 2) Regulations 2007
Footnote*** [i146]: Paragraph 27(2)(ba) is inserted by article 9 of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
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(e) the date of receipt of the application.
(3)
A list referred to in sub-article (1) shall, in addition to the requirements of sub-article (2), indicate any planning application in respect of which—
(a) the planning authority has served a notice under article 26(5),
(b) further information or evidence or revised plans, drawings or particulars have been received by the planning authority pursuant to a requirement under articles 33 or 34.
(4)
A planning authority may include in a list referred to in sub-article (1) any other information in respect of planning applications which the authority considers appropriate.
(5)
(a) The list referred to in sub-article (1) shall, for a period of not less than 8 weeks beginning on the day on which it is made available for inspection, be made available in or at the offices of the planning authority, and in each public library and mobile library in the functional area of the authority, in a position convenient for inspection during office hours and at any other place or by any other means, including in electronic form, that the authority considers appropriate.
(b) Copies of the list referred to in sub-article (1) shall, for a period of not less than 8 weeks beginning on the day on which it is made available, be made available at the offices of the planning authority during office hours, free of charge or for such fee as the authority may fix not exceeding the reasonable cost of making a copy and shall be sent, on request, to any person or body, free of charge or for such fee, not exceeding the reasonable cost of making the copy and the cost of postage, as the authority may fix.
(c) A list referred to in sub-article (1) shall be made available to the members of the planning authority in such manner as they may, by resolution, direct.
Notice to certain bodies. 28.
(1)
Where a planning authority receives a planning application, the authority shall, except in the case of an application in respect of which a notice in accordance with article 26(5) has been or will be
Footnote*** [i148]: Article 28 is substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
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given, send notice in accordance with sub-article (2) as soon as may be after receipt of the application—
(a) where it appears to the authority that the land or structure is situated in an area of special amenity, whether or not an order in respect of that area has been confirmed under section 203 (or deemed to be so confirmed under section 268(1)(c)) of the Act, or that the development or retention of the structure might obstruct any view or prospect of special amenity value or special interest — to An Chomhairle Ealaíon, Fáilte Ireland, and An Taisce — the National Trust for Ireland,
(b) where it appears to the authority that the development might obstruct or detract from the value of any tourist amenity or tourist amenity works—to Fáilte Ireland,
(c) where it appears to the authority that the development—
(i) would involve the carrying out of works to a protected structure or proposed protected structure, or to the exterior of a structure which is located within an architectural conservation area,
(ii) might detract from the appearance of a structure referred to in sub-paragraph (i).
(iii) might affect or be unduly close to-
(I) a cave, site, feature or other object of archaeological, geological, scientific, ecological or historical interest,
(II) a monument or place recorded under section 12 of the National Monuments (Amendment) Act 1994 (No. 17 of 1994),
(III) a historic monument or archaeological area entered in the Register of Historic Monuments under Section 5 of the National Monuments (Amendment) Act 1987 (No. 17 of 1987),
(IV) a national monument in the ownership or guardianship of the Minister under the National Monuments Acts 1930 to 2004, or
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(iv) might obstruct any scheme for improvement of the surroundings of, or any means of access to, any structure, place, feature or object referred to in sub-paragraph (iii),
– to the Minister, the Heritage Council, and An Taisce – the National Trust for Ireland, and in the case of development of a type referred to in sub-paragraph (i) or (ii), An Chomhairle Ealaíon and Fáilte Ireland.
(d) where it appears to the authority that the area of another local authority might be affected by the development — to that local authority.
(e) where it appears to the authority that the development would not be consistent with or would materially contravene any regional planning guidelines (or any objective thereof) of a regional authority—to that regional authority,
(f) where it appears to the authority that if permission were granted, a condition should be attached under section 34 (4)(m) of the Act— to any local authority (other than the planning authority) who would be affected by any such condition,
(g) where it appears to the authority that –
(i) the development might cause the significant abstraction or addition of water either to or from surface or ground waters, whether naturally occurring or artificial,
(ii) the development might give rise to significant discharges of polluting matters or other materials to such waters or be likely to cause serious water pollution or the danger of such pollution, or
(iii) the development would involve the carrying out of works in, over, along or adjacent to the banks of such waters, or to any structure in, over or along the banks of such waters, which might materially affect the waters,
—to Inland Fisheries Ireland and, in any case where the waters concerned are listed in Part 1 of Annex 1 of the Schedule to the British-Irish
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Agreement Act, 1999 (No. 1 of 1999), to Waterways Ireland,
(h) where it appears to the authority that the development might endanger or interfere with the safety of, or the safe and efficient navigation of aircraft — to the Irish Aviation Authority,
(i) where it appears to the authority that the development might interfere with the operation and development of a licensed airport, whose annual traffic is not less than 1 million passenger movements — to the airport operator,
(j) where the development may have an impact on bus or rail-based transport, Córas Iompair Éireann and the Railway Procurement Agency, as appropriate,
(k) where it appears to the authority that-
(i) the development consists of or comprises the formation, laying out or material widening of an access to a national road within the meaning of section 2 of the Roads Act 1993 (No. 14 of 1993), not being a national road within a built-up area within the meaning of section 45 of the Road Traffic Act 1961 , or
(ii) the development might give rise to a significant increase in the volume of traffic using a national road,
— to the National Roads Authority,
(l) where the development might significantly impact on surface transport in the Greater Dublin Area, the Dublin Transportation Office (or any body that replaces that office),
(m) where the development comprises or is for the purposes of an activity requiring an integrated pollution control licence or a waste licence— to the Environmental Protection Agency,
(n) where it appears to the authority that the development might have significant effects in relation to nature conservation—to the Heritage Council, the Minister and An Taisce – the National Trust for Ireland,
Footnote*** [i149]: Substituted by section 8 and Part 11, Item 3 of Inland Fisheries Act 2010 (S.I. No. 10/2010)
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(o) where the development is in a Gaeltacht area and it appears to the authority that it might materially affect the linguistic and cultural heritage of the Gaeltacht, including the promotion of Irish as the community language — to the Minister for Community, Rural and Gaeltacht Affairs and Údarás na Gaeltacht,
(p) where the development is in the vicinity of an explosives factory, storage magazine or local authority explosives store—to the Minister for Justice, Equality and Law Reform,
(q) where the application relates to development for the purposes of breeding or rearing of salmonid fish — to the Minister for Communications, Marine and Natural Resources and Inland Fisheries Ireland,
(r) where the application relates to development for the purposes of initial afforestation or the replacement of broadleaf high forest by conifer species — to the Minister for Agriculture and Food, The Heritage Council and An Taisce – the National Trust for Ireland,
(s) where it appears to the authority that the development might have significant effects on public health — to the Health Service Executive.
(t) where the application relates to extraction of minerals within the meaning of the Minerals Development Acts, 1940 to 1995 — to the Minister for Communications, Marine and Natural Resources.
(u) where it appears to the authority that the development might impact on the foreshore—to the Minister for Communications. Marine and Natural Resources,
(v) where the application relates to the development of energy infrastructure, or may have an impact on energy infrastructure — the Commission for Energy Regulation,
(w) where the development might—
(i) give rise to a significant increase in the volume or type of traffic (including construction traffic) passing under a height
Footnote*** [i150]: Substituted by section 8 and Part 11, Item 3 of Inland Fisheries Act 2010 (S.I. No. 10/2010)
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restricted railway bridge, or using a railway level crossing, or a bridge over a railway,
(ii) because of its proximity to a railway, impact on the structural integrity of railway infrastructure during construction of the development, or
(iii) endanger or interfere with the safe operation of a railway, during or after construction
– to the railway operator, the Railway Safety Commission, and, in the case of development which might impact on a light railway or metro, the Railway Procurement Agency,
(x) where the application relates to—
(i) the extraction of minerals, other than minerals within the meaning of the Minerals Development Acts 1940-1999, whether by surface or underground means,
(ii) the development of, or extensions to, quarries, including sand or gravel pits, for the extraction of earth materials, or
(iii) a development which, for other purposes, requires the excavation of earth materials greater than a total volume of 50,000m3 or the excavation of earth materials on a site area greater than 1 hectare,
— to the Minister for Communications, Marine and Natural Resources,
(y) where it appears to the authority that the development might impact on the provision of public water services — to Irish Water.
(2)
Notice given by a planning authority pursuant to sub-article (1) shall include a copy of the planning application referred to in article 22(1) and of the location map referred to in article 22(2)(b) and shall state-
(a) the date of receipt by the authority of the application, and
(b) that any submission or observation made to the authority in relation to the application before the
Footnote*** [i151]: Paragraph 28(1)(x) is substituted by article 6(1) of S.I. No. 520 of 2013 Planning and Development (Amendment) (No. 2) Regulations 2013
Footnote*** [i152]: Paragraph 28(1)(y) was substituted by article 6(1) of S.I. No. 520 of 2013 Planning and Development (Amendment) (No. 2) Regulations 2013
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decision is made on the application will be taken into account by the authority in making its decision on the application.
(3)
Where a prescribed body which has been notified under sub-article (2) requests a copy of some or all of the documentation accompanying the planning application the planning authority shall make that documentation available to the prescribed body as soon as possible.
(4)
A reference in sub-article (1) to Fáilte Ireland shall, in the case of a planning application relating to land or a structure situated in the functional area of the Shannon Free Airport Development Company Limited, be construed as a reference to that Company.
(5)
The planning authority shall acknowledge any submissions or observations as soon as may be after receipt in the form set out at Form No. 3 of Schedule 3, or a form substantially to the like effect.
(6)
Where a prescribed body to whom notice is sent pursuant to sub-article (1) does not make a submission or observation in relation to an application within a period of 5 weeks beginning on the date of receipt by the planning authority of the application, the authority may determine the application without further notice to that body.
(a) A planning authority may, with the consent of any person or body referred to in sub-article (1), send notice under that sub-article, in electronic form.
(b) Where the planning authority so consents, a submission or observation referred to in sub-article (2)(b) may be made in electronic form.
Submissions or observations in relation to planning application. 29.
(1)
(a) Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application.
(b) Any submission or observation received shall—
Footnote*** [i153]: Article 29 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i154]: Paragraph 29(1)(b) is substituted by article 10 of S.I. No. 135/2007 Planning and Development (No. 2) Regulations 2007
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(i) state the name of the person or body making the submission or observation, and
(ii) indicate the address to which any correspondence relating to the application should be sent.
(2)
Subject to article 26, the planning authority shall acknowledge any submissions or observations as soon as may be after receipt in the form set out at Form No. 3 of Schedule 3, or a form substantially to the like effect.
(3)
Where a submission or observation, under this article, is received by the planning authority after the period of 5 weeks beginning on the date of receipt of the application, the planning authority shall return to the person or body concerned the submission or observation received and the fee and notify the person or body that their submission or observation cannot be considered by the planning authority.
(4)
Where the planning authority so consents, a submission or observation under sub-article (1) may be made in electronic form.
Allowance for public holidays, etc. 29A.
Where a requirement of these regulations requires submissions, observations or a request to be made, or documents, particulars or other information to be submitted to the planning authority within a specified period and the last day of that period is a public holiday (within the meaning of the Organisation of Working Time Act, 1997) or any other day on which the offices of the planning authority are closed, the submissions, observations or request or documents, particulars or other information (as the case may be) shall be regarded as having been received before the expiration of that period if received by the authority on the next following day on which the offices of the authority are open.
NOTE: planning applications, documents accompanying planning applications, and related documents received after an application is lodged must be published by the planning authority on its website in accordance with
S.I. No. 180 of 2020 – Planning and Development Act 2000 (section 38) Regulations 2020
which can be viewed at:
http://www.irishstatutebook.ie/eli/2020/si/180/made/en/pdf
These are not amending regulations and therefore are not a component of this consolidation.
Footnote*** [i155]: Article 29A was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
106
Minimum period for determination of planning application.
30.
A planning authority shall not determine an application for permission until after a period of 5 weeks, beginning on the date of receipt of an application, has elapsed.
Notification of decision on planning application. 31.
Notification of a decision by a planning authority in respect of a planning application shall be given to the applicant and to any other person or body who made a submission or observation in accordance with articles 28 or 29 within 3 working days of the day of the decision and shall specify—
(a) the reference number of the application in the register.
(b) the development to which the decision relates,
(c) the nature of the decision,
(d) the date of the decision,
(e) in the case of a decision to grant a permission – any conditions attached thereto,
(f) the main reasons and considerations on which the decision is based, and, where conditions are imposed in relation to the grant of any permission, the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in section 34(4) of the Act, a reference to the paragraph of sub-section (4) in which the condition is described shall be sufficient to meet the requirements of this sub-article,
(h) in the case of a decision to grant a permission for the construction, erection or making of a structure and to specify the purposes for which the structure may or may not be used — such purposes,
(i) in the case of a decision to grant a permission — any period specified by the planning authority pursuant to section 40 of the Act as the period during which the permission is to have effect,
(j) in the case of a decision to grant a permission – that the permission shall be issued as soon as may be, but not earlier than 3 working days, after the expiration of the period for the making of an
Footnote*** [i156]: Article 30 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i157]: Article 31was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
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appeal if there is no appeal before the Board on the expiration of the said period,
(k) that an appeal against the decision may be made to the Board within the period of 4 weeks beginning on the date of the decision of the planning authority,
(l) in the case of a decision to grant or refuse a permission where the decision by the planning authority is different, in relation to the granting or refusal of permission, from the recommendation in the report or reports on a planning application to the manager (or such other person delegated to make the decision) – the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission, and
(m) in the case of a decision to impose a condition (being an environmental condition which arises from the consideration of the EIAR concerned) in relation to the grant of a permission where the condition is materially different, in relation to the terms of such condition, from the recommendation in the report or reports on the planning application to the chief executive (or such other person delegated to make the decision) — the main reasons for not accepting, or for varying, as the case may be, the recommendation in the report or reports in relation to such condition.
Weekly list of planning decisions. 32.
(1)
A planning authority shall, not later than the fifth working day following a particular week, make available in accordance with sub-article (2) a list of the planning applications in respect of which decisions were given by the authority during that week.
(2)
A list referred to in sub-article (1) shall have a banner heading stating that in deciding a planning application the planning authority, in accordance with section 34(3) of the Act, has had regard to submissions or observations received in accordance with these Regulations and shall indicate, in addition to the matters specified in article 27(2), the nature of the decision of the planning authority in respect of the application.
(3)
A planning authority may include, in a list referred to in sub-article (1), any other information on decisions in respect of planning applications which the authority considers appropriate.
Footnote*** [i158]: Some text deleted here by article 50(b) of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i159]: Substituted by article 50(c) of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i160]: Paragraph 31(m) is substituted by article 50(d) of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i161]: Article 32 is substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
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(4)
(a) The list referred to in sub-article (1) shall, for a period of not less than 8 weeks beginning on the day on which it is made available, be made available in or at the offices of the planning authority, and in each public library and mobile library in the functional area of the authority, in a position convenient for inspection during office hours and at any other place or by any other means, including in electronic form, that the authority considers appropriate.
(b) Copies of the list referred to in sub-article (1) shall, for a period of not less than 8 weeks beginning on the day on which it is made available, be made available at the offices of the planning authority during office hours, free of charge, or for such fee as the authority may fix not exceeding the reasonable cost of making a copy, and shall be sent, on request, to any person or body, free of charge or for such fee, not exceeding the reasonable cost of making the copy and the cost of postage, as the authority may fix.
(c) A list referred to in sub-article (1) shall be made available to the members of the planning authority in such manner as they may by resolution direct.
Chapter 2
PERMISSION REGULATIONS – FURTHER INFORMATION AND OTHER MATTERS
Further information. 33.
(1) Subject to sub-article (1A), where a planning authority acknowledges receipt of a planning application in accordance with article 26, it may, by notice in writing, within 8 weeks of receipt of the planning application, require the applicant—
(a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land), which the authority considers necessary to enable it to deal with the application, or
(b) to produce any evidence which the authority may reasonably require to verify any particulars or information given in, or in relation to, the application.
(1A.)
Notwithstanding paragraph (a) and (b) of sub-article (1), in the case of a planning application for
Footnote*** [i162]: Article 33 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i163]: Amended by article 11(1) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
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an LRD, the planning authority may only request further information in relation to matters of technical or environmental detail, or both, that were unforeseen at the time of the LRD opinion and the time of lodging the LRD planning application, or new matters raised through the planning application public participation process, and such requests for further information with regard to an application for LRD may only be requested once by the planning authority.
(2) Subject to sub-article (2A), a planning authority shall not require an applicant who has complied with a requirement under sub-article (1) to submit any further information or evidence save –
(a) as may be reasonably necessary to clarify the matters dealt with in the applicant’s response to a requirement to submit further information or evidence or to enable them to be considered or assessed,
(aa) where information specified in Schedule 7A is requested pursuant to article 103(1)(b), or
(b) where a request for further information is made under article 108(2) or 128(1).
(2A)
(a) Sub-article (2) shall not apply to a planning application for a proposed LRD.
(b) A planning authority shall not require an applicant for an LRD who has complied with a requirement under sub-article (1) to submit any further information or evidence.
(3) Subject to sub-article (3A), where a requirement under sub-article (1) or sub-article (2) is not complied with within the period of 6 months from the date of the request for further information under sub-article (1), or such additional period, not exceeding 3 months, as may be agreed by the planning authority, the planning application shall be declared to be withdrawn and the planning authority shall, as soon as may be, notify the applicant that the application has been declared to be withdrawn and enter an indication that the application has been declared to be withdrawn into the register.
(3A)
Where in relation to an application for an LRD, a requirement under sub-articles (1) and (1A) is not
Footnote*** [i164]: Amended by article 11(3) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
Footnote*** [i165]: Amended by article 51(a) of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i166]: Paragraph 33(2)(aa) is substituted by article 51(b) of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i167]: Paragraph 33(2A) was inserted by article 11(4) of S.I. No. 716/2021 – Planning and Development (Large-scale Residential Development) Regulations 2021
Footnote*** [i168]: Amended by article 11(5) of S.I. No. 716/2021 Planning and Development (Large-scale Residential Development) Regulations 2021
Footnote*** [i169]: Amended by article 9 of S.I. No. 476/2011 Planning and Development (Amendment) (No. 3) Regulations 2011
Footnote*** [i170]: Paragraph 33(3A) is inserted by article 11(6) of S.I. No. 716/2021 – Planning and Development (Large-scale Residential Development) Regulations 2021
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complied with within the period of 2 months from the date of the request for further information under sub-article (1), or where the request relates to an environmental impact assessment or appropriate assessment or both, such additional period, not exceeding 6 months, as may be agreed by the planning authority, the LRD planning application shall be declared to be withdrawn and the planning authority shall, as soon as may be, notify the applicant that the application has been declared to be withdrawn and enter an indication that the application has been declared to be withdrawn into the register.
Revised plans. 34.
(1)
Where the planning authority, having considered a planning application, is disposed to grant a permission subject to any modification of the development, it may within 8 weeks of receipt of the application, invite the applicant to submit to it revised plans or other drawings modifying, or other particulars providing for the modification of, the said development.
(2)
Where the applicant wishes to avail of the opportunity to submit the revised plans, drawings or particulars referred to in sub-article (1) of this article, he shall, in writing and within such time limit as may be specified by the planning authority, not being later than 8 weeks from receipt of the application, indicate that he intends to submit such plans, drawings or particulars.
(3)
Where the applicant indicates in writing, under sub-article (2) of this article, that he or she intends to submit the plans, drawings or particulars referred to in sub-article (1) of this article, he shall, at the same time and in writing, consent, under section 34(9) of the Act, to the extension of the period for making a decision under section 34(8) of the Act.
Notice of further information or revised plans. 35.
(1)
Where a planning authority receives further information or evidence following a request under article 33, or revised plans, drawings or particulars following a request under article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to the application, and it considers that the information, evidence, revised plans, drawings or particulars received, as appropriate, contain significant additional data, including information in relation to effects on the environment, the authority shall-
Footnote*** [i171]: Article 34 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i172]: Article 35 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
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(a) require the applicant, within a specified period, to publish a notice in an approved newspaper, containing as a heading the name of the planning authority, marked “Further Information” or “Revised Plans”, as appropriate, and stating –
(i) the name of the applicant,
(ii) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(iii) the reference number of the application on the register,
(iv) that significant further information or revised plans, as appropriate, in relation to the application has or have been furnished to the planning authority, and is or are available for inspection or purchase at a fee not exceeding the reasonable cost of making a copy, at the offices of the authority during its public opening hours, and
(v) that a submission or observation in relation to the further information or revised plans may be made in writing to the planning authority on payment of the prescribed fee, not later than 2 weeks after the receipt of the newspaper notice and site notice by the planning authority under (a) and (b) of this sub-article or, in the case of a planning application accompanied by an EIAR, within 5 weeks of receipt of such notices by the planning authority,
and to submit a copy of the notice to the planning authority,
(b) require the applicant, within the period specified in (a) of this sub-article for publication of the newspaper notice, to erect or fix a site notice on the land or structure to which the further information relates, in the form set out in Form No. 4 of Schedule 3 or a form substantially to the like effect and to submit a copy of the notice to the planning authority,
(c) as soon as may be, send notice and a copy of the further information, evidence, revised plans, drawings or particulars, to any person or body specified in article 28, as appropriate, indicating
Footnote*** [i173]: Amended by article 98 of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
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that a submission or observation in relation to the further information or evidence or revised plans, drawings or particulars received may be made in writing to the authority not later than 2 weeks after receipt of the newspaper notice and site notice by the planning authority within the period specified in paragraph (a) or, in the case of a planning application accompanied by an EIAR, not later than 5 weeks after the receipt of the newspaper notice and site notice by the planning authority within the period specified in paragraph (a),
(d) as soon as may be, notify any person who made a submission or observation in relation to the planning application in accordance with article 29(1), indicating-
(i) that significant further information or revised plans, as appropriate, in relation to the application has or have been furnished to the planning authority, and is or are available for inspection or purchase at a fee not exceeding the cost of making a copy, at the offices of the authority during its public opening hours,
(ii) that a submission or observation in relation to the further information or evidence or revised plans, drawings or particulars received may be made in writing to the authority within the period specified in paragraph (a),
(iii) that no fee or further fee shall be payable on condition that any submission or observation referred to in sub-paragraph (ii) is accompanied by a copy of the acknowledgement by the authority of the receipt of a submission or observation referred to in article 29.
(2)
Where a planning authority considers that the notices published in accordance with sub-article (1)(a) and (b) do not adequately inform the public, the authority may require the applicant to give such further notices in such a manner and in such terms as the authority may specify.
(3)
Sub-articles (1)(b) and (c), (2) and (3) of article 19 shall apply to a site notice erected or fixed under sub-article (1)(b).
Footnote*** [i174]: Inserted by article 52 of S.I. No. 296/2018 European Union (Planning and Development)(Environmental Impact Assessment) Regulations 2018
Footnote*** [i175]: Sub-article 35(4) was deleted by article 10 of S.I. No. 476/2011 Planning and Development (Amendment) (No. 3) Regulations 2011
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(5)
The planning authority shall as soon as may be acknowledge receipt of any submissions or observations referred to in sub-article (1)(a)(v) in the form set out at Form No. 3 of Schedule 3, or a form substantially to the like effect.
(6)
(a) A planning authority may, with the consent of any person or body referred to in sub-article (1), send notice under that sub-article, in electronic form.
(b) Where the planning authority so consents, a submission or observation referred to in sub-article (1) may be made in electronic form.
Prescribed notice for material contravention. 36.
(1)
Form No. 5 of Schedule 3, or a form substantially to the like effect, shall be the prescribed form of the notice of the intention of a planning authority to consider deciding to grant a permission in a case where the development concerned would contravene materially the development plan.
(2)
Any person or body may make a submission or observation in writing to a planning authority as regards the making of a decision to grant planning permission in accordance with section 34(6) of the Act not later than 4 weeks after the first publication of the notice referred to in sub-article (1).
(3)
Any submission or observation made in accordance with sub-article (2) shall—
(a) state the name of the person or body making the submission or observation, and
(b) indicate the address to which any correspondence relating to the application should be sent.
(4)
The planning authority shall acknowledge in writing the receipt of any submission or observation referred to in sub-article (1) as soon as may be following receipt of the submission or observation.
(5)
Where a submission or observation is received by the planning authority after the period of 4 weeks after the first publication of the notice referred to in sub-article (1), the planning authority shall return to the person or body concerned the submission or observation received and notify the person or body
Footnote*** [i176]: Article 36 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i177]: Paragraph 36(3) is substituted by article 12 of S.I. No. 135/2007 Planning and Development (No. 2) Regulations 2007
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that their submission or observation cannot be considered by the planning authority.
Withdrawal of planning application. 37.
(1)
A planning application may be withdrawn, by notice in writing, at any time before the giving of the decision of the planning authority in respect of the application.
(2)
The planning authority shall, as soon as may be after the withdrawal of a planning application give notice in writing to any person or body who made a submission or observation on the application in accordance with these Regulations of the fact of the withdrawal.
Provision of forms and instructions. 38.
(1)
A planning authority may provide forms and instructions for the convenience or information of any persons intending to make a planning application.
(2)
The Minister may prepare and publish instructions for the use and guidance of planning authorities in dealing with planning applications.
Provision of certain information to Minister. 39.
Planning authorities shall provide such information in relation to the development management system, including information in relation to planning applications, fees, decisions and enforcement, as may be requested by the Minister or the Central Statistics Office from time to time and such information shall be provided in such format and within such time period as may be specified by the Minister or that Office.
Provision of certain information to Minister regarding housing developments under Section 179A. 39A.
(1)
Planning authorities shall provide to the Minister information on a quarterly basis on the number of proposed housing developments, the number of commenced housing developments and the number of completed housing developments under section 179A(5)(a) to (f) of the Act, which information shall include the number of houses under each category.
(2)
Planning Authorities shall upon request from the Minister, provide information on the number of sites available within their functional area for the provision of houses under Section 179A(5)(a) to (f) of the Act, the location of the sites available and the number of houses that can be accommodated at each site.
Footnote*** [i178]: Article 37 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i179]: Article 38 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i180]: Article 39 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i181]: Article 39A was inserted by article 3 of S.I. No. 101/2023 Planning and Development (Section 179A) Regulations 2023
Cases
Blessington & District Community Council Ltd. Applicant v. Wicklow County Council,
Respondent: Aosog Centres Ltd., Ireland and The Attorney General, Notice Parties
[1997] 1 I.R. 273
[1996 No. 145 J.R.]
High Court 19th July 1996
Kelly J.
19th July 1996
The applicant is a company limited by guarantee which has as its principal objects the promotion of the cultural, environmental and economic well-being of the community that lives in the Blessington area of County Wicklow. In these proceedings, it seeks leave to apply for judicial review of a decision of Wicklow County Council dated the 22nd March, 1995, to grant planning permission to the first notice party, Aosog Centres Limited (Aosog). That permission authorised Aosog to demolish and reconstruct with enhanced facilities an existing outdoor youth centre at Laurel Lodge, Ballyknockan, County Wicklow. Aosog is also a company limited by guarantee and is a registered charity having as its principal objects, inter alia, the provision of facilities for youth work, education and training including the establishment of outdoor adventure centres.
This application was commenced by motion dated the 29th April, 1996.
It is immediately obvious that the application is far outside the two month period prescribed by statute for the commencement of judicial review proceedings which seek to quash a planning permission. (See s. 19 of the Local Government (Planning & Development) Act, 1992).
That two month period is a rigid one and is not capable of enlargement by this or any other court. As was said by Finlay C.J. in K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128 at p. 135:
“The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested to (sic) the Court to extend the time.”
Later in the same judgment, he considered what the intent of the legislature was in imposing this time limit and certain other restrictions on judicial review. He said at p. 335:
“. . . it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.”
The limitation difficulty was recognised by the applicant at the time that it commenced these proceedings. It seeks to surmount it, however, by seeking a declaration that the relevant statutory provisions which impose the time bar are repugnant to the Constitution.
Although the relief concerning the constitutionality of the statute is the first one prayed for, it is clear that it only arises for consideration if I am satisfied that the applicant has, in the words of the same s. 19,”substantial grounds” for contending that the decision is invalid or ought to be quashed. If I am so satisfied, then I must next consider whether the applicant has made out a sufficient case to be permitted to apply for the declaratory relief concerning the constitutionality of the limitation provision. If the applicant does not establish “substantial grounds”, it will not have locus standi to raise the constitutional issue. In this regard, it is to be noted that the complaint of unconstitutionality is based upon the failure of the limitation provision to contain a saver clause whereby aggrieved parties, who are the victims of misrepresentation, fraud, equitable fraud, or mistake can, notwithstanding the expiry of the two month limitation, nonetheless seek to impugn the validity of a planning permission. I will return to this contention later in the judgment.
I will now consider the non-constitutional complaints which are made by the applicant with a view to ascertaining whether or not it has made out”substantial grounds for contending that the decision is invalid or ought to be quashed”.
Before considering each of the complaints in detail, it is desirable that I should make reference to the jurisprudence which has built up on the construction to be given to the phrase quoted in the preceding paragraph which is taken directly from the relevant provisions of s. 19 of the Local Government (Planning & Development) Act, 1992.
In Scott v. An Bord Pleanála [1995] 1 I.L.R.M. 424 at p. 428, Egan J. speaking for the Supreme Court posed himself the question:
“What meaning should be given to the word ‘substantial’?”
He answered it as follows:
“I gain little assistance from the views expressed by various judges in O’Dowd v. North Western Health Board [1983] I.L.R.M. 186 and Murphy v. Greene [1990] 2 I.R. 566 as they were dealing in the main with allegations of factual matters whereas the present case is concerned with a contention of law. I fall back on a word which is so often used as a test in legal matters. It is the word ‘reasonable’ and I suggest, therefore, that the words ‘substantial grounds’ require that the grounds must be reasonable.”
The matter fell for consideration in this Court before Carroll J. in MacNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 at p. 130. In that case, having quoted the passage from the judgment of Egan J. in Scott v. An Bord Pleanála [1995] 1 I.L.R.M. 424, Carroll J. said the following:
“What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the board’s decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are ‘substantial’.”
Most recently in Mulhall v. An Bord Pleanála (Unreported, High Court, McCracken J., 21st March, 1996) McCracken J. cited with approval and followed the views expressed by Carroll J. in MacNamara’s case.
I am bound to follow the decision of the Supreme Court which I believe to have been correctly interpreted and applied by Carroll and McCracken JJ., in the two subsequent cases which I have cited. I therefore approach the case made by the applicant in the light of these judicial interpretations of the provisions of s. 19 of the Act.
There are a number of grounds advanced by the applicant and I will consider each in turn.
Ground No. 1
On the 2nd March, 1994, Aosog made an application to Wicklow County Council for permission to rebuild an existing house to a new plan for an outdoor youth centre and to replace a substandard septic tank with a new tank and peat filtration system. This application was governed by the provisions of the Local Government (Planning & Development) Regulations of 1977. Under art. 14, there was an obligation upon Aosog to publish notice of its intention to make such an application either in a newspaper circulating in the district in which the relevant land or structure was situate, or by the erection or fixing of a notice on the land or structure. Article 15 provided that a notice published in a newspaper should contain, as a heading, the name of the city, town or county in which the land or structure was situate and should state:
“(a) the name of the applicant,
(b) the location of the land or the address of the structure to which the application relates (as may be appropriate),
(c) the nature and extent of the development,
(d) where the application relates to the retention of a structure, the nature of the proposed use of the structure and the period of the proposed retention, or
(e) where the application relates to the continuance of any use the nature of such use.”
Aosog caused to be published in the Irish Press newspaper of the 2nd March, 1994, the following notice:
“Wicklow County Council Planning permission is sought by Aosog Centres for demolition and reconstruction with enhanced facilities of existing outdoor youth centre and replacement of substandard septic tank and percolation area with septic tank and effluent cleansing peat filter bed at Laurel Lodge, Ballyknockan, County Wicklow.”
No notice was erected on the land or structure in question nor indeed was there any necessity to do so given that, under the Regulations of 1977, this was an alternative to publishing notice in a newspaper.
The first ground which is advanced by the applicant relates to the form of this newspaper notice. It will be seen that there is omitted from the name of the developer, Aosog Centres Limited, the word “Limited”.The applicant contends that this misstatement of the full name of the applicant is fatal to the validity of the notice and therefore to the planning application. Reliance is placed by the applicant upon the decision of the Supreme Court in Monaghan U.D.C. v. Alf-A-Bet Promotions Ltd. [1980] I.L.R.M. 64 at p. 69 in support of its contention. In that case, Henchy J. in dealing with the requirements of the Regulations of 1977 said:
“. . . [A]ny deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”
They also rely upon a dictum from Griffin J. in the same case, where he said at p. 73:
“The purpose of the Acts, therefore, is to ensure proper planning and development, not in the interests of the developer, but in the interests of the common good. The primary purpose of the requirements of Articles 14 and 15 in relation to the notice in newspapers is to ensure that adequate notice is given to members of the public who may be interested in the environment or who may be affected by the proposed development, that permission is sought in respect of that development, so as to enable them to make such representations or objections as they may consider proper.”
The applicant also relies upon the judgment of Griffin J. in Crodaun Homes Limited v. Kildare County Council [1983] I.L.R.M. 1 at pp. 2-3. In that case, that judge said:
“As has frequently been pointed out by this Court in recent years the grant or a refusal of a permission for development involves three parties the developer, the planning authority and the public. The primary object of the publication in a newspaper is to ensure that adequate notice is given to enable those members of the public who are interested in the environment, or who may be affected by the proposed development, to ascertain whether they may have reason to object to the proposed development.”
I have no difficulty in following these decisions and indeed am obliged to do so.
However, the County Council and Aosog urge that the omission of the word “Limited” from the name of Aosog Centres Limited in the newspaper advertisement of the 2nd March, 1994, is so trivial, so technical or so peripheral or otherwise so insubstantial as to be excused on a de minimis basis.
In The State (Toft) v. Galway Corporation [1981] I.L.R.M. 439, the Supreme Court had to consider an appeal from Costello J. (as he then was) who had refused to make absolute a conditional order of certiorari in the following circumstances. A grant of planning permission was made by Galway Corporation on the 16th August, 1977. It provided permission to change the user of premises from that of a dwelling house to that of an amusement centre. The grant was made to a company called Spirits Rum Company Limited which was a misdescription of the company’s true title of Rum Spirits Limited. The mistake was due to a genuine error in the preparation of the application for planning permission. The appellant, whose premises adjoined that in respect of which the grant had been made, also carried on the business of an amusement centre. The appellant obtained a conditional order of certiorari directed to the planning authority. The grounding affidavit deposed that Spirits Rum Company Limited was a non-existent company. Costello J. discharged the conditional order holding that, although the application for planning permission had been brought in the name of a non-existent company, it was not a non-existent application and that the mistake made in the applicant’s name had not deprived the corporation of its jurisdiction in relation to the application. The appeal against his order was dismissed. In delivering the judgment of the Court, O’Higgins C.J. at p. 441 cited with approval the following passage from the report of the trial judge:
“I concluded that the Corporation had jurisdiction to make the impugned order. The Regulations provide that the ‘applicant’ is required to publish notice of his intention to make the application (Regulation 14 and Regulation 15), and that the planning application is to be accompanied by the name and address of the ‘applicant’ (Regulation 17), but the mistake made in the applicant’s name in the notices and in the application did not, in my opinion, deprive the Corporation of jurisdiction in relation to the application. ‘Rum Spirits Ltd.’ had authorised the making of an application under the Act of 1963 and the Corporation had before it an application on which it was required to adjudicate. It is true that the application was brought in the name of a non-existent company, but it was not a non-existent application. It is possible that certain errors in applications might be such as to vitiate the entire proceedings under the section and deprive the planning authority of jurisdiction but it seems to me that the mistake made in the present case did neither. The Corporation had before it an ‘application’ which it was empowered to consider and upon which it could adjudicate. The Corporation had power to correct the error by amending its order so as to show the company’s correct name, and s. 8 of the Act of 1963 acknowledged the right of the Corporation to make ‘corrections’ in its planning register.”
O’Higgins C.J. indicated that these were sound reasons to justify the decision of Costello J.
In my view, if anything, the argument made in The State (Toft) v. Galway Corporation [1981] I.L.R.M. 439 was stronger than that which is made by the applicant here. The application which was submitted to the local authority in the present case was made in the name of an entity which does exist and indeed had existed since it was formed in February, 1982. Wicklow County Council had before it not merely an application but one which was brought in the name of an existing company. Accordingly, both the application was existent and the company which sought the permission was existent. The only lacuna was the omission of the word”Limited” from the newspaper notice. I do not regard that omission as being fatal to the validity of the application as is contended for by the applicant. It is difficult to see how anybody could have been deprived of their rights under the Planning Acts by the omission of the word”Limited” from the newspaper notice. I hold that this point is so insubstantial and technical as not to warrant the intervention of this Court. I refuse leave to apply for judicial review on this ground.
Ground No. 2
The second criticism which is made of the newspaper notice by the applicant is one which, at one stage, was shared by Wicklow County Council. It arose in this way. As is clear from the newspaper notice of the 2nd March, 1994, which I have quoted, the premises in respect of which the permission was sought was described as an “existing outdoor youth centre”. As far as the local authority was concerned, however, there was no planning permission extant for the use of the property as an outdoor youth centre. Accordingly, it took the view that the public notice was misleading and required the application to be re-advertised. It did this by letter dated the 24th May, 1994. In the course of this letter to Aosog, the local authority wrongly referred to the provisions of the Local Government (Planning & Development) Regulations, 1994, which came into force on 16th May, 1994, some eight days before that letter was written. The local authority now accept that these regulations did not govern the application for planning permission which was before it.
This letter from the local authority brought about a response dated the 15th July, 1994, from the architects acting on behalf of Aosog. Insofar as this complaint was made, the architects replied as follows:
“The existing building has been used as an outdoor centre for youth work since 1983. This use which has continued for in excess of five years cannot be challenged by way of enforcement by the local authority. The building is readily recognised by the community as an outdoor youth centre. We feel, therefore, that to describe it as otherwise would be misleading. However, in order to facilitate a (sic.) expeditious determination of the application, we are submitting herewith a revised newspaper advertisement, and wish to state that we do so under protest and without prejudice to our claim that the original notice was correct in every respect.”
It should be noted that Aosog did indeed publish a second notice and I will turn to consider its contents in due course. However, I must nonetheless consider the validity of the complaint which is made by the applicant in respect of this alleged misdescription of user.
Both the applicant and the local authority took the view that the notice was misleading because of its description of the premises as an outdoor youth centre. The local authority’s records did not demonstrate that any planning permission had been granted for such use. But the reality of the position was that the premises had been so used for in excess of ten years. Whilst the user was therefore technically unauthorised, it clearly could not be the subject of enforcement proceedings at the suit of the local authority. I accept that whilst the unauthorised use was no longer susceptible to enforcement it nonetheless remained unauthorised. However, it appears to me that if the original use were mentioned in the advertisement, it ran the risk of being misleading because it would not be a fair or accurate reflection of the de facto situation which had obtained for in excess of ten years. I fully accept the primary purpose of the newspaper notice as set forth in the passage from the judgment in Griffin J. in Monaghan U.D.C. v. Alf-A-Bet Promotions Ltd. [1980] I.L.R.M. 64. I think there was a greater risk of the public being misled if the advertisement had made mention of the original authorised use. I regard the approach of both the applicant and the local authority in this regard as being excessively technical. I accept as correct the view expressed by the architects acting on behalf of Aosog set forth in the passage from the letter of the 15th July, 1994, which I have already quoted. In my view, this complaint which has now been taken up by the applicant is so technical as not to amount to substantial grounds within the meaning of s. 19 of the Act of 1992 and accordingly I refuse leave to apply for judicial review on this ground also.
Ground No. 3
All parties accept that at no stage did Aosog erect or fix a notice on the site in respect of which permission was sought. The affixing of such notice was not required under the provisions of the Regulations of 1977, in circumstances where notice was published in a newspaper. However, the erection of such a notice is required under the Regulations of 1994. As I have already pointed out, these regulations came into force on the 16th May, 1994.
Under art. 47 of the Regulations of 1994, it is provided that the relevant part of those regulations shall not apply or have effect in relation to a planning application that is received before the coming into operation of that part and that the Regulations of 1977 shall continue in force and have effect in relation to any planning application that is received before the coming into operation of that part.
The applicant’s argument is that Aosog cannot avail itself of this transitional provision because the application made on the 2nd March, 1994, to the planning authority was fatally flawed by reference to the deficiencies in the newspaper notice.
I have already held that there is no substantial case to be made in respect of that notice. Consequently, the application for permission was not flawed as is contended. If, however, I had concluded that there was a deficiency in the newspaper notice, I would nevertheless have held that there was still a valid application before the planning authority. If such were not the case, then the provisions of art. 23 of the Regulations of 1977 would be meaningless. That is the provision which entitles the planning authority to require an applicant to publish a further notice in a newspaper if it appears to the planning authority that the original notice does not comply with the provisions of art. 15, or that because of its content or for any other reason, is misleading or inadequate for the information of the public. This article, in my view, clearly envisages that the original application remains valid even though the notice in the newspaper was defective. The matter can be put right at the direction of the planning authority by the insertion of a further newspaper notice. But a requirement of that sort from the planning authority does not invalidate in any way the application pending before it.
The transitional provisions of the Regulations of 1994, in my view, are clearly applicable in the present case since the planning application had been received before the coming into operation of the Regulations of 1994. Accordingly, there was no additional mandatory requirement for the erection of a site notice. I refuse leave to apply for judicial review on this ground also.
Ground No. 4
Following the direction given by the planning authority in its letter of the 24th May, 1994, Aosog inserted a second newspaper notice. It did so under protest and without prejudice to its claim that the original notice was correct in every respect. I will now reproduce this second notice which appeared in the Irish Press of the 15th July, 1994.
“Wicklow County Council Permission is sought for demolition of existing building and construction of outdoor youth centre and replacement of substandard septic tank with new tank and peat filtration system at Laurel Lodge, Ballyknockan for Aosog Centres Limited.”
The first complaint which is made in respect of this advertisement is that it is misleading and inaccurate because it fails to specify that the demolition contemplated is of a habitable house. The term “habitable house” had a special meaning assigned to it pursuant to the Local Government (Planning & Development) (Exempted Development & Amendment) Regulations, 1984. (See now the Regulations of 1994). “Habitable house” in the context of those regulations means:
“A building or part of a building which
(a) is used as a dwelling,
(b) is not in use but when last used was used, disregarding any unauthorised use, as a dwelling, or
(c) was provided for use as a dwelling but has not been occupied.”
A number of matters are of relevance in relation to this definition. First, the Regulations of 1984, appear to have as their purpose the removal of housing stock from the category of exempted developments. Secondly, there does not appear to be any express obligation imposed either under the Planning Acts or the regulations made thereunder which requires reference to be made to a habitable house in a newspaper notice concerning proposed development. Thirdly, even if there is a requirement at law to specify in the newspaper notice that it is a habitable house that is sought to be demolished, it is very questionable as to whether the development here involves the demolition of a habitable house within the meaning ascribed to that term under the Regulations of 1984. The evidence is that the building was not being used as a dwelling but was in use as a youth centre. In these circumstances, it is very questionable as to whether it falls within the statutory definition at all. However, I do not base my decision on this aspect of the case on this argument. Rather do I base it upon the principal proposition which is made on behalf of the applicant. The applicant relies on the decision of Cunningham v. An Bord Pleanála (Unreported, High Court, Lavan J., 3rd May, 1990). The Court held that the newspaper notice in that case ought to have included reference to the fact that the demolition of habitable houses was involved in the permission being sought. However, Lavan J. went on to hold that deciding that issue did not decide the case. He considered an answer given by the developer to a question posed on the planning application. The question asked whether the proposal involved demolition or change of use of any habitable house. The developer answered that by replying “not to our knowledge”. The judge characterised that response as one which was most certainly not frank. Nonetheless, he held that the Board was not misled by it. Given that the object of a newspaper notice is as set forth in the judgment of Griffin J. from which I have already quoted can it be said that the omission of the reference to habitable house in the present case misled anybody? The planning authority do not so contend. In fact, they argue that there was no necessity to mention the question of habitable house at all in the newspaper advertisement. But, in my view, the applicant was not misled either. I have come to that conclusion having regard in particular to para. 25 of Mr. Francis Cunningham’s affidavit. Neither he nor in excess of sixty people to whom he spoke in the area was aware of the notice which was inserted in the newspaper on the 19th July, 1994. It is therefore exceedingly difficult to see how they could have been misled by the omission of any reference to a habitable house. Like Lavan J., I therefore conclude that a determination in favour of the applicant on this question is not determinative of the issue before me. In the absence of evidence of anybody being actually misled, I do not believe that the applicant has made out a substantial ground for the intervention of the court.
In any event, my opinion is that it is unlikely that the development involved a habitable house at all. I hold that no substantial grounds have been made out under this heading either.
Ground No. 5
This ground also arises from a criticism of the newspaper notice of the 15th July, 1994. The applicant contends the advertisement indicated that what was being proposed was the demolition of outbuildings in and around the existing Laurel Lodge. It is said that to a reasonable person looking at the notice it would appear that the actual Laurel Lodge itself was not to be demolished.
I do not agree with this criticism. I am of opinion that the newspaper notice was sufficient to indicate that the existing building at Laurel Lodge was to be demolished. It was to be replaced by an outdoor youth centre. In my view, the notice would alert any vigilant interested party to what was contemplated. If they wished to have further information as to precisely what was envisaged, they could have inspected the plans submitted with the planning application. I hold that there is no substantial ground advanced by the applicant to warrant leave being given to apply for judicial review in respect of this complaint.
Ground No. 6
The final ground which was relied upon by the applicant concerns the County Development Plan. The plan was produced at the hearing before me.
Table 19 of the plan sets forth buildings or structures, the preservation of which the planning authority intends to consider in the event of an application being made to alter or demolish them. Part A of table 19 sets out villages or buildings/structures within villages listed for protection. In respect of the village of Ballyknockan, where Laurel Lodge is situate, the feature described in the table is “stone houses and items in quarry village”.The remaining part of table 19 consists of a series of Roman Catholic Churches, Church of Ireland Churches, houses of architectural or historical interest listed for protection and a series of miscellaneous buildings/structures.
The essence of the complaint which is made by the applicant in this instance is that the planning authority was bound to have regard to the development plan in considering the planning application in the instant case. It is said that it failed to do so. It is further said that the matter of the listed buildings in the development plan was not even brought before the County Manager before the decision which is impugned was made. Alternatively, it is said that the planning authority failed to have regard to the County Development Plan and granted permission which was in contravention of it, without going through the statutory procedure which is prescribed if a permission is to be granted which contravenes the development plan.
I fully accept the importance to be attached to the development plan. I agree that it forms an environmental contract between the planning authority and the community. It is not necessary for me to rehearse in detail the statements which have been made both by this court and the Supreme Court concerning the importance of the development plan and the inability of a planning authority to contravene it save where the statutory procedures prescribed for such contravention are adhered to.
In the present case, the obligation undertaken by the planning authority in respect of the stone houses at Ballyknockan was to consider them in the event of an application being made to alter or demolish them.
I am satisfied on the evidence that such consideration was given by the planning authority and that it was fully apprised of what was involved in the application before it in the context of the development plan. I have come to this conclusion for the following reasons.
(1) The affidavit of Desmond O’Brien (the acting senior executive engineer of planning) deposes to the fact that he took due regard of the provisions of para. 5.3 and table 19 of the County Development Plan when considering Aosog’s application. For the sake of completeness, I should say that paragraph 5.3 of the development plan deals with buildings or structures the preservation of which it is an objective of the planning authority to consider in the event of an application being made to alter or demolish them. In other words, the terms of that paragraph are the same as those which govern table 19.
(2) The application for planning permission was accompanied by a letter of the 2nd March, 1994, written by the architects acting for Aosog. That letter dealt in considerable detail with the existing building which was sought to be demolished and set forth a series of reasons as to why it should be demolished. Not only that, but the letter went on to point out that the replacement of the building would result in a maintenance of the character which existed previously and with the existing stone buildings in Ballyknockan. It is difficult to imagine that, in the light of this information, the planning authority was not fully apprised of what was envisaged by reference to the County Development Plan.
(3) The letter of the 29th March, 1994, from the planning authority to Aosog makes it clear that the planning authority knew precisely that what was sought was the demolition and reconstruction of the youth centre. That letter requested further information including drawings in duplicate of the dwelling which was to be demolished.
These last two items of correspondence coupled with the averment made by Mr. O’Brien indicate to me that there is nothing in the complaint which is made by the applicant under this heading. Accordingly, I conclude that I should not grant leave to apply for judicial review on the basis of this complaint either.
I have come to this conclusion without making any determination on the contested question of whether the original building at Laurel Lodge was in fact made of cut stone or not. Even if it was, I am satisfied on the evidence that the planning authority did give consideration, as it was obliged to do under the development plan, to the status of the building which was sought to be demolished. I am further of the view that sufficient information was given concerning this both by means of letters and plans so as to enable the planning authority to give the necessary consideration.
Conclusion
From the above, it is clear that I am refusing to permit judicial review of this planning permission for the reasons already advanced. Even if I had concluded otherwise in respect of all or any of the contentions made by the applicant, the question of the constitutionality of the time bar would remain to be determined. In the course of the hearing before me, that issue was touched upon although I accept that it was not fully argued. I must, however, record that insofar as a complaint was made concerning any lacunae in the newspaper notices which were published, the applicant would, in my view, have great difficulty in attempting to assert an entitlement to seek to have the limitation provision declared unconstitutional. The reason for this view is to be found in the judgment of Finlay C.J. in Brady v. Donegal County Council [1989] I.L.R.M. 282 at p. 293.
In that case, it was asserted on behalf of the plaintiffs that the limitation provision of two months which applied for testing the validity of a planning permission was unconstitutional because of the absence of a saver clause which would enable the court to enlarge the period in favour of a plaintiff in exceptional cases. In other words, it was a case similar to, if not identical with, the case made by the applicant here. The Chief Justice said:
“The whole issue of constitutional validity depends in this case upon the submission with regard to the absence from the subsection of ‘a saver against an exceptional case such as the present one’. If the present case is not exceptional; if the advertisement was duly published and if the ignorance of the plaintiffs was not caused or contributed to by any act, wrongful or otherwise, of the defendant, then the absence of any saver from this subsection has not damnified the plaintiffs nor would its presence have been of advantage to them.”
The same principle as to locus standi applies in this case.
The affidavit evidence deposed to on behalf of the applicant demonstrates that far from the advertisements published by Aosog misleading them, none of the sixty or more persons consulted by Mr. Corcoran nor indeed Mr. Corcoran himself were aware of the second newspaper notice nor were they aware of the proposal to demolish the house until shortly before this application got under way. In the present case, the advertisements were duly published. The ignorance of the applicant and its supporters was not caused or contributed to by any act, wrongful or otherwise, of Aosog. They simply never saw the newspaper notices in question. Therefore, it appears to me that the absence of any saver from the subsection has not damnified the applicant nor would its presence have been of advantage to them. However, I merely make these observationsen passant since the matter was not fully argued before me. However, the evidence which has been adduced on behalf of the applicant would make it difficult in the extreme for it to obtain leave to apply for the declarations of constitutional invalidity which are sought, having regard to the decision in Brady v. Donegal County Council [1989] I.L.R.M. 282.
I refuse leave to apply for judicial review.
Ardoyne House Management Company Limited v. Bardas Ãtha Cliath and An Bord Pleanala,
Respondents, and Legis Limited, Notice Party
[1998]
2 I.R. 147
[1996 No. 412 J.R.]
High Court 6th February 1998
Morris P.
6th February, 1998
This matter comes before the court pursuant to an order of the High Court (Barron J.), dated the 20th January, 1997, whereby the applicant was given liberty to apply for judicial review in respect of a purported decision by the first respondent to grant planning permission to the notice party. The order also made the appropriate provisions for the service of the notice of motion on the notice party.
By order of the High Court (Kinlen J.) of the 21st March, 1997 (Kinlen J.), An Bord Pleanala, the second respondent was restrained from making a determination on an appeal, which the applicant had made to it, against the said purported planning permission, pending determination by this Court of the issues now before it.
The facts of the case may be summarised as follows. On the 3rd May, 1996, an application was made to the first respondent on behalf of the first notice party, who is the developer, for permission to demolish eight garages and replace them with two houses. Objection to the said application was made by the applicant. These objections included the expression of concern which they had, that the site notice and newspaper advertisements were misleading. On the 24th July, 1996, the first respondent served a notice under art. 17(2) of the Local Government (Planning and Development) Regulations, 1994 (hereinafter the “art. 17(2) notice”), in which it is stated that the site notice and newspaper advertisements were inadequate due to the inaccuracy of the address contained therein, and the notice party was directed to publish revised notices and was told that the “effective lodgment date of your application will be the date upon which this notice is complied with”.
In the grounding affidavit of Mr. Brendan O’Connor, architect and planning consultant who advises the applicant, it is stated, and not contradicted, that upon becoming aware of the issuing of the art. 17(2) notice by the first respondent, it was decided to make no further representations to the first respondent pending compliance by the notice party with the notice.
The notice party saw specific difficulties in re-advertising as required by this notice, and Messrs. Freyer and Tayler, Chartered Architects, acting on behalf of the notice party wrote to the Chief Planning Officer on the 2nd September, 1996, setting out the difficulties involved, which were,inter alia, that the addresses, which were required to be inserted in the notice to be published and exhibited on the site notice, did not correctly describe the property in question, and moreover, that the notice party did not own any property at that address on which a site notice could be displayed. It would appear that there is at least some merit in these submissions. The notice party took no steps to comply with the notice by advertising or displaying a site notice as required in the art. 17(2) notice.
The first respondent entered the letter of the 2nd September, 1996, from Messrs. Freyer and Tayler on the planning file and on the 31st October, 1996, the first respondent purported to grant permission for the proposed development. This is the decision which is now challenged.
There are two main issues which come to be determined by the court which can be identified as follows:-
(1) What consequences flow from the service of the art. 17(2) notice in the circumstances of this case, and what effect, if any, does the service of this notice have on the validity of the decision of the first respondent dated the 31st October, 1996, to grant permission for the development?
(2) Does the service of an appeal by the applicant to the second respondent (expressed to be an appeal “without prejudice”) deprive it of its rights to seek relief by way of certiorariin this Court and confine him to seeking his relief before the second respondent?
The first issue
Part IV of the Local Government (Planning and Development) Regulations, 1994, entitled “Permission Regulations” set out, in detail, provisions in relation to notices to be given or displayed prior to the making of a planning application. It vests in the planning authority certain powers, where it appears to it that any notice does not comply with these regulations. In particular art. 17(2), paraphrased, provides as follows:-
“where (a) it appears to a planning authority that any notice . . . does not comply with the requirements of article 15 or paragraphs (b) and (c) of sub-article (1) . . . the planning authority shall require the applicant to give such further notice in such manner and in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement.”
Article 39(c) provides that:-
“[A] planning authority shall not decide to grant or to refuse a permission or an approval until after . . . the expiration of fourteen days beginning on the day on which that requirement has been complied with . . . [in any case where the applicant has been required pursuant to article 17 to give further notice of the application].”
It is the applicant’s submission that once a valid art. 17(2) notice has been served, then an applicant for planning permission has no option but to comply with that notice. It is submitted that there is no provision for the withdrawal of an art. 17(2) notice, and because of the provisions of art. 39, the planning authority has no power to decide to grant or refuse permission until two weeks after the requirements of the notice have been complied with. It is submitted that since the requirements of the notice have not been complied with in this case, the first respondent, had no power to grant permission, as it purported to do on the 31st October, 1996, and it is bad.
I am left in no doubt that this submission is correct. Unlike some of the notices in the planning code, there is no provision in the code for the withdrawal of an art. 17(2) notice. It remains effective until it is either quashed by the court or is complied with. Clearly significant consequences flow from the service of such a notice and great care should be taken prior to the service of such a notice.
The provisions of art. 39 are, in my view, clear beyond any possible doubt that the service of this notice removes from the planning authority the power to make a decision to grant or refuse the permission until 14 days after the requirements of the notice have been complied with. I am satisfied that there has been no effort made by the notice party to comply with the notice. Counsel for the notice party has argued that since it would appear that the original advertisement and site notice accurately set out the location of the property in respect of which the application was made, and since these notices were validly advertised and displayed on site, that there was “effective compliance”. In my view, this submission cannot be correct since while such advertising and display of the site notice may have complied with the requirements of the regulation, it was not in compliance with the art. 17(2) notice and it did not advertise the property as being situate in Pembroke Park as required. Moreover no copy of the revised newspaper notices was provided to the planning authority as required by the notice.
It has been submitted by counsel for the first respondent that the applicant has suffered no prejudice by any default there may have been on the part of the planning authorities, since it already had the opportunity of making three submissions in relation to the permission and would have been unlikely to make any further submissions. He submits that the applicant is seeking to take advantage of no more than a technicality in the planning code.
In my view the question of prejudice is not material to the issues in this case. A consequence of the provisions of art. 17 and art. 39 is that the power of the planning authority to grant or refuse permission, is put in abeyance by the service of the art. 17(2) notice until 14 days after compliance with the notice.
I am satisfied that the submissions made by counsel for the applicant are correct.
The second issue
It has been submitted by both counsel for the first respondent and counsel for the notice party that the applicant, having served notice of appeal to the second respondent, albeit that this notice of appeal was served “without prejudice”, is confined to seeking its reliefs by way of appeal before the second respondent and, on the authorities, this Court should, in the exercise of its discretion, refuse the applicant relief before this Court.
I have had the relevant authorities opened to me by counsel, and I am satisfied on the authority of The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381, that this Court is vested with a discretion.
In my view, in the exercise of this discretion I should have regard to the very clear statement of the law contained in the judgment of Finlay, C.J. in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 when he said at p. 721:-
“It was contended by the respondents that having regard to the decision of this court in The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381, the developers, having lodged a notice of appeal to An Bord Pleanβla against the purported decision of the county manager to refuse permission, should be confined to that remedy, and as a matter of discretion should be refused any relief by way of judicial review. I am satisfied that this contention must fail. The powers of An Bord Pleanala on the making of an appeal to it would be entirely confined to the consideration of the matters before it on the basis of the proper planning and development of the area and it would have no jurisdiction to consider the question of the validity, from a legal point of view, of the purported decision by the county manager. It would not, therefore, be just for the developers who are respondents in this appeal to be deprived of their right to have that decision quashed for want of validity.”
Even prior to this judgment the courts had recognised these principals. Thus in Tennyson v. Corporation of Dun Laoghaire [1991] 2 I.R. 527, Barr J. stated as follows at p. 534:-
“The Oireachtas has provided in the planning code a forum for the adjudication of appeals from decisions of planning authorities within the first category i.e., those relating to planning mattersper se. Such appeals are heard and determined by An Bord Pleanala which is a tribunal having the benefit of special expertise in that area. The court is not an appropriate body to adjudicate on such matters and in my view it ought not to interfere in disputes relating to purely planning matters. However, where the dispute raises an issue regarding a matter of law such as the interpretation of the wording of a development plan in the light of relevant statutory provisions and the primary objective of the document, then these are matters over which the court has exclusive jurisdiction. An Bord Pleanala has no authority to resolve disputes on matters of law.”
In my view the issue that arises in this application, namely whether the power to grant or refuse permission is postponed until after the requirements of an art. 17(2) notice have been complied with, is a pure matter of law. Accordingly, the appropriate tribunal in which the applicant should seek relief is in this Court and the service of a notice of appeal to the second respondent in the circumstances of this case is no bar.
Accordingly, I am of the view that the applicant is entitled to the relief which it seeks.
McCallig v An Bord Pleanála (No. 1)
Consent to Application
[2013] IEHC 60
JUDGMENT of Mr. Justice Herbert delivered the 24th day of January 2013
1. By order of this Court made on the 6th April, 2011, the applicant was granted leave to apply for judicial review for an order of certiorari quashing the decision of the respondent made on the 11th February, 2011, to grant permission, subject to 22 conditions, to the second notice party for a proposed wind-farm development near Glenties, Co. Donegal. Leave was also granted to seek a declaration that the 12th such condition was ultra vires the powers of the respondent on the ground that it was imposed to supplement an inadequate environmental impact statement and, was contrary to a Circular Letter P.D.2/07, N.P.W.S. 1/07, issued by the Department of the Environment, Heritage and Local Government. Leave was also granted to seek injunctive and other reliefs on the grounds stated in the Statement of Grounds verified by the affidavit of the applicant sworn on the 5th April, 2011. A Statement of Opposition was delivered by the second notice party on the 22nd September, 2011, verified by an affidavit of P.J. Molloy sworn on the 22nd September, 2011. A Statement of Opposition was delivered by the respondent on the 5th October, 2011, verified by an affidavit of Chris Clarke sworn on the 5th October, 2011.
2. The Statement of Grounds delivered by the applicant advanced 23 grounds. A number of these grounds were abandoned by senior counsel for the applicant at the hearing before me. I am satisfied that the remaining grounds may be stated in an abbreviated though nonetheless comprehensive form as follows.
3. The applicant asserts that the respondent erred in law and acted without jurisdiction in deciding to grant permission for the proposed development which included lands owned by her without her written consent as required by s. 34 of the Planning and Development Act 2000, and, article 22(2)(g) of the Planning Development Regulations 2001. It also included land owned by a number of other landowners without their written consent.
4. The applicant contends that the respondent erred in law and failed to comply with the principles of audi alteram partem and of natural and constitutional justice in failing to consider properly or at all her submissions regarding this unauthorised inclusion of her land in the proposed development, and/or in accepting an insufficient and erroneous statement dated the 23rd September, 2009, by solicitors that the landowners whose properties were within the site of the proposed development had all entered into a legal agreement to allow their lands to be developed as part of the proposed development, and/or in disregarding as an issue of disputed title her submissions that she had not consented to the inclusion of her said lands in the proposed development.
5. The applicant claims that the decision of the respondent was ultra vires as based upon a fundamental error as to the nature of the site and the lands comprised in the proposed development. She claims that the respondent considered lands to be part of that development which were not in the legal ownership of the second notice party and of which he did not have control. She claims that the respondent acted without jurisdiction in deciding to grant planning permission affecting those lands, imposing conditions which affected them and entering the same in the Planning Register thereby materially devaluing these lands.
6. The applicant submits that the respondent erred in law, and in breach of Council Directive 85/337/E.E.C. of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, O.J. L 175/40 5.7.1985, (as amended), in deciding to grant permission for the proposed development subject to a condition that a management plan be prepared for lands and habitats within the site of the proposed development in order that these lands might be managed in a sustainable way and to benefit local wildlife, in circumstances where information contained in the environmental impact statement with regard to the likelihood of wild birds being significantly affected by the proposed development was found by the respondent’s Inspector to be less than robust and, where further information was not sought and considered by the respondent before reaching a decision to grant permission.
7. The applicant claims that the respondent failed to have regard to Circular Letter P.D.2/07, N.P.W.S. 1/07, from the Department of the Environment, Heritage and Local Government directing that conditions should not be imposed under s. 34(4)(a) of the Planning and Development Act 2000, for the purpose of completing an inadequate environmental impact statement, as such conditions were not a proper compliance with the requirements of Council Directive 85/337/E.E.C., (as amended), and the principle of public consultation enshrined in Council Directive 2003/35/E.C., was rendered nugatory by such conditions.
8. The applicant claims that the environmental impact statement was prepared on the erroneous assumption that no part of the development site was within a Gaeltacht area. That the respondent erred in law in deciding to grant permission for the proposed development, the entire site of which is within an important Gaeltacht area which it is government policy to sustain and promote, without first obtaining and considering information from the second notice party as to whether the cultural heritage of that Gaeltacht was likely to be significantly affected by the proposed development.
9. The applicant claims that the respondent failed to have any or any adequate regard to Council Directive 92/43/E.E.C. of the 21 May, 1992 on the conservation of natural habitats of wild fauna and flora, O.J. L 206/7 22.7.1992, (Habitats Directive) and Council Directive 79/403/E.E.C. on the conservation of wild birds, O.J. L103/1, 25.4.1979, (Conservation of Wild Birds Directive) and that the decision of the respondent to grant permission for the proposed development is contrary to these Council Directives as it was made without any proper or sufficient information on wild birds likely to be significantly affected by the proposed development and in circumstances where the respondent’s Inspector drew attention to the shortcomings of the environmental impact statement in this regard.
10. The applicant submits that the decision of the respondent to grant permission for the proposed development is irrational and contrary to plain reason and to common sense.
11. A lengthy Statement of Opposition was filed in reply by the second notice party. I am satisfied that the grounds of opposition advanced by the second notice party are comprehensively set out in the following paragraphs.
12. The second notice party contends that it was reasonable for the respondent to assume in arriving at its decision to grant permission for the proposed development that the requirements of article 22(2)(g) of the Planning and Development Regulations 2001, had been complied with because Gallagher and Brennan, Solicitors, in a letter dated the 23rd September, 2009, addressed, “To whom it may concern” which was submitted to the first notice party had stated that they represented landowners with properties within the site boundary of the proposed development and confirmed that their clients had given consent in accordance with article 22(2)(g) of the Planning and Development Regulations 2001, to the second notice party to include their lands in the planning application. The second notice party also claims that any dispute as to legal title to the lands claimed by the applicant or any part of them was not a matter for the respondent to determine but was a civil matter which the applicant might litigate in appropriate proceedings.
13. The second notice party denies that any works will be carried out on any part of the applicant’s lands because the second condition attached by the respondent to its decision to grant permission for the proposed development requires that the four turbines nearest to the applicant’s land—T. 32, T.36, T.37 and T.38—be omitted from the proposed development for the stated reasons of reducing the risk of habitat degradation and environmental pollution associated with development in these locations and thereby eliminating any necessity for any development works to be carried out on the applicant’s land as part of the proposed development.
14. The second notice party does not accept that any part of the proposed development site is located in a Gaeltacht area by reason of the fact that the maps annexed to the Co. Donegal Development Plan 2006-2012 do not show any part of the proposed development site as located in a Gaeltacht area and the first notice party did not consider that any part of the development site was in a Gaeltacht area. The second notice party submits that even if the site is within a designated Gaeltacht area, the respondents Inspector considered that the proposed development would not seriously affect the cultural heritage of that area for the reasons stated by her at p. 46 of her Report and it was within jurisdiction and lawful for the respondent to reach its decision to grant permission for the proposed development without seeking further information from the second notice party.
15. The second notice party contends that at pp. 41 to 44 inclusive of her Report the respondent’s Inspector considered in some detail the information furnished in the environmental impact statement regarding aspects of flora and fauna, especially wild birds in the vicinity likely to be significantly affected by the proposed development. While accepting that the respondent’s Inspector considered that an all – year – round survey would give greater confidence, the second notice party submits that the respondent was acting within jurisdiction in considering that the information contained in the environmental impact statement was sufficient.
16. The second notice party submits that the respondent acted within jurisdiction in attaching the 12th condition to the decision to grant permission for the proposed development for the stated purpose of ensuring that lands and habitats within the development site were managed in a sustainable way and to benefit local wildlife, during the construction phase of the proposed development to during its permitted life span. The second notice party contends that this 12th condition is concerned solely with detail and was not an attempt on the part of the respondent to avoid seeking further information.
17. The second notice party contends that there was nothing manifestly irrational or unreasonable in the assessment carried out by the respondent based upon the environmental impact statement and the report of their Inspector such as would warrant an order quashing the decision of the respondent to grant permission for the proposed development. The second notice party submits that the respondent had proper regard to all relevant considerations and that its decision is lawful, within jurisdiction, reasonable and not contrary to common sense.
18. In addition to a general traverse of every claim made in the applicant’s Statement of Grounds the respondent opposes the application for judicial review on the grounds set out in the following paragraphs.
19. The respondent submits that it is not a function of the respondent to determine matters pertaining to the ownership of land or property. Insofar as the applicant for planning permission is required to show title to or an interest in property and, insofar as the respondent must be satisfied as to such title or interest there was sufficient evidence regarding the second notice party’s ownership or control of the subject matter lands before the respondent so as to enable it to make its determination in favour of the second notice party.
20. Without prejudice to the foregoing the respondent does not admit and awaits proof that its decision to grant permission for the proposed development permits of any development on the applicant’s land or imposes any condition or conditions affecting her land or requires management plans for areas including the applicant’s land as alleged by her.
21. The respondent submits that in considering applications or appeals planning authorities and the respondent are required to give primary consideration to proper planning and sustainable development and it is therefore incorrect for the applicant to claim that the decision of the respondent to grant permission for the proposed development will adversely affect any subsequent planning applications in respect of her land. Further, and without prejudice to the foregoing, the respondent submits that the decision to grant permission for the proposed development does not, of itself, permit the carrying out of any development on the applicant’s lands or require the applicant to submit to any restriction as regards the use of her lands so as to comply with any of the conditions imposed by the respondent on the decision to grant permission for the proposed development.
22. The respondent submits that it was exercising its discretion as a specialist body in determining the appeal in the instant case and contends that it had sufficient information on which to make a decision including, the planning application 09/30520, the material that had been before the first notice party, the applicant’s appeal, the submissions thereon, and the report of its own Inspector.
23. The respondent submits that it fully complied with the principles of audi alteram partem and of natural and constitutional justice.
24. The respondent submits that the applicant is not entitled to rely on the provisions of Council Directive 85/337/E.E.C. (as amended) or of Council Directive 92/43/E.E.C. or of Council Directive 97/11/E.C., without pleading and specifying what (if any) provisions thereof transposed into Irish law have been infringed.
25. The respondent submits that it had adequate information in relation to the entirety of the proposed development in making its decision to grant permission. The respondent submits that it did not consider any inappropriate factors or fail to consider any appropriate factors or come to any unreasonable decision on the material before it. The respondent submits that the adequacy or otherwise of the environmental impact statement is a matter for it to determine, and denies that there is any basis for the applicant’s contention that its decision to grant permission for the proposed development was unreasonable or irrational in this regard. The respondent submits that neither the environmental impact statement nor the environmental impact assessments were materially deficient as alleged by the applicant and that it did not err in imposing the 12th condition.
26. The respondent submits that the grounds advanced by the applicant do not amount to substantial grounds and the applicant is therefore not entitled to the reliefs claimed or any of them.
27. By reason of the claim by the second notice party that because of the 2nd condition attached by the respondent to its decision there can be no development on or affecting any part of the applicant’s land and by reason of the non-admission on the part of the respondent that its decision permits any development on or affecting or, imposes any conditions in respect of the applicant’s land, or requires a management plan for areas which include the applicant’s land, the proper construction and scope of the 2nd condition became a significant issue during the course of the hearing of this application. This condition required that:-
“Turbine numbers T.8, T.11, T.32, T.36, T.37 and T.38 shall be omitted from the scheme.
Reason: To reduce the risk of habitat degradation and environmental pollution associated with the development in these locations.”
28. The second notice party submits that the effect of this condition is to render unnecessary and unlawful any development works on or affecting any part of the applicant’s land. This he states is so because the need for such development works,— widening of existing bog roads, surface water drains, road culverts, primary and final settling ponds, pre-buffer settlement areas, staked permeable silt screens and a peat regeneration area,—was predicated upon the construction, operation and maintenance of the four omitted turbines closest to the applicant’s land, that is, T.32, T.36, T.37 and T.38. The second notice party submits that if no development works are required to be carried out on any part of the applicant’s land as a consequence of the decision of the respondent, the applicant should not be granted an order of certiorari even if this Court should find that she had not consented to the making of the application for planning permission.
29. The applicant submits that the omission of these four turbines does not eliminate the necessity for development in the form of a peat regeneration area on her land and that these other works would be necessary to its construction and maintenance. The applicant submits that this peat regeneration area and four other peat regeneration areas form a material part of the overall development which must, by reason of the first condition annexed by the respondent to its decision to grant permission for the proposed development, be carried out and completed in accordance with the plans and particulars lodged with the initial application for planning permission as amended by the further plans and particulars submitted on the 23rd June, 2010, and which included all five of these peat regeneration areas. The applicant submits that the requirement for these peat regeneration areas is not dependent on the inclusion in the overall development of these four turbines or of the other two turbines also required by the terms of this 2nd condition to be omitted.
30. The application for judicial review in the instant case relates solely to the decision of the respondent on the 11th February, 2011, to grant permission for the proposed development. It was common case between the parties that judicial review was not sought by the applicant against any decision of the first notice party. However, it remains necessary to make reference to some of the documents generated and events which occurred prior to the decision of the respondent which the applicant now seeks to impugn. Pursuant to the provisions of s. 128 of the Planning and Development Act 2000, (as substituted), copies of these documents were required to be furnished to the respondent and, in the absence of any evidence to the contrary the court must assume that these documents were so furnished and were considered by the respondent before reaching its decision to grant permission for the proposed development.
31. Following a Notice of Intention to seek planning permission given on the 17th September, 2009, in the Donegal Democrat newspaper, the second notice party on the 25th September, 2009, applied to the first notice party, the relevant planning authority, for planning permission for a wind-farm consisting of 39 very large wind turbines together with a control building, an E.S.B. substation and compound, associated roads and a borrow pit at Glenties, Co. Donegal. The second notice party submitted the prescribed standard form application reflecting the mandatory provisions of article 22(1) of the Planning and Development Regulations 2001, (S.I. No. 600 of 2001). This form at para. 10 provides information regarding the legal interest of the applicant in the land. The following directions are given:-
“If you are not the legal owner state the name of the owner.” and
“A letter of consent from the owner to make the application must be supplied as listed in the accompanying document.”
32. In purported compliance with these directions two documents were submitted with the application for planning permission to the first notice party. The first document was a letter dated the 25th September, 2009, from Harley Newman, Planning and Development Consultants of Letterkenny, Co. Donegal acting on behalf of the second notice party. In the penultimate paragraph of this letter, under the heading “Consent” the author states as follows:-
“All the landowners with lands associated with the proposal have given consent to the applicant, Mr. P.J. Molloy to make the application on their lands in accordance with article 22(2)(g) of the Planning and Development Regulations 2006. Furthermore, they have given consent to have wind turbines located within 500 metres of their dwellings to comply with para. 5.3(1)(g) of the Natural Resource Development Guidelines and Technical Standards as contained in Appendix A of the Donegal County Development Plan 2006-2012. Finally they have given agreement if a predicted noise level of 43 dB(A)La10 is exceeded at any individual dwelling. These consents are contained in the attached letter from their solicitor Gallagher and Brennan.
An individual letter of consent is attached from Mr. Hugh McMonagle, who [sic] house is identified as No. 1 on the map attached with his consent. His consent confirms his agreement to the location of turbines within 500 metres of his house. All the other houses identified on the map are either persons covered by the Gallagher and Brennan consent letter or are located more than 500 metres from any turbine.”
Annexed to this letter is a printed List headed, “Graffy/Mully Wind Farm – Landowners”. This list takes the form of four parallel columns headed, “Landowner”, “Address”, “Folio”, and “Turbine”. I am satisfied on the evidence and I find that the applicant’s name, address and folio number do not appear on this list.
33. The second document is the letter from Gallagher and Brennan, Solicitors, Letterkenny, Co. Donegal. It is dated the 23rd September, 2009, is addressed, “TO WHOM IT MAY CONCERN” and is headed – “Re: windfarm by Mr. P.J. Molloy at Mully/Graffey, Glenties, Co. Donegal”. This letter states as follows:-
“We represent landowners with properties outlined in blue on the drawing submitted in support of the proposed wind farm by Mr. P.J. Molloy at Mully/Graffey, Glenties, Co. Donegal. I wish to confirm that the landowners have all entered into a legal agreement to allow their lands to be developed as part of this wind farm proposal. Having regard to the agreement reached between Jim Harley, Harley Newman Planning Consultants and Mr. Frank Sweeney, Area Manager, Planning Donegal County Council, I wish to confirm that my clients
(a) Give consent in accordance with article 22(2)(g) of the Planning and Development Regulations 2006, to Mr. P.J. Molloy to make the planning application on their lands and,
(b) Give consent to have wind turbines located within 500 metres of their dwellings to comply with para. 53(1)(g) of the Natural Resource Development Guidelines and Technical Standards, as contained in Appendix A of the Donegal County Development Plan 2006-2012.
(c) Give consent if predicted noise level of 43 dB(A)La10 is exceeded at any individual dwelling.”
34. Article 22(2)(g) of the Planning and Development Regulations 2001 (as amended) requires that a planning application shall be accompanied,—where the applicant is not the legal owner of the land or structure concerned,—by the written consent of the owner to make the application. Appendix A of the Donegal County Development Plan 2006-2012 adopted on 11th July, 2006, provides that wind farms must not be located within 500 metres of any dwelling except where written consent of the owner has been obtained.
35. By a Notice dated the 19th November, 2009, given pursuant to the provisions of articles 22, 33 and 34 of the Planning and Development Regulations 2001, (as amended), the first notice party required the second notice party to submit Further Information in relation to the proposed development. At para. 2 of this Notice the first notice party identified five dwellings within 500 metres of turbines in respect of which the consent of the owners had not been submitted and, another six dwellings where the names submitted did not correlate with the landowners. At para. 3(a) of the Notice, the first notice party indicated that consent would be required from any third party landowners for any storm water disposal works affecting their lands. At para. 8(a) of the Notice, the first notice party required the second notice party to submit an appropriate assessment, as outlined in article 6(3) of the Habitats Directive regarding the potential impact of the proposed development on the natural habitats of wild fauna and flora to include measures to reduce and mitigate such impacts. At para. 8(d) of the Notice the first notice party sought a Method Statement in relation to the excavation, disposal and reuse of spoil including how surface water would be managed and controlled in affected areas. At para. 8(f) of the Notice, the first notice party requested a further assessment on possible risks of bog burst, peat instability and additional details on the habitats likely to be impacted upon by the construction of the extensive road network necessary for the proposed development. At para. 8(g) of the Notice, the first notice party sought additional avifauna surveys including winter surveys, breeding bird surveys and a number of vantage point surveys for birds of prey in late spring and autumn. An environmental impact statement had been submitted by Harley Newman on behalf of the second notice party to the first notice party on the 25th September, 2009, and it is a reasonable inference that these requests for further information followed upon a consideration of that document by the first notice party.
36. On the 23rd June, 2010, the second notice party submitted a revised application to the first notice party seeking planning permission for nineteen wind turbines of a smaller type, a control building, an E.S.B. substation and compound and associated site roads and works. This application provided further information to that contained in the environmental impact statement by the addition of the following reports:-
“A report dated April, 2010, by Roger Goodwillie, Applications Ecologist, which addressed the requirements at paras. 8(f) and 8(g) of the Notice as regards avifauna and related habitats.
A report dated June 2010, from Keohane Geological and Environmental Consultancy on the management of excavated materials and risk of peat landslide, addressing the requirements at paras. 8(d) and 8(f) of the Notice in this regard.
A report dated June 2010, from Enviro Centre Limited (U.K.) dealing with hydrology and ground conditions on the site and providing a surface water management plan as required by para. 8(d) of the Notice.”
37. By a letter to the first notice party dated the 16th June, 2010, Harley Newman addressed the issues raised at para. 2 of the Notice.
38. Having considered this further information the Department of the Environment, Heritage and Local Government by a letter dated the 20th July, 2010, addressed to the first notice party, stated its opinion that the proposed development could significantly damage/destroy the fresh water habitats of Freshwater Pearl Mussel, Atlantic Salmon and Otter, all listed species under Annex II of the Habitats Directive, and continued as follows:-
“We have reviewed the Further Information forwarded by Harley Newman, Planning and Development Consultants on behalf of the applicants. This information provided addresses the vast majority of the concerns raised by the Department. We note the further consultations/agreements proposed with the Department in relation to bridge construction and the monitoring programme for the Surface Water Management Plan. However, we believe that the potential impacts in relation to avi-fauna have not been fully addressed. In order to mitigate this potential impact we recommend that the following conditions be attached to the grant of permission:
A management plan is prepared for lands/habitats within the proposed development site in order that these lands are managed in a sustainable way, which may benefit local wildlife. The plan should be agreed with the National Parks and Wildlife Service (Department of the Environment, Heritage and Local Government) and should be adopted prior to the commencement of any onsite development works.”
Kindly forward any further information received, or in the event of a decision being made a copy of the same to the following address . . . .”
39. It was common case at the hearing of this application that the applicant did not raise an issue in her initial submission to the first notice party, made on the 27th October, 2009, that her land had been included in the proposed development site without her consent. She did, inter alia, object to the fact that turbines were located too close to dwelling houses and that the planning application included the consent of only one landowner with a dwelling within 500 metres of a turbine. She referred to the fact that the planning application contained a statement from a solicitor purporting to represent other landowners but objected that this was not a proper consent and did not comply with the requirements of para. 5.3(1)(g) of the Natural Resource Development Guidelines and Technical Standards as contained in Appendix A of the Co. Donegal Development Plan 2006-2012 so that the planning application could not proceed. She objected that the work required to construct the proposed wind farm as it extended over a large site would disrupt or destroy the habitats and nesting areas of wild birds in particular Red Grouse which was an endangered species. She also objected that the planning application and accompanying environmental impact statement failed to consider the effect which the proposed development would have on the local community, its language and culture.
40. Having been furnished by the first notice party with the additional information received by it from the second notice party, the applicant submitted further observations and objections to the proposed development in a letter dated the 27th August, 2010, to the first notice party. Not all of the many matters raised by the applicant in this letter are relevant to the determination of the instant application for judicial review but I find that the following submissions are clearly relevant and therefore I cite them in full:-
“1. Application does not include all required consents
(a) I have not given any consent to the developer to enter or utilise my land (Folio No. 61730F of Co. Donegal) in any way for the development of this wind farm. The plans submitted clearly indicate that my land is proposed to be used for access and drainage. No consent has been sought or granted for these or other activities on or near my land. Indeed the works proposed pose a serious threat to the integrity of my land and would undermine the right of support any landowner has from his neighbours.
9. HABITATS
The level of construction activity involved in a development of this nature is clearly outlined in the various reports accompanying the application. There is no doubt that habitats will be destroyed. The lack of emphasis on detailed bird surveys is unacceptable considering the excellent range of bird species that the surrounding landscape supports. There is no reference to the Lough Nillan Bog S.P.A., south of the proposed site neither is there is any mention of a grouse conservation project occurring north of the proposed site. There is no justification for these omissions.
10. These glens are in the Gaeltacht Lar.
11. This is a thriving community of Gaeilgeoiri. The majority of residents have spent their lives here and daily conversations are conducted tri Ghaelige. Residents recognise the value of their language and culture and community effort has helped to develop and preserve it for future generations. There is evidence of this marvellous work throughout the community. The primary school is a state of the art building and there is an increase in enrolments. Many festivals are held in the community to celebrate the music, dance and folklore of the area. The Gaeltacht has shown continued growth in the past ten years. Families with roots in the area are deciding to reside here. We need this trend to continue in order to continue to preserve the language and culture. There will be a negative impact on these glens as is evident from the volume of submissions if the proposed development proceeds. People will relocate or decide not to live here in the first place. Depopulation is the last thing the Gaeltacht Lar needs.”
41. The Assistant Planner of the first notice party in a report to it noted that a large number of submissions had been received from third parties after the circulation of the further information received from the second notice party. While agreeing that the avifauna surveys had not been completed to the satisfaction of the Department of Environment, Heritage and Local Government the Assistant Planner recorded that with a view to mitigating any potential impact in relation to avifauna the Department required a condition providing for a management plan to be attached to any decision to grant permission for the proposed development. The Assistant Planner noted that the applicant claimed that her consent had not been obtained to the inclusion of her land in the proposed development. The recorded response of the Assistant Planner to this submission by the applicant is as follows:-
“Objector Margaret McCallig submitted a Folio No. 61730F but did not include a map with this to enable the planning authority to identify the land in her ownership. The planning authority is therefore precluded from confirming at this stage if the development site encroaches the objector’s land and it is also noted that this observation was not raised in the objector’s submissions to the Council.”
I find this a most extraordinary and deeply disturbing conclusion, but as judicial review is not sought against the first notice party I shall not consider it further.
42. The Assistant Planner of the first notice party recommended that permission be granted for the proposed development but limited to eighteen smaller type turbines and subject to a large number of conditions, one of which,—No. 23—was expressed as follows:-
“A Management Plan shall be prepared for the lands/habitat within the development site in order to ensure that these lands are managed in a suitable way in order to benefit all local wildlife. This plan shall be agreed with the National Parks and Wildlife Service and a copy of the plan following agreement with the National Parks and Wildlife Service shall be forwarded to the planning authority for written agreement:
Reason: To preserve the conservation value of the area.”
43. On the 15th September, 2010, the first notice party made a decision to grant permission, (Order: 2010P. 60453) for the proposed development, (Reference No. 09/30520), but limited to eighteen smaller type turbines and subject to 27 conditions, one of which was in the same terms as the 23rd condition suggested by the Assistant Planner. This decision was notified to the applicant on the 15th September, 2010.
44. By a Notice of Appeal, which extends to 34 pages and is dated the 8th October, 2010, the applicant appealed to the respondent from this decision of the first notice party. Relevant to the instant application the applicant submitted that the original application for planning permission was substantially incorrect and invalid and should be set aside despite the acknowledgement sent by the first notice party to the second notice party because the site identified in the application in compliance with the provisions of article 22(2)(b) of the Planning and Development Regulations 2001, encroached on her land without her consent as required by the provisions of article 22(2)(g) of those Regulations. The applicant identified the proposed development affecting her lands as, a site road, surface water drain, road culvert, primary and final settling ponds, pre-buffer settlement area and peat regeneration area. The applicant annexed to her appeal a letter dated the 5th October, 2010, from her solicitor, Cathleen Dolan, Donegal Town, addressed to the respondent to which was attached a print-out of Part 1(A) – DESCRIPTION OF THE PROPERTY and Part 2 – OWNERSHIP, of Folio 61730F. Co. Donegal and of the Folio Map of the said property. This letter stated as follows:-
“We act for Margaret McCallig who is the registered owner of folio 61730F Co. Donegal. Our client is objecting to the Planning Permission granted for Wind Turbines at Graffy Mully, Glenties, to P.J. Molloy under reference 09/30520.
It is clear from the application lodged that some of the proposed works to be carried out under the terms of that Planning Permission impinge on our client’s lands which are comprised in folio 61730F Co. Donegal and in that regard we enclose a copy of their Land Registry Map showing the area on which it encroaches edged red.
No permission has been granted by our client to the Applicant or to any other person to carry out works on her land. Also the access road is not a county road. It is what is termed in this area as “bog road” which means that the only people who have the right to use that road are the people who cut turf in that area. There is no general right of way over that road and no right of way and no general right of way will be granted by our client to the Applicant for the works which are proposed to be carried out.
We also refer to the letter in the original application from Gallagher Brennan Solicitors proposing to act for all the Landowners. Gallagher Brennan do not and never did act for our client and should not have referred in their letter to acting for all the Landowners affected thereby.”
45. The applicant also objected that other landowners within the red and the blue lines were not shown to have given written consent to the inclusion of their land in the planning application. She stated that the list of landowners annexed to the letter of the 25th September, 2009, from Harley Newman to the first notice party does not include all the landowners within those boundaries and that Gallagher Brennan Solicitors in their document dated the 23rd September, 2009, claimed only to represent “landowners” but not all landowners within these boundaries. She submitted that the first notice party had misinterpreted these documents as statements that all landowners within the red and the blue lines had given consent to their lands being developed as part of the proposed development.
46. The applicant submitted to the respondent that the entire site of the proposed development was within a Gaeltacht area and that the statement to the contrary at p. 81 of the environmental impact statement was incorrect. She referred to the provisions of Statutory Instrument No. 245 of 1956: Gaeltacht Areas Order 1956 and, to a letter, “To whom it concerns” dated the 1st October, 2010, from the regional office of the Department of Community, Equality and Gaeltacht Affairs certifying that the townlands of Graffy, Mully and other adjoining townlands are in the Gaeltacht area. The applicant submitted that it was Government policy and an objective of the Co. Donegal Development Plan 2006-2012 to protect and support the cultural heritage of this Gaeltacht area, in particular by conserving its unique cultural identity by appropriate land use policies and by other indicated policies. She submitted that the environmental impact statement accompanying the planning application, in breach of Council Directive 85/337/E.E.C., as amended by Council Directive 97/11/E.C. (Environmental Impact Assessments) failed to contain any information regarding the direct or indirect effects of the proposed development on this cultural heritage. This part of the applicant’s submission to the respondent extended over three pages.
47. The applicant submitted that the bird survey and report incorporated into the environmental impact statement and the further survey and report submitted in response to the Notice for Further Information were insufficient for the first notice party or the respondent to make a proper assessment of the likely impact of the proposed development on the environment. She objected that these surveys were not sufficiently comprehensive as regards the presence on the area of the proposed development of breeding birds and raptors and, that no assessment had been carried out as to the impact of the wind-farm, including aviation warning lights, on birds in the vicinity. The applicant objected that the first notice party had endeavoured to compensate for these shortfalls and failings and for their own inability to appropriately assess the environmental impact of the proposed development on avifauna, mammals, flora and peatlands by attaching conditions and, in particular Condition 23, to their decision to grant permission for the proposed development. The applicant submitted that this infringed the provisions of Council Directive 85/337/E.E.C., as amended by Council Directive 97/11/E.C,, which required an actual assessment to be undertaken on foot of sufficient information and not, where insufficient information for that purpose was provided in the environmental impact statement, avoided by imposing mitigatory conditions.
48. By a submission dated the 9th November, 2010, Harley Newman responded to the various third party appeals to the respondent against the decision of the first notice party. On the issue of consent, they responded as follows:-
“1. (Application is invalid, as landowners have not given consent.)
Prior to the application being submitted, the matter of the significant number of consents to enable a valid application to be made was discussed with the planning authority. The planning authority advised that it would accept a letter from a solicitor confirming that he represented the landowners of the properties within the blue line demarcated on the plans submitted with the application and also confirming that the landowners had consented to the applicant making the application. The planning application was submitted with the confirmation letter from Gallagher and Brennan Solicitors dated the 23rd September, 2009, (Appendix A) with the confirmations requested by the planning authority. It is considered that the confirmation of consent contained in the solicitor’s letter adequately addresses article 22(2)(g) of the Planning and Development Regulations 2006.
It is respectfully considered that any dispute as to the legal title to lands associated with the proposed development is a civil matter, resolution of which is not within the remit of the Board or the planning authority and this is highlighted by s. 34(13) of the Planning and Development Act 2000, which states that:
‘A person shall not be entitled solely by reason of a permission under this section to carry out any development.’”
49. The following is their response to the submission that the environmental impact statement failed to address the question of whether the cultural heritage of a Gaeltacht area was likely to be significantly affected by the proposed development:-
“2. (ABSENCE OF A CULTURAL AND LANGUAGE IMPACT.)
The potential impacts of the development on the Gaeltacht, was assessed by the applicant on the basis of the Donegal County Development Plan 2006-2012 and more particularly on Map 11 of the Plan, which among other things identifies the extent of the Gaeltacht area. No part of the proposed development was located within the Gaeltacht area and this was confirmed by the planning authority in its assessment of the submissions made to it in relation to the proposed development. It would be unreasonable that the applicant should include a language impact assessment on lands not designated by the planning authority as a Gaeltacht.”
50. In response to the objection that the environmental impact statement and the avian surveys had failed to address adequately the question of whether the proposed development was likely to have a significant impact on habitats, ground mammals and birds, Harley Newman submitted a further report from Roger Goodwillie, dated the 8th November, 2010, and a further report from Keohane, Geological Environmental Consultancy, dated the 4th November, 2010, which considers inter alia, loss of habitats. Harley Newman submitted that the information contained in the environmental impact statement, in the further information furnished to the first notice party and in this response to third party appeals to the respondent provided sufficient information to enable the respondent to carry out a full and proper environmental impact assessment in accordance with Council Directive 85/337/E.E.C. (as amended).
51. In a letter to the respondent dated the 4th November, 2010, the first notice party responded to the various third party appeals against its decision (No. 09/30520) to grant permission for the proposed development. The first notice party stated that it was satisfied that the application submitted to was valid in accordance with the provisions of the Planning and Development Regulations 2001-2008. The first notice party submitted that on the basis of information furnished with the application and in response to its Notice for Further Information it was satisfied that the relevant consent had been given by all owner/occupiers of dwellings within 500 metres of any turbines and that consent had been provided by all landowners upon whose lands the turbines were to be located. The first notice party accepted that there was no assessment of the impact of the proposed development on the Gaeltacht area but considered that a development of the nature of the proposed development would not have a detrimental impact on the cultural linguistics of this Gaeltacht area. On the issue that the bird surveys were unduly limited and therefore insufficient the first notice party submitted that:-
“The Department of the Environment, Heritage and Local Government requested that a Management Plan would be prepared by the applicant for the lands/habitat within the development site in order to ensure that these lands are managed in the sustainable way in order to benefit all local wildlife. This plan must be agreed with the National Parks and Wildlife Service, which must be satisfied that the proposal considers the impact upon wildlife and habitat.”
52. The respondent’s Inspector submitted a 53 page report on the 31st January, 2011. In this report she records that she carried out an inspection on the 16th November, 2010 and the 17th January, 2011. In the first 34 pages of this report the Inspector summarises tersely but comprehensively the planning history of the matter, the contents of the various third party appeals, the response of the first notice party and the second notice party to these appeals, the provisions of the National Renewable Energy Action Plan, and Planning Guidelines—Wind-Farm Development and the Co. Donegal Development Plan 2006-2012. Her assessment commences at p. 35 of the report and concludes at page 49. The Inspector recommended that permission be granted subject to 22 specified conditions for a development of 19 smaller types turbines. In setting out the reasons which informed this recommendation the Inspector stated she:-
“Considered that subject to compliance with the conditions set out below, the proposed development would not seriously injure the visual or residential amenities of the area, would not adversely affect the natural or cultural heritage of the area, would be acceptable in terms of traffic safety and convenience and would be in accordance with the proper planning and sustainable development of the area.”
53. The respondent adopted the reasons and accepted the recommendations of its Inspector expressed in her report. Of the 22 conditions attached by the respondent to the decision to grant permission for the proposed development four—Conditions 1, 2, 12 and 13—played a central role in this application for judicial review and some others—Conditions 4, 6, 9, 10, 14 and 15 were also referred to in the course of argument. The provisions of Conditions 1, 2, 12 and 13 are as follows:-
“1. The development shall be carried out and completed in accordance with the plans and particulars lodged with the application, as amended by the further plans and particulars submitted on the 23rd day of June, 2010, except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with the planning authority, the developer shall agree such details in writing with the planning authority prior to the commencement of development and the development shall be carried out and completed in accordance with the agreed particulars.
REASON: In the interests of clarity.
2. Turbine Nos. T8, T11, T32, T36, T37 and T38 shall be omitted from the scheme.
REASON: To reduce the risk of habitat degradation and environmental pollution associated with development in these locations.
12. A management plan shall be prepared for lands – habitats within the site in order that the lands are managed in a sustainable way and to benefit local wildlife. The plan shall provide for a programme of ecological monitoring (including for avifauna) to be carried out on the site, by a suitably qualified specialist during construction and for a period following the commissioning of the development. The plan shall be agreed with the National Parks and Wildlife Service and shall be submitted to and agreed in writing with, the planning authority prior to the commencement of development.
REASON: To ensure appropriate management of habitats within the site.
13. Rock and soil excavated during construction shall not be left stock piled on the site following construction works. Details of the treatment of the excavated material shall be in accordance with the details submitted to the planning authority on the 23rd day of June, 2010 and with the detailed requirements of the planning authority.
REASON: In the interests of visual amenity.”
54. Condition 4, provides, inter alia, that the permission shall be for a period of 25 years from the date of the commissioning of the wind turbines, unless prior to the end of that period permission shall have been granted for the retention of the turbines and related ancillary structures for a further period. Condition 6, requires that prior to the commencement of development detailed design proposals for the proposed access roads and turbine bases shall be agreed with the first notice party. Condition 9, in the interests of amenities, environmental protection and public safety, stipulates that prior to the commencement of the development a Construction Management Plan shall be submitted to the planning authority for written agreement. This plan must provide details of intended construction practice for the development, including hours of working, noise management measures, off-site disposal of construction/demolition waste and proposals to ensure slope stability during the construction of access roads and turbine bases. Condition 10, requires that surface water discharged from the site be managed in accordance with the Surface Water Management Plan submitted to the first notice party on the 23rd June, 2010, and with the detailed requirements of the first notice party. Condition 15, imposes a similar obligation as regards road works: that they be carried out in accordance with the details submitted to the first notice party on the 23rd June, 2010 and with the detailed requirements of the first notice party. Condition 14, in the interests of traffic safety and public amenity requires, inter alia, that prior to the commencement of development a detailed traffic management plan be agreed with the first notice party.
55. In the present case the challenge, by way of judicial review, is solely in the decision of the respondent and not to any decision of the first notice party. Nonetheless the alleged failure of the first notice party as planning authority to declare invalid the permission application of the second notice party for non-compliance with the provisions of article 22(2)(g) of the Planning and Development Regulations 2001 (as amended) is the basis for a major part of the applicant’s challenge in this application. I am unable to accept the submissions made on behalf of the respondent and the second notice party that this Court should not consider an application for judicial review taken against the respondent rather than the first notice party where the basis of the application is some alleged infirmity in the procedures adopted by the first notice party during the first stage of the two-stage planning process. Senior counsel for these parties submitted that this alleged defect in the application for permission by the second notice party and, the alleged defect in the procedures adopted by the first notice party in examining and determining that application, were not matters to which the respondent could have had regard in considering the appeal to it by the applicant from the decision of the first notice party. The respondent, senior counsel said, could consider the matter only on the merits by reference to planning and development criteria, and it could not look behind the statutory acknowledgment sent by the first notice party to the second notice party pursuant to the provisions of article 26(2) of the Planning and Development Regulations 2001, (as amended).
56. This latter provides that where a planning authority considers that a planning application complies, inter alia, with the provisions of article 22, it shall stamp each document with the date of its receipt and send to the applicant an acknowledgment stating the date of receipt of the application.
57. Second 37(1)(b) of the Planning and Development Act 2000 (as amended) is as to the following material provisions in identical terms to s. 26(5) of the Local Government (Planning and Development) Act 1963:-
“. . . the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the board shall operate to annul the decision of the Planning Authority as from the time when it was given; . . .”
58. In the course of his judgment in O’Keeffe v. An Bord Pleanála and Others [1993] 1 I.R. 39, at 52, Costello J., construed these words as indicating that the respondent, “is determining the matter de novo and without regard to anything that had transpired before the planning authority”, and he continued:-
“The Oireachtas clearly intended that if a notice of appeal was served within the statutory period then the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what had happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose any constraints, on the proceedings before the Board.”
59. This aspect of the judgment of Costello J. was unaffected by the decision of the Supreme Court in that case, (pp. 65-80). It was accepted in Hynes v. An Bord Pleanála, Galway Corporation and the Attorney General [1998], (Unreported, High Court, McGuinness J., 10th December 1997) by McGuinness J. as an authoritative statement of the law. That the question at issue before McGuinness J. in that case was very similar to the question at issue before me in the instant case may be seen in the following passages from the judgment:-
“Senior Counsel for the Applicant, Dr. Forde, submitted that the planning application made by the Developer on 12th June, 1996, was fundamentally flawed from the very outset in that the Developer stated on the planning application form simply that he was the ‘owner’ of the land in question. No reference whatever was made on the form to the fact part of the land was owned by Galway Corporation, nor was there any indication as to whether the Corporation was consenting to a planning application being made in respect of its land. The required content of a planning application is set out in Article 18 of the Local Government (Planning and Development) Regulations 1994 (S.I. No. 86 of 1994). Under Article 18(1)(d) it is provided that ‘a planning application shall – give particulars of the interest in the land or structure held by the Applicant and, if the Applicant is not the owner, state the name and address of the owner’. Counsel submitted that this regulation is mandatory rather than directory in nature and he referred to Monaghan U.D.C. v. AIf-a-Bet [1980] I.L.R.M. 64.
Dr. Forde also referred to the decision of the Supreme Court in Frescati Estates Limited v. Walker [1975] I.R. 177, and in particular to the passage in the Judgment of Henchy J. (at p. 190) where the learned Judge stated
‘. . . consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question’. Counsel submitted that, on its face, the Developer’s application was by this standard invalid. No indication that the Corporation was consenting to the application appeared on the Planning File (the only documentation open to the public) until 11th June, 1997, when Mr. O’Neill’s letter dated 2nd December, 1996, was placed on the file. This post-dated the Corporation’s decision on the application and only shortly pre-dated the Board’s decision of the 25th June, 1997.”
60. Article 22(2)(a) of the Planning and Development Regulations 2001 (as amended), now goes further and requires that the applicant must either be the legal owner or have the written consent of the owner.
61. In Hynes v. An Bord Pleanála and Others, Senior Counsel for An Bord Pleanála, whose argument was adopted by Senior Counsel for the Planning Authority, submitted that any defect in the original application and any defect in the procedures of the Corporation were irrelevant. The decision of the Corporation made on the 10th December 1996, to refuse planning permission gave jurisdiction to the Board to adjudicate on the developer’s appeal. The Board could not go behind the decision of the Planning Authority even to consider the validity of the original application. The Board properly considered the matter in the light of planning and development criteria only.
62. This submission was rejected by McGuinness J. in the following terms:-
“There remains the question of the validity of the Developer’s original application. While the Judgment of Costello J. in the O’Keeffe case makes it clear that it is the decision of the Planning Authority that founds the jurisdiction of An Bord Pleanála, no question of the validity of the original application arose in that case, and I would not interpret the Judgment as meaning (as suggested by Mr. Collins) that An Bord Pleanála could simply ignore a situation where the original planning application was clearly invalid. I accept that the primary duty of vetting a planning application and ensuring that it is in accordance with the relevant regulations lies with the Planning Authority but one must ask whether An Bord Pleanála would have jurisdiction to adjudicate on an appeal where the application on its face was one which would be considered invalid under the criteria set out by the Supreme Court in the Frescati case? Surely the answer must be no, particularly bearing in mind the cross reference from s. 26(5) to s. 26(1) of the Act of 1963. It seems to me, therefore, that I should consider the validity or otherwise of the Developer’s original planning application. This may be looked at firstly in the context of the criteria established in Frescati v. Walker and secondly in the context of the 1994 Regulations.”
63. This decision of McGuinness J. was followed by Quirke J. in Seery v. An Bord Pleanála and Others, (Unreported, High Court, Quirke J., 26th November, 2003, at pp. 17-22). I am also satisfied that the law in this respect is correctly stated by McGuinness J.
64. I find that the facts to which I have adverted establish that the applicant objected in her appeal to the respondent that the second notice party did not have her written consent to include any part of her land within the blue line so that his application for permission for development on or affecting that land was invalid. I am satisfied that the procedure adopted by the respondent in declining to consider this matter, raised specifically by the applicant in her appeal and referred to by the respondent’s Inspector in her report at pp. 13, 29 and 30, was unfair and incorrect. The respondent had jurisdiction to consider this. I find that in as much as the respondent considered that the second notice party had established a sufficient interest to make a valid application for development on or affecting the applicant’s land it proceeded upon a material error of fact which rendered its procedures unfair.
65. I find that the applicant is, and has since the 22nd April, 2005, been the full owner in possession with an absolute title of the lands comprised in Folio 61730F, Co. Donegal. I do not know how or by reference to what evidence it was claimed on behalf of the second notice party that her title was in dispute and that therefore her claim that she had not consented to the inclusion of the lands in Folio 61730F, Co. Donegal in the proposed development was not something within the competence of the respondent or the first notice party to decide. I find that a part of these lands was included within both the red line and the blue line shown on the location map submitted by the second notice party with his application to the first notice party for permission for the proposed development as required by article 22(2)(b) of the Planning and Development Regulations 2001 (as amended). This sub-article requires that this location map must to so marked as to identify clearly:-
“(i) The land or structure to which the application relates and the boundaries thereof in red, and,
(ii) Any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant or the person who owns the land which is subject of the application in blue.”
66. This latter provision is if very great importance as s. 34(4)(a) of the Planning and Development Act 2000 (as amended) provides that the planning authority and s. 37(1)(b) of that Act, the Board, in deciding to grant permission for the development of land may include conditions for regulating the development or the use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant, if the imposition of such conditions appear to be expedient for the purpose of or in connection with the development authorised by the permission. In the instant case, the first and the thirteenth conditions attached by the respondent to its decision to grant permission for the proposed development come within this category as regards the establishment of a peat regeneration area on part of the applicant’s lands contained within the blue line shown on the location map submitted by the second notice party.
67. I find that the purported form of consent provided by Gallagher Brennan, Solicitors to the first notice party was totally unsatisfactory and should not have been accepted by the first notice party. Neither the landowners said to be represented by that firm nor the extent or location of their respective lands within the blue line is identified. This is contrary to the clear object of article 22(2)(g) which is to enable the planning authority to be satisfied before considering an application for planning permission that the applicant is either the legal owner of all the land or has written consent from the owner of every part of the land subject to the application because otherwise the application is invalid and should not be entertained. (See Frascati Estates Limited v. Walker [1975] I.R. 177, at 190-191 per. Henchy J. for the Supreme Court).
68. As is stated in “The Laws of England”, Earl of Halsbury, 1st Ed. 1909 (Vol. 10) paras. 760-762 inclusive and, repeated in all subsequent editions, authentication by signature is practically essential to a consent in writing and is usually essential to give it legal effect even where the statute— in the instant case the Statutory Instrument—which requires the consent to be in writing makes no reference to its form or contents. As article 22(2)(g) does not require that the consent be signed personally by the owner, it may be signed by an agent on behalf of the owner (See London County Council v. Vitamins Limited and Same v. Agricultural Food Products Limited [1955] 2 A.E.R. 299, at 232-233, per. Romer and Parker L.JJ.).
69. In my judgment the most appropriate form of consent for the purpose of complying with the provisions of article 22(2)(g) is an individual consent bearing the personal signature of the owner and which identifies the land in respect of which the consent is given by reference to parcels drawn and distinguished on a map or plan submitted by the applicant for permission in compliance with the provisions of article 22(2)(b) of the Planning and Development Regulations 2001 (as amended). A similar form of consent signed on behalf of the named owner by a stated agent is next to be preferred and, in cases of disability or incapacity may be the only form possible. A consent in the form of a multiparty list of named owners each of whose land is separately identified as aforementioned and signed by them or by a stated agent on their behalf is also in my judgment a sufficient compliance with the provisions of article 22(2)(g) of the Planning and Development Regulations 2001 (as amended) but is more prone to error and misstatement.
70. I find that Gallagher Brennan, Solicitors were not instructed by the applicant and were not her agents to give any consent on her behalf to the inclusion of any part of her land within the red line or within the blue line. It has not been shown from which specific landowners, Gallagher Brennan, Solicitors had received authority to act as their agents in the preparation and dissemination of the consent dated the 23rd September, 2009. Unfortunately, this information was not sought by the first notice party, even after the applicant in her submission of the 27th August, 2010, clearly stated that she had not given consent to the developer to enter or to utilise her land in Folio 61730F, Co. Donegal in any way for the proposed development. I find that the applicant did not at any time consent to the proposed development on or affecting her land or any part of it and was at all times and remains totally opposed to the granting of permission for the proposed development. I am at a loss to understand how the first notice party came to accept this document dated the 23rd September, 2009, as a sufficient compliance with the provisions of article 22(2)(g). This is all the more remarkable having regard to the queries raised in para. 2 of the Notice Seeking Further Information dated the 19th November, 2009, to which I have already adverted in relation to the location of turbines within 500 metres of dwelling where the first notice party had found that five consents had not been submitted and that of the consents submitted, six names were found not to correlate with the landowners.
71. It was submitted on behalf of the respondent and the second notice party that even if this Court should find that the applicant had not consented to the proposed development on and affecting her land, as a consequence of the second condition attached by the respondent to the decision to grant permission for the proposed development that decision no longer affected any part of the applicant’s land. It was submitted that the applicant was therefore no longer entitled to an order of certiorari ex debito justitae and the court in the proper exercise of its discretion should decline to make such an order in her favour. I find myself unable to accept this submission.
72. I find that the part of the applicant’s land which was included in the application for permission for the proposed development is the area identified at para. 33 of the second affidavit of the applicant sworn on the 31st January, 2010, and shown on the plan therein exhibited and marked “M.McC.2E”. The court was informed by Senior Counsel for the applicant during the hearing of this application for judicial review that this portion of the applicant’s land was approximately 3 or 4 acres in extent. The land contained in Folio 61730F, Co. Donegal, is shown on plan no. 13523 of the Registry Map. Both these documents were submitted by the applicant to the respondent on the 8th October, 2010, with her appeal. This part of the applicant’s land is traversed from N.W. to S.E. by an existing bog road which runs from a local county road to the N.W. of her land to land adjoining her land on the S.E. on which three of the turbines directed to be omitted by condition 2 of the decision of the respondent to grant permission for the proposed development—T.36, T.37 and T.38—were to have been located. This bog road is joined on this part of the applicant’s lands by another existing bog road crossing this part of her land from N.E. to S.W. leading from the same local county road, which at this point is to the N.E. of her land. A further turbine required by Condition 2 to be omitted—T.32—was located on land adjoining the land of the applicant near the junction of this latter bog road and the local county road. It was submitted by Senior Counsel for the respondent and by Senior Counsel for the second notice party that as these turbines have been omitted, the development works on and adjoining these existing bog roads is rendered unnecessary so the applicant’s land is no longer in any manner affected by the proposed development.
73. I do not accept that this is the case. I find that these bog roads also provide the only access to a peat regeneration area shown on a Peat Slide Risk Map annexed to the report from Keohane Geological Environmental Consultancy, dated June 2010, and stamped received by the first notice party on the 23rd June, 2010, in response to paras. 8(d) and 8(f) of the Notice of Further Information dated the 19th November, 2009. This peat regeneration area is shown located on the applicant’s land in the area bounded by these bog roads and the Folio boundary and takes up approximately one half of the total affected acreage.
74. Four other peat regeneration areas are shown on this Peat Slide Risk Map which, with the Report, was submitted to the first notice party and stamped received on the 23rd June, 2010. A group of three peat regeneration areas with a total surface area approximately twice as large as the peat regeneration area located on the applicant’s land are shown located a few hundred metres distant from her land at the junction of the N.E. to S.W. existing bog road and the local county road. They front onto this local county road: one on either side of the bog road and the other opposite the junction on the other side of the local county road. The remaining and fifth peat regeneration area, approximately one half the size of that shown located on the applicant’s land, is shown located approximately 2 kilometres away in a N.E. direction from this cluster of three peat regeneration areas and, fronting on to a different local county road. The site of the proposed development is very extensive being 4 to 5 kilometres in length and 3 kilometres in depth, covering an area of 595 hectares (1,470 acres), on the southern foothills of Aghla mountain in the Townlands of Mully Graffy and Meenamanragh and, approximately 6 kilometres from the village of Glenties, Co. Donegal.
75. This Keohane Report dated June 2010, and stamped “Received” by the first notice party on the 23rd June, 2010, addresses the management of excavated material and the risk of peat landslide in relation to a proposed development of 19 turbines, site tracks (new and upgrading) an on-site control building and ancillary structures. Paragraph 7.3 of the environmental impact statement gives an insight into the sources of this “excavated material”: excavation of rock, soil and peat in the construction of access roads, cranage areas, turbine assembly areas, excavation of turbine foundations, excavation of cabling trenches 1.5m deep, bridge construction and development of borrow pits. I find that this report is the basis for Condition 13 attached to the decision of the respondent to grant permission for the proposed development. It would also come within the ambit of Condition 1. This Report notes that when the original fieldwork and assessment were carried out in 2009, in the course of preparation of the seventh section of the environmental impact statement, for the purpose of assigning a likelihood of construction related peat landslide, the entire development site—of 595 hectares (1,470 acres)—had for this purpose been divided into three broad Zones designated “A”, “B”, and, “C”.
76. By reason of the number of turbines having been reduced from 35 to 19, no proposed construction work will now take place in any Zone “B” type area. Zone “A” type areas are defined in the Report as areas with peat depths in excess of 1 metre (up to 5.6 metres locally), and where the slope is less than 5 degrees. These are identified as areas of flat to gently sloping blanket bog. In such areas the hazard ranking for peat landslides was considered insignificant but at the upper end of the range. Zone “C” type areas were identified as land where the peat cover is generally less than 1 metre thick, where rock outcroppings are frequent and slopes are variable, up to 40 degrees. In such areas the hazard ranking for peat landslides was considered negligible. The conclusion and recommendation of these experts was the same as regards both Zone “A” type areas and Zone “C” type areas was that the, “project should proceed with monitoring and mitigation of peat landslide hazards at these locations as appropriate”.
77. The mitigation measures therefore proposed in section 7.5 of the environmental impact study included the following:-
“Peat regeneration areas have been identified to accommodate the peat spoil. Areas where peat can be placed including cutaway areas near T.32, [the cluster of three], near T.36, [on the applicant’s land] and near the substation near T.14, [two kilometres away from the others]. (Words in bold type are mine)
Avoid the stockpiling of peat. It is intended to place surplus peat on the flat areas of the site where the peat has previously been removed/harvested/eroded. Peat will be placed to a depth of not greater than 1.5m on the flat areas of the site as indicated.
Earthen embankments will be constructed as required to hold the peat in place. These areas will be fenced off for safety and to allow vegetation to establish. The upper layer of peat excavated will be placed on top to facilitate re-vegetation of peat. Peat will also be used to restore the areas around the turbine foundation.”
78. In this Report dated June 2010, report, Keohane advised that—“with these avoidance and mitigation measures, it is considered that the development of the windfarm in Zones “”A” and “C” [19 turbines] can proceed with negligible residual risk of peat landslide”. The five peat regeneration areas are shown on the plan contained in this Report. In a further Report dated the 4th November, 2010, furnished by Keohane Geological and Environmental Consulting, dealing with geology and hydrology issues raised before the respondent by third party appellants, they state that the footprint of the development area (roads, cranage areas and turbine foundations) would be approximately 7 hectares, which included existing roads. Significantly, they did not in any way seek to revise or qualify their opinion and advice given in the Report of June 2010, in relation to peat slide risk or peat spoil disposal.
79. Though the respondent in its decision on the 11th February, 2011, to grant permission for the proposed development required that six of the nineteen turbines be omitted and, these turbines were all in Zone “A” type areas—that is in areas of deeper peat—significantly in my judgment the respondent did not reduce the number of peat regeneration areas recommended by the Keohane Report. On the contrary, I am satisfied that the correct interpretation of Condition 13, is that the recommendations in the Keohane Report of June 2010, stamped “Received” by the first notice party on the 23rd June, 2010, must be implemented in full, together with any related matters of detail required by the first notice party.
80. I am therefore satisfied and I so find that the required omission of the three turbines nearest to the applicant’s land—T.36, T.37 and T.38—does not, ipso facto, eliminate the need and requirement for this peat regeneration area on the applicant’s land. To adopt the reasoning of the second notice party the omission also of turbine T.32 in the same Zone “A” type area should signify that the three peat regeneration areas in the immediate vicinity of that turbine were also no longer required and the omission of turbines T.11 and T.8, approximately two kilometres away and also in a Zone “A” type area, should signify that the nearby peat regeneration area was also no longer required. The inevitable result of such reasoning must be that all five peat regeneration areas are eliminated and the recommendation of the Keohane Report of June 2010, disregarded by the respondent. The respondent’s Inspector in her Report does not recommend that any of the five peat regeneration areas be omitted. The submission of the second notice party based upon the premise that no reasonable developer would carry out the development works necessary to access and use the peat regeneration area located on the applicant’s land when the other peat regeneration areas were readily accessible from local county roads is irrelevant. The second notice party or the developer may choose or may be obliged by enforcement proceedings to use this peat regeneration area on the applicant’s land. In any event, the applicant’s land is burdened with this condition which must affect its use and value. (See: Frascati Estates Limited v. Walker [1975] I.R. 177 at 190-191 per. Henchy J.). I am therefore satisfied and I find that the applicant’s land remains materially and significantly affected by the decision of the respondent to grant permission for the proposed development despite the provisions of Condition 2.
81. I also cannot accede to the submission made on behalf of the respondent that if its decision of the 11th February, 2011, to grant permission for the proposed development is declared invalid the decision of the first notice party of the 15th September, 2010, to grant permission for that development remains and becomes the effective decision. Section 37(1)(b) of the Planning and Development Act 2000 (as amended) provides that the decision of the respondent shall operate to annul the decision of the first notice party. In The State (Abenglen Properties Limited) v. Dublin Corporation [1994] I.R. 381, at 397, Walsh J. held that a decision (in that case of the planning authority) even if held to be ultra vires or unsustainable in law for any reason nonetheless remained a decision for the purpose of the default provisions of s. 24(4) of the Local Government (Planning and Development) Act 1963, (now s. 34(8)(f) of the Act of 2000), so that a decision given in time, even if afterwards held to be ultra vires or invalid was still a decision sufficient to prevent the applicant from obtaining planning permission by default.
82. In O’Keeffe v. An Bord Pleanála and Others (above cited), Costello J. at p. 50 held as follows:-
“The importance of this decision is that not only does it afford an example of an administrative decision having legal effects even if a court subsequently considered that it had been made ultra vires and was therefore null and void but it suggests that the court should consider the statutory context in which the administrative decision is taken and give it legal efficacy, albeit to a limited extent, if the construction of the statute so requires. It has been suggested (see ‘Administrative Law’ Hogan and Morgan, p. 204) that the courts might well treat ultra vires decisions as being lawful until they are made unlawful by the quashing of the decision, and that it is not correct to regard them as never having had any legal effect should they be subsequently declared void. I do not think that I need to decide whether such a principle is one of general application because I think I can decide the point in this case by a construction of the provisions of the Act of 1963, which empowered the Board to take the decision which is now impugned.”
83. Approaching the instant case in a similar light, it is an undeniable fact that on the 11th February, 2011, the respondent made a decision. Even if it should transpire, as a result of the judgment of this court, that this decision of the respondent was invalid and therefore cannot be followed by the making of a grant of planning permission pursuant to the provisions of s. 34(11)(b) of the Planning and Development Act 2000 (as amended) it remains a decision made after the respondent had lawfully received, accepted and considered the third party appeals in this matter. It is significant that the statute contains no default provision in respect of a failure by the respondent to make a decision as it does in the case of a failure by the planning authority to make a decision—s. 34(8). By s. 126 of the same Act of 2000, a duty is imposed on the respondent to ensure that appeals are disposed of as expeditiously as may be and to take all such steps as are open to it to ensure that insofar as practicable there are no avoidable delays at any stage in the determination of appeals. In my judgment this clearly indicates that it was the intention of the legislature that once the appeal process was activated and the appeal was not withdrawn, abandoned, or dismissed, there could be no recourse back to the planning authority, nor could its decision be reactivated should the decision of the respondent be successfully impugned. In such circumstances the respondent cannot be regarded as having made no decision at all in the matter and even if that decision can provide no legal justification for making a grant of planning permission, it continues to have legal existence as a decision for the purpose of s. 37(1)(b) of the Act of 2000 (as amended). By reason of the provisions of s. 34(11)(a) of the Planning and Development Act 2000 (s. 26(9)(a) and (b) of the Act of 1963) a decision of a planning authority to grant permission cannot result in a grant of planning permission if an appeal is taken against that decision to the respondent. The decision of the planning authority is overreached by the appeal and remains entirely ineffective unless that appeal is withdrawn, abandoned or dismissed. The intention of the Legislature that the two-part planning process should produce only one decision is further emphasised by the provision in s. 37(1)(b) of the Act of 2000, that the decision of the respondent, “shall operate to annul the decision of the planning authority”.
84. It is to be noted that it is only the “decision” of the respondent which is to have this effect and not simply the taking of the appeal to the respondent. I am satisfied that the Legislature employed the term, “annul”, consciously and deliberately in order to convey, emphatically and conclusively, in the interest of clarity and certainty and in order to forefend against the possibility of administrative confusion, that upon the respondent giving its decision any prior decision of the planning authority was no longer to be regarded as a decision or as a determination and became as nothing. The Legislature did not rely upon declaring the decision of the respondent to be, “final” or, “final and conclusive” or, “taking effect as if it were the decision of the planning authority”, (i.e. Town and Country Planning Act 1990, ss. 78 and 79—United Kingdom) or upon declaring that the decision of the planning authority be thereafter, “void” or, “void and of no effect”. Having regard to the state of the law in 2000, one may reasonably infer that it did not do so because these terms were too uncertain and open to question.
85. As was held by Walsh J. in The State (Abenglen Properties Limited) v. Dublin Corporation (above cited):-
“It is not possible to attribute to the Oireachtas the intention that every decision which has been proved to be unsustainable in law for one reason or another shall have the effect of giving the applicant permission for his proposed development however outrageous it might be and however contrary to both the spirit and letter of the planning laws.”
86. In that case planning permission might have been obtained through the default provisions of s. 24(4) of the Act of 1963 (now s. 34(8)(f) of the Act of 2000 (as amended)). In my judgment it would be contrary to the intention of the Legislature as clearly indicated by the provisions of the Planning and Development Act 2000 (as amended) were I to accede to the submission that the decision of the first notice party, to which there was no challenge by way of judicial review, revives and becomes effective if the decision of the respondent is declared invalid or ultra vires.
87. I find, on the evidence of the Keohane Report of June 2010, and the 4th November, 2010, that while a fifth peat regeneration area of this nature and size is an integral of the Peat Slide Plan fundamental to the approval of the proposed development, there is nothing, other than the initial choice which requires that it be located solely and exclusively upon this exact part of the applicant’s land and nowhere else within the blue line. Apart from its Zone “A” type classification by the Keohane Report of June 2010, there is nothing otherwise unique about this part of the applicant’s land. I am satisfied that the choice of this particular location in the Keohane Report was determined by three factors: the assumed consent of the applicant to the use of the site, the fact that the site lay within a Zone “A” type area and the fact that the site would be served by the same proposed site roads and the same managed drainage system as would serve the three adjacent turbines, T.36, T.37 and T.38 (now all omitted). I can find nothing immutable about this decision to locate this particular peat regeneration area on the applicant’s land. On the basis of the evidence of the Keohane Reports, I am satisfied that any other location within the blue line with Zone “A” type characteristics would serve equally as well and indeed, would have to so serve if some undiscovered geological or hydrogeological fault or defect materially affecting the site on the applicant’s land were to come to light. There can be no doubt whatsoever as to the dimensions and nature of this peat regeneration area. They are clearly and precisely delineated and set out in the Keohane Report of June 2010 and in other plans referred to in Condition 1 of the decision of the respondent to grant permission for the proposed development. The part of the applicant’s land included within the blue line can therefore be identified with precision and isolated from the remainder of the land included within the blue line.
88. In this case the court can be reasonably certain that the intention of the respondent, had it known that Condition 13, to the extent that it required development works to be carried out and this peat regeneration area to be located on the applicant’s land was beyond its powers, would have been to require the developer to provide a peat regeneration area of equivalent nature and size on other Zone “A” type land within the blue line. In the light of the foregoing I am satisfied that in this judicial review of the exercise of a quasi-judicial power by the respondent, I should apply the principle of, “enforcing the enforceable as far as it is possible—of making the thing work and not be lost”. (See Thames Water Authority v. Elmbridge Borough Council [1983] 1 Q.B. 570, C.A. per. Dunn L.J., p. 580-1, Dillon L.J., p. 584-5 and Stephenson L.J., p. 585-6). Having regard to the very great area of land—559 hectares (1,470 acres)—within the blue line (not all, of course, Zone “A” type land) and to the wide flung nature of the proposed development, the relocation of this particular peat regeneration area of approximately .809 hectares (2 acres), on other Zone “A” type land within the blue line can in my judgment be properly regarded as a “detail” to be agreed with the first notice party within the provisions of Condition 13 and Condition 1 of the conditions attached by the respondent to its decision to grant permission for the proposed development.
89. In her report dated the 31st January, 2011, the respondent’s Inspector summarised the contents of the applicant’s appeal. She noted that the applicant claimed that there had been a failure to carry out bird surveys and to make an appropriate assessment of the impact of the proposed development on avifauna. The Inspector set out (p. 14) that the applicant had in particular adverted to the following matters in support of this contention:-
“Inadequate assessment of impacts on avifauna.
Official records of hen-harrier populations in Ireland are properly recorded.
The survey times would not be conducive to the observations of raptors.
The Journal of Applied Ecology (Appendix 7) which provides a study on the impact of upland wind farms on the distribution of breeding bird’s states that breeding bird density may be reduced within a 500m. buffer of the turbines by 15-73% with buzzard, hen harrier, snipe, curlew, golden plover and wheatear most affected.
No impacts of aviation lights on bird populations in the area.
Based on the lack of certainty, it is prudent that the precautionary principle be applied and permission refused to protect the birds in the area.”
90. At pp. 43 and 44 of her report, under the caption “IMPACTS ON FLORA AND FAUNA” the respondent’s Inspector considered the submissions of the applicant and other third party appellants, the responses made on behalf of the second notice party, the environmental impact statement and, further information furnished, “to address the deficiencies in the environmental impact statement”, as regards impact on local birds. The Inspector noted that this further information included a Winter Survey carried out in mid-February, a Spring Survey carried out in mid-April to establish the presence or absence of breeding species in the area of the proposed development and, Vantage Point Surveys carried out with a view to ascertaining whether raptors were present in the area of the proposed development. The Inspector noted that the site had been visited in mid-February, mid-April and in July, but only for limited periods. The presence of a pair of Red Grouse had been noted in the Zone “A” type land adjoining the applicant’s land to the north and north east. The presence of Red Grouse was also noted further west on Zone “C” type land at Stralinchy. In the decision of the respondent to grant permission for the proposed development two turbines—T. 30 and T. 35—proposed to be constructed in the Mully Hill/Stralinchy area were permitted. The Inspector noted the Red Grouse were not an “annexed” species, but were included in the then current Birdwatch Ireland list of conservation concerns. She noted that a sanctuary for this species had been established on the rearward northern slopes of Aghla Mountain, (the proposed development site is on its southern foothills).
91. The Inspector reported that the main threat to birds from wind farms arose from collisions with turbines and from disturbance of and loss of habitats. She advised that most studies suggested that except under exceptional circumstances, this risk was not sufficiently great to constitute a threat to birds living in the area of a wind farm. She offered as an example of such an exceptional circumstance a situation where a wind farm with a high density of turbines was located in an area with a high density of birds. The Inspector reported that the probability of bird mortality from collisions would be low in the case of the proposed development as the turbines were spaced well apart and the evidence suggested that bird numbers in the area were generally low. She considered that the greatest impact on Red Grouse in the area would be from habitat disturbance and fragmentation especially if construction work were to be carried out in April and May. The Inspector advised that the land adjoining the applicant’s land to the north and north east in the vicinity of the proposed turbine T. 32 (subsequently required by the respondent to be omitted) provided a suitable habitat for Red Grouse and should be maintained free of development. The Inspector noted that while no survey of bats had been carried out in the area of the proposed development there were no suitable roosting areas for bats in the vicinity of the proposed turbines and the valleys close to the rivers would provide a more suitable hunting area for bats.
92. The aspect of the Inspector’s report which formed the basis of the applicant’s challenge to the decision of the respondent in this judicial review application lies in the following statement (p. 44):-
“The inadequacy of the bird surveys has been extensively criticised in the submissions. I accept that the surveys are far from robust due to their limited duration, taken outside the recommended times etc. The Board will note that there is no information on migratory species, flight paths etc. and no reference to the recently reintroduced Golden Eagle. I accept that an all year round survey provides a greater level of detail and provides confidence that all significant features have been identified. Whilst the lack of detail on avifauna is noted by the Department of Environment, Heritage and Local Government, no issues with regard to particular species were raised. It was considered sufficient that a management plan for land/habitat be agreed prior to the commencement of development on the site. I note that the imposition of this type of condition has been considered acceptable in the past by the Board (05.226520)”
93. It was submitted by Senior Counsel on behalf of the applicant that it was not lawful for the respondent to have purported to grant permission for the proposed development without first seeking, by way of further information, such an all year round Avifauna Survey or surveys which, provided information on migratory bird species flight paths and reintroduced Golden Eagles in the area of the proposed development. The respondent had, he said, acted unlawfully in endeavouring to circumvent this statutory obligation by attaching a condition, (No. 12), to the purported decision to grant permission for the proposed development which required a management plan for land and habitats within the proposed development area to be agreed with the first notice party prior to the commencement of any development on site. This, Senior Counsel submitted, was also in breach of the requirement in the Council directive for public consultation. The applicant and other interested parties and bodies would have no legal right of participation in the formulation and agreement of this management plan.
94. The respondent’s Inspector in her report endorsed and recommended the course suggested by the Department of the Environment, Heritage and Local Government (Development Applications Unit) in its letter of response, dated the 20th July, 2010, to the first notice party. In that response the Department stated:-
“We have reviewed the Further Information forwarded by Harley-Newman, Planning and Development Consultants on behalf of the applicants. This information provided addresses the vast majority of the concerns raised by the Department. We note the further consultations/agreement proposed with the Department in relation to bridge construction and the monitoring programme for the Surface Water Management Plan. However, we believed that the potential impacts in relation to avifauna have not been fully addressed. In order to mitigate this potential impact we recommend that the following conditions be attached to the grant of permission:
A management plan is prepared for lands/habitats within the proposed development site in order that these lands are managed in a sustainable way, which may benefit local wildlife. The plan should be agreed with the National Parks and Wildlife Service (Department of the Environment, Heritage and Local Government) and should be adopted prior to the commencement of any onsite development works.”
95. Condition 12 attached by the respondent to the decision to grant permission for the proposed development is in the same terms as that recommended by the Inspector, (Condition 11, p. 51 of Report), and the same reason is given for it, “to ensure appropriate management of habitats within the site”. While accepting that the bird surveys which formed part of the environmental impact statement were, “far from robust”, because they did not provide any information regarding migratory species in the area of the proposed development, or of possible flight paths in that area and, did not address a possible over flying of or passage through this area by Golden Eagles that had been reintroduced into the wild in Glenveagh National Park, a relatively short flying distance to the north, and, while accepting that an all year round survey would provide confidence that “all significant features had been identified”, the Inspector nonetheless, went on to recommend that permission be granted for the proposed development. The respondent accepted and acted upon these recommendations of its Inspector.
96. It is the case for the applicant that the respondent lacked jurisdiction to make a decision whether or not to grant permission under the proposed development until it had first sought and been furnished by the second notice party with data and information sufficient to enable the respondent rationally and reasonably to decide whether migratory species, avian flight paths or Golden Eagles were likely to be significantly affected by the proposed development. Senior Counsel for the applicant submitted that this was not a question of quantitative assessment of information in the environmental impact statement, which he accepted was a matter for the respondent and not for this Court, (Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 and Kenny v. An Bord Pleanála (No. 2) [2001] 1 IR 704. This he submitted was a question of the sufficiency of the information contained in the environmental impact statement which he said went to jurisdiction and was therefore open to challenge by way of judicial review.
97. Article 94 of the Planning and Development Regulations 2001, sets out the mandatory requirements for an environmental impact statement by reference to the provisions of the Sixth Schedule of those Regulations. Paragraph 1(c) of this Schedule provides that an environmental impact statement must contain, “data required to identify and assess the main effects which the proposed development is likely to have on the environment”. At para. 2(b) of the Schedule there is a further requirement that information by way of explanation or amplification of this information must also be furnished providing a description of the aspects of the environment likely to be significantly affected by the proposed development, including, in particular fauna and cultural heritage.
98. There can be no doubt but that s. 4.4 of the environmental impact statement in the present case supplemented by the report of Mr. Goodwillie dated April 2010, furnished in response to the Notice of Further Information served by the first notice party and by his further Report dated the 8th November, 2010, responding to wildlife issues raised by the applicant and six other third party appellants is a compliance with the provisions of the statute and of the statutory instrument in that it addresses the issue of whether avifauna was likely to be significantly affected by the proposed development. Article 111(i) of the Planning and Development Regulations 2001, provides that the respondent shall consider whether an environmental impact statement received by it in connection with an appeal complies with article 94 and if not so satisfied may issue a Notice under s. 132 of the Planning and Development Act 2000, requiring an applicant to, “submit such further information as may be necessary to comply with the relevant Article”. No such Notice was issued by the respondent in the instant case. There was no positive evidence before the court that the respondent had complied at all with the provisions of article 111(i), but no issue was taken as to this: the emphasis of the submission on behalf of the applicant was that the respondent had not sought such information when the report of its Inspector rendered it imperative that it should as regards these avifauna matters.
99. In my judgment the word, “shall”, in article 111(i), following the ordinary and natural meaning attached to it in a statutory context, is mandatory and imposes on the respondent an obligation of ensuring that the information contained in the environmental impact statement complies with the requirements of Article 94. As was pointed out by MacMenamin J. in Kildare County Council v. An Bord Pleanála [2006] IEHC 173, (Unreported, High Court, MacMenamin J., 10th March, 2006), para. 70, this assessment of the adequacy of information with regard to the likely environmental impact of a proposed development involves the exercise of a discretion on the part of the respondent (Maher v. An Bord Pleanála [1999] 2 ILRM 198). At para. 72 of his judgment in Kildare County Council v. An Bord Pleanála, MacMenamin J. held as follows:-
“The approach adopted by McKechnie J. [in Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 407] is consistent with that of the courts of England and Wales (see R. v. Rochdale Metropolitan Borough Council ex parte Millne [2001] 81 P. & C.R. 27. The decision of the High Court in that decision was upheld by the Court of Appeal in an unreported decision of Pill and Chadwick L.J. on December 21st, 2000:
“In my judgment what is sufficient is a matter of fact and degree. There is no blue print which requires a particular amount of information to be supplied. What is necessary depends on the nature of the project and whether, given the wording of (article 2 of the Directive), enough information is supplied to enable the decision making body to assess the effect of the particular project on the environment. I agree with Sullivan J. that the court cannot place itself in the position of reconsidering the detailed factual matters considered by the planning authority. Equally I accept that the court does have a role and there may be cases where the court can and should intervene and hold that no reasonable local authority could have been satisfied with the amount of information which it was supplied in the circumstances of the particular case.’”
100. At para. 73 of the same judgment MacMenamin J. held that for such an intervention to take place in this jurisdiction, an applicant would have to establish that the decision of the respondent to accept the amount of information furnished in the environmental impact statement and in any supplementary information relating to the impact of the proposed development and not to issue a notice seeking further information “plainly and unambiguously flew in the face of fundamental reason and common sense” (The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, at 658 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39). An applicant would have to show that this was a decision which having regard to the clear intent and requirement of Council Directive 85/337/E.E.C. of 27th June 1985 (as amended) that the respondent ensure that it had adequate information and that this had been made available to the public before making such a decision, was one “which no rational or sane decision maker, no matter how misguided”, would have made. In my judgment the applicant in the present case has not discharged this onus.
101. Though not in any way legally constrained to accept or to act on it, the respondent had before it the recommendation of its Inspector that permission be granted for the proposed development subject to a land/habitat management plan being put in place before the commencement of any development. In Circular Letter P.D. 2/07 and N.P.W.S. 1/07, directed to all county and city managers, directors of services for planning and, town clerks, the Department of the Environment, Heritage and Local Government advised that it considered that Council Directive 85/337/E.E.C., required that a planning authority must have before it adequate information on the potential effects of the proposed development, including any proposed mitigation measures, when making its decision. The Circular went on to instruct that accordingly, under no circumstances should a planning authority use compliance conditions to complete an inadequate environmental impact study or to request the development of appropriate mitigation measures in such circumstances. The Circular Letter then continued as follows:-
“In any such case where a developer has not provided adequate information in respect of environmental or natural heritage impacts or has not supplied adequate information on the nature or impact of appropriate mitigating measures, the appropriate course for the planning authority is to require the developer to submit further information in accordance with Article 33 of the Planning and Development Regulations 2001.
Appropriate Compliance Conditions
It is appropriate to attach compliance submissions to monitor the effectiveness of proposed mitigation measures in relation to known environmental effects, or mitigation measures proposed in an environmental impact study that must be implemented. Planning authorities should however, ensure that the developers are applying correctly any mitigation measures proposed in the application, in a way that minimises the resource implications for the authorities”.
102. As noted by the respondent’s Inspector in her Report in its letter dated the 20th July, 2010 to the first notice party the Department of the Environment, Heritage and Local Government, while adverting to the fact that the potential impacts in relation to avifauna had not been fully addressed in the environmental impact statement and supplementary information nonetheless considered that such potential impacts could be mitigated by attaching a condition requiring a lands/habitats management plan to any grant of permission. This letter was required to be before the respondent (s. 128(1)(a)(ii) as substituted by s. 21 of Act No. 27 of 2006). It was accepted on all sides that the respondent would have been aware of Circular Letter P.D. 2/07 and N.P.W.S. 1/07. In her Report the respondent’s Inspector also pointed to the fact that the above letter of the 20th July, 2010, raised no issues with regard to any particular species of bird. The Department clearly did not consider that there was insufficient evidence on this topic for the respondent to make a decision or that in the circumstances the making of such a decision without requiring further information on this topic would amount to an infringement of its own guidelines.
103. An avifauna survey carried out in July 2009, which forms the basis of s. 4.4 of the environmental impact statement, found that the bird species seen in the area of the proposed development were not rare either in Donegal or nationally. This survey was said to have been carried out in time to obtain a good impression of nesting birds. It stated that because of the lack of suitable local habitats the area was of minimal importance as regards bats. Hooded Crows, Ravens and Kestrels were seen in the area. Golden Plover and Dundin were not seen. Red Grouse droppings were seen in the area of the proposed turbine T. 32 (since directed to be eliminated by the decision of the respondent). A single Curlew was seen near Lough Ea, some 1.8km from the nearest proposed turbine. There was anecdotal evidence that a Golden Eagle had been seen in 2001, about 2km west of the proposed development site. It was considered that Plover were likely to occur in the proposed development site area in autumn at a time when they were moving about prior to migration.
104. A further avifauna survey was carried out by Mr. Goodwillie, in mid-February 2010, in response to the Notice for Further Information served by the respondent. This took the form of a vantage point survey for raptors and three transects of what was stated to be a representative area of the site of the proposed development for the purpose of locating wintering birds. Apart from Ravens and Hooded Crows no birds of prey were seen. A pair of Red Grouse was seen in the area of the proposed turbine T. 32 (since directed by the respondent to be eliminated). A Dipper was seen in a stream near the proposed turbine T. 2, at the extreme N.E. end of the proposed development site from the applicant’s lands. Application for permission for this proposed turbine was abandoned at the planning authority stage. Two Whooper Swans were observed on Lough Ea. Another transect survey was carried out by Mr. Goodwillie in mid-August 2010, with a view to identifying protected breeding species, particularly Hen-Harriers. Apart from Hooded Crows and Magpies no birds of prey were seen. A local farmer reported that two Golden Eagles had been seen on the top of Aghla Mountain,—the proposed development is located on the lower southern slopes of this mountain—in 2007, but to his knowledge had not been seen since then. Mr. Goodwillie stated that the low number of birds found in the area of the proposed development on these surveys was corroborated by data held by the National Parks and Wildlife Service of the Department of the Environment, Heritage and Local Government. The absence of Hen-Harriers and Merlin in the area of the proposed development was confirmed by this data and separately, by the findings in a General Survey carried out by Scott and Norriss which included this area.
105. In a submission to the respondent dated the 4th October, 2010, and received on the 7th October, 2010, from Ralph Sheppard of Gaia Associates, Environmental Consultants, on behalf of another third party appellant, he stated that Red Grouse were known to be breeding on Aghla Mountain and almost certainly on the bog plateau on the south side of that mountain. He referred to a Birdwatch Ireland census of 2006-2008 which identified 4,200 birds of this species present in the whole island of Ireland. He considered that the construction of turbines on this bog plateau would lead to a further decline in the numbers of this endangered species. This opinion was also expressed by other third party appellants some of whom referred to the establishment of the Cró Na mBraonain habitats and grouse sanctuary three years previously on the reverse (northern) side of Aghla Mountain from the proposed development. Application for permission for proposed turbines in all Zone “A” type land and also all Zone “B” type land—similar to Zone “A” type land, but with somewhat steeper slopes of between 5 degrees and 10 degrees—the type of bog plateau being referred to by Mr. Sheppard, was either abandoned at the planning authority stage by the second notice party or was disallowed by the respondent in its decision.
106. Mr. Sheppard considered that the sighting of the single Curlew near Lough Ea was very significant and should have resulted in a further survey of that area to establish if a group of Irish breeding species was present. Lough Ea is on the southern side of the R.253 and approximately 1.8km away from the nearest turbine permitted by the respondent. Mr. Sheppard accepted that Hen-Harriers were not known to be present in the area of the proposed development but stated that Peregrine and Merlin were both known from the area. This later statement is at odds with what Mr. Goodwillie stated was the data held by the National Parks and Wildlife Service. Mr. Sheppard stated that Golden Plover were present in the area of the proposed development during the breeding season. He pointed out that Red Grouse, Golden Plover, Merlin, Hen-Harrier and Peregrine are all listed in Annex 1 of Council Directive 09/147/E.C. of 30 November 2009 on the conservation of wild birds, O.J. L 175/40 5.7.1985 (E.U. Birds Directive). He considered that the proposed development would have a serious impact on important wildlife and habitats in the area.
107. The surveys carried out by Mr. Goodwillie were criticised by other third party appellants as having been carried out post-dawn and pre-dusk, outside the recommended dates and in lowland areas and along roadsides where, it was said, Red Grouse and birds of prey were unlikely to be found. A third party appellant submitted that research by the National Parks and Wildlife Service had established scientifically that Golden Eagles avoided wind farms and flew a circuitous route for that purpose. This third party appellant submitted that the proposed development would stand in the path of an existing straight and safe flight-path between nesting areas in Glenveagh and in the Bluestack Mountains.
108. A further Report from Mr. Goodwillie, dated the 8th November, 2010, was submitted by the second notice party to the respondent in reply to these various third party appeals. In it, Mr. Goodwillie accepted that Red Grouse would be affected by the construction work connected with the proposed development if this work were to be carried out in the nesting season of April and May. He referred to a leading article by James W. Pearce-Higgins and others in the Journal of Applied Ecology, 2009, No. 46, pp. 1323-1331, entitled “The Distribution of Breeding Birds Around Upland Wind-Farms”, which reported their finding that Red Grouse did not otherwise show any negative response within 500m of active wind-farms. Mr. Goodwillie stated that there were no suitable cliff breeding sites for Peregrines in the area. He stated that his familiarity with the existing literature and his experience of available habitats gave him confidence that no interesting bird species was missed in the July, February and April surveys, despite the time constraints imposed by planning deadlines. He accepted that the article by Pearce-Higgins et al., had reported that some reduction in Curlews breeding within 100m to 800m of wind turbines had been demonstrated. In his opinion there were no likely nesting habitats for Curlews within the area of the proposed development. Mr. Goodwillie stated that the Winter Survey had been done in February 2010, rather than in January because of the severe weather in the latter month, but he considered that milder weather would not have produced a different result. Because of planning time constraints a summer survey could not be done in 2010 as it was in 2009, so April was chosen instead. He stated that in April all migratory species would be in residence in the area and Hen-Harriers and other birds of prey would be most visible while establishing territories. The site transects were designed to traverse habitats where Snipe, Curlew, Golden Plover, Red Grouse, Ring-Ouzel and Wheatear and other rarer bird species might occur. He stated that small common bird species would not be affected by the construction or operation of the proposed development.
109. In their report entitled “The Distribution of Breeding Birds Around Upland Wind-Farms”, Pearce-Higgins and others, the authors state that they had used data from twelve upland wind farms in the United Kingdom built between 1996 and 2002. To their knowledge this was the first such multi-site comparison examining wind-farm effects on the distribution of breeding birds. Six survey visits at twelve day intervals had been made between mid-April and end-June employing walking transects conducted every three hours from dawn to dusk avoiding periods of strong winds, heavy precipitation and poor visibility. Raptor flights were mapped to provide an index of flight activity and, flight heights were estimated. The authors stated that levels of turbine avoidance suggest that breeding bird densities may be reduced within a 500m buffer zone of turbines by 15% to 53%, with Buzzard, Hen-Harrier, Golden Plover, Snipe, Curlew and Wheatear most affected. The occurrence of Red Grouse was greater close to access tracks and no evidence of turbine avoidance by Red Grouse was evidenced. These birds also showed no consistent avoidance of overhead power lines. The authors were satisfied that the evidence emphasised the need for a strategic approach to ensure that wind-farm development avoided areas with high densities of potentially vulnerable species. They found considerable evidence for localised reduction in breeding-bird density on upland wind-farms. No examination had been carried out as to whether this was due to avoidance as a behavioural adaptation consequent on collision mortality or reduced productivity or both.
110. While accepting that further avifauna surveys, whether all-year-round surveys or surveys limited to migratory birds, flight paths or Golden Eagles in the area of the proposed development might enhance the store of knowledge available to the respondent in deciding whether or not the proposed development was likely to have significant effects on avifauna in the area, I cannot accept that it was irrational and plainly and unambiguously flying in the face of fundamental reason and common sense for the respondent to have considered that without this additional material, the environmental impact statement and supplementary material was sufficient to comply with the requirements of article 94 of the Planning and Development Regulations 2001. I do not accept that the environmental impact study and supplementary material contained no information on migratory species and made no reference to the recently reintroduced Golden Eagle. However, the fact that the respondent’s Inspector considered that the avifauna surveys were “far from robust” and provided no information on migratory birds, flight-paths or Golden Eagles does not, as submitted by the applicant, mean that the respondent in the exercise of its statutory discretion could not have concluded that the information provided by the second notice party in the environmental impact statement and supplementary material was a sufficient description, explanation and amplification of the aspects of the environment, including fauna, likely to be significantly affected by the proposed development. These criticisms by the Inspector were a factor to be taken into account by the respondent in deciding whether or not the information was adequate but was not in any way conclusive in the matter. I am satisfied that it was reasonably and rationally open to the respondent to conclude that the information contained in the environmental impact study and supplementary material in this case was adequate and a proper compliance with the provisions of article 94 of the Planning and Development Regulations 2001 (as amended).
111. However, Senior Counsel for the applicant submitted that the respondent had not in fact considered that the information contained in the environmental impact statement and supplementary material complied with the provisions of article 94 of the Planning and Development Regulations 2001, (as amended). He submitted that the respondent’s Inspector in her Report had found that the environmental impact statement and supplementary material lacked information on avifauna necessary to enable a decision to be made on whether the proposed development was likely to have a significant effect on avifauna and that the respondent had accepted this finding. This acceptance, he said, was evidenced by the attachment by the respondent of Condition 12 to its decision to grant permission for the proposed development with the object of providing a solution, by means of a management plan, for possible significant effects on avifauna by the proposed development which could not be considered at that time because of the inadequacy of information contained in the environmental impact statement and supplementary material. No other evidence of this alleged decision on the part of the respondent that the information was inadequate was adduced by the applicant despite what was held by McCarthy J. in O’Keeffe v. An Bord Pleanála [1993] (above cited), at 79, regarding the burden of proof in applications for judicial review of administrative decisions.
112. In that case, Finlay C.J., p. 76 and McCarthy J., p. 79, held that the respondent is entitled to express the reasons for its decisions by reference to the reasons given for conditions together with the terms of those conditions. The reason given by the respondent for imposing Condition 12 was, “to ensure appropriate management of habitats within the site”. In the absence of any other evidence I must accept that this was the bona fide and sole reason why the respondent considered it appropriate to attach Condition 12 to its decision to grant permission for the proposed development.
113. This was also the reason given by the respondent’s Inspector for recommending in her Report (p. 51, Condition 11) that such a condition be attached to any decision to grant permission for the proposed development. While it is long established in law that the respondent is not bound by any findings of fact or, obliged to accept any recommendation made by its Inspector in her or his report, it is clear that in the instant case the respondent accepted this particular recommendation of its Inspector. It is further clear from those sections of the Inspector’s Report to which I have referred earlier in this judgment that the impetus behind the imposition of this condition came from the Department of the Environment, Heritage and Local Government in its submission of the 20th July, 2010, to the first notice party. This submission, as noted by the Inspector in her Report raised no issues with regard to any particular bird species. This latter point is of importance as regards the alleged lack of reference to Golden Eagles in the environmental impact statement and supplementary material (which I am not satisfied is correct) because it is the National Parks and Wildlife Service of that Department which is endeavouring to reintroduce Golden Eagles into the wild in Glenveagh National Park.
114. It is utterly improbable that the Department of the Environment, Heritage and Local Government would recommend that this condition be attached to any grant of permission for the proposed development for the reasons submitted by the applicant. To do so, would be to recommend a course of action condemned by its own Circular Letter P.D. 2/07, N.P.W.S. 1/07 directed to all county and city managers, directors of services for planning and town clerks. It was accepted on all sides that the respondent would have been aware of the existence and contents of this important circular letter. In it the Department advised that it considered that Council Directive 85/337/E.E.C., required that a planning authority must have before it adequate information on the potential effects of the proposed development, including any proposed mitigation measures, when making its decision and, that accordingly under no circumstances should a planning authority use compliance conditions to complete an application in a way that minimised this requirement. I am quite unable to accept that the respondent’s Inspector and the respondent, despite the reason given for Condition 12, in fact employed it as a device to consciously and deliberately do exactly what was expressly disapproved in Circular Letter P.D. 2/07, N.P.W.S. 1/07. It would require the very strongest evidence to establish such a case and the only evidence in the present case was a particular construction and, in my judgment an incorrect construction placed upon a paragraph (4th paragraph, p. 44), in the Inspector’s Report. In my judgment this misconstruction comes from conflating the Inspector’s criticisms of the avifauna surveys underpinning the environmental impact statement and supplementary material and, the concern of the Department of the Environment, Heritage and Local Government to ensure that the land within the proposed development site would be managed in such a way as to benefit local wildlife.
115. It is significant that the respondent’s Inspector, while adverting to criticisms by third party appellants of the avifauna surveys underpinning the environmental impact statement and supplementary material and, while accepting that these surveys were, “far from robust” and, while focusing attention on what she considered—perhaps incorrectly—was a failure to provide information on migratory species, flight-paths and Golden Eagles, does not conclude that without further information about these matters it would not be possible to make a proper decision as to whether the proposed development was likely to have a significant effect on avifauna. The Inspector refers to the criticism by the Department of the Environment, Heritage and Local Government that potential impacts in relation to avifauna had not been fully (the emphasis is mine) addressed in the environmental impact statement and supplementary material. However, it is clear from the solution proposed by the Department that it was not concerned with any lack of information about flight-paths, migratory and other species including Golden Eagles, or other data in the environmental impact statement and supplementary material, but with the absence of a management plan for the 595 hectares, (1,470 acres), within the development site addressing such matters (identified in the environmental impact statement and supplementary material) as the need to protect nesting birds during construction and maintenance works, the importance to local and migratory birds of healthy and carefully managed blanket bog, wet-lands and water courses and the prevention of habitat degradation by over-grazing. In my judgment the fact that the respondent’s Inspector added the sentence,—“The plan shall provide for a programme of ecological monitoring (including for avifauna) to be carried out on the site by a suitably qualified specialist during construction and for a period following the commission of the development”—to the draft submitted by the Department of the Environment, Heritage and Local Government and, that the condition so extended was accepted by the respondent does not alter the purpose of Condition 12 or the intention of the respondent in imposing it. I am quite satisfied that the sole purpose for attaching Condition 12 to the decision to grant permission for the proposed development was, as the reason given for it states, “to ensure appropriate management of habitats within the site” and for no other purpose.
116. I do not consider that the decision in R. v Cornwall County Council [2001] Env. L.R. 25 per. Harrison J. is of any assistance to the applicant and, is distinguishable on its facts from the present case. In that case Harrison J. found that following, “the strong advice”, of English Nature Cornish Wildlife Trust and Cornwall Bat Group, that bats, (a protected species within annex IV(a) of the Habitats Directive), or their resting places, “may be found in the mineshafts if surveys were carried out”, the Planning Committee of Cornwall County Council concluded that those surveys should be carried out. That being so, Harrison J. held that despite the advice of English Nature and Cornish Wildlife Trust that the surveys should be carried out before any development was commenced rather than before planning permission was granted, the permission granted was unlawful because Cornwall County Council could not know that they had full environmental information and, could not rationally conclude that there were no likely significant environmental effects until the surveys were completed and they had been furnished with the data. As I have demonstrated in the instant case, contrary to what was submitted by the applicant, the respondent’s Inspector did not, nor did the Department of the Environment, Heritage and Local Government recommend that further surveys be carried out nor, did the respondent conclude that they ought to be.
117. Article 94, Schedule 6 of the Planning and Development Regulations 2001, provides at subpara. 1(c) and 2(b) that an environmental impact statement shall contain data required to identify and assess the main effects which the proposed development is likely to have on the environment, together with further information by way of explanation and amplification, describing aspects of the environment likely to be so affected, in particular cultural heritage. It was accepted on all sides at the hearing of this application that the environmental impact statement and supplementary material furnished by the second notice party did not contain any information which would enable the respondent to consider whether the cultural heritage of the area of the proposed development, as an important Gaeltacht area, was likely to be significantly affected by the proposed development. It was accepted that this omission was due to a genuine but nonetheless surprising error on the part of the first notice party as to the boundaries of this very important Gaeltacht area. I am satisfied that the Certificate from the Department of Community, Equality and Gaeltacht Affairs, dated the 1st October, 2010, and exhibited at para. 21 of the applicant’s second affidavit sworn on the 31st January, 2012, demonstrates conclusively that the entire proposed development sites lies within this Gaeltacht area. Section 143(1)(a) of the Planning and Development Act 2000 (as substituted) requires that the respondent in performing its functions must have regard to Government policies and objectives. It was accepted by all parties that it was Government policy to preserve and promote Gaeltacht areas. The evidence established that this was also the policy of the first notice party. Though he referred to this section in argument, I do not believe that senior counsel for the applicant assumed the onus of establishing (Glancré Teoranta v. An Bord Pleanála [2006], (Unreported, High Court, MacMenamin J., 2nd May, 2006)) that the respondent in reaching its decision in the present case had failed to comply with the provisions of this subsection.
118. In her Report, the respondent’s Inspector (p. 46) considers the matter under the caption, “Impacts on Cultural Heritage” in the following terms:-
“The impacts of the development on cultural and linguistic heritage that the Gaeltacht provides have been raised in the submissions. Chapter 6 of the Environmental Impact Statement (Material Assets) provides reference to cultural heritage. The main focus of this chapter is on archaeology and architectural heritage, with only fleeting reference to the cultural significance of the Irish language. This is perhaps understandable on the basis that the site appears to be specifically excluded from the Gaeltacht area as defined in Map 11 on the Plan. However, the inclusion of a number of the townlands within the subject site in the place names (Ceantair Ghaeltachta) Order 2004, which declares the official Irish language version of placenames in Gaeltacht areas, suggest that the site is within the designated area. This is further supported by the map showing the extent of the Donegal Gaeltacht on the Udaras na Gaeltachta web site.
The Donegal Gaeltacht is one of the largest in the country and is of significant cultural importance. The Plan seeks to protect this important cultural resource and its goal is ‘to maintain and develop the Gaeltacht as a vibrant and sustainable community wherein the Irish language and culture can flourish’. Various policies and proposals are incorporated into the Plan to preserve, protect and promote the language and culture of the Gaeltacht, whilst at the same time allowing it to develop. With the exception of multiple housing units, the Plan does not identify particular land uses, which it is considered would pose a threat to the language and culture of the Gaeltacht areas requiring language impact assessment. I note that the Windfarm Development Guidelines make no reference to negative impacts on language arising from windfarm development.
The concerns raised by the observers relate to depopulation of the area and loss of attractiveness due to the development of a windfarm whilst substantial and persistent population decline would impact significantly on the ability of the area to support and maintain the facilities/activities to sustain and promote the Irish language, I am not aware that there is any compelling evidence than appropriately sited windfarms would result in population decline or render an area less attractive for housing. Conversely, there is evidence to suggest from surveys carried out in other countries such as Scotland, Britain, USA, Denmark, etc. (with significant installed capacity), that public opinion usually shifts to become more strongly in favour of windfarms once the turbines are installed and operational, i.e., that acceptance grows with familiarity.
The highest proportion of turbines will be located in the area stretching from Graffy Bridge north-eastwards towards Dalragan More. This is an area with a very low population density. The few inhabited houses that do exist are long established residences and there is no evidence, even in the absence of the proposed windfarm, that the area has proved an attractive location for new dwellings.”
119. It was submitted by senior counsel on behalf of the applicant that the environmental impact statement did not contain any information or data to enable the respondent to identify and to assess the likely effects, adverse or beneficial, which the proposed development might have on the cultural heritage of this Gaeltacht area. I am satisfied that the requirement to provide such information by way of explanation and amplification of the data required to identify and assess the main effects which the proposed development was likely to have on the environment, was not, in the instant case, mandatory. This was not, as the Inspector pointed out in her Report a proposal to develop multiple housing units in the area which might well affect its cultural heritage. The adequacy of the information contained in an environmental impact statement is a matter for the respondent and, as was pointed out by Harrison J. in R. v. Cornwall County Council (above cited), para. 37, the requirement to provide such information does not arise if the respondent considers that it is not required to identify and assess the likely effect of the proposed development on the cultural heritage of this area. If the respondent considered that it required such information, it was empowered by provisions of article 111(2) of the Planning and Development Act Regulations 2001, to serve a Notice seeking that information from the second notice party.
120. As para. 2(b) of Schedule 6 of the Planning and Development Regulations 2001 makes separate reference to human beings, landscape, material assets, architectural heritage and archaeological heritage, the term, “cultural heritage” must be intended to refer to the unique inheritance of shared knowledge, customs and useful arts derived from living in this particular area and environment, including, but not confined to such matters as, language, folklore, music, dance, crafts, traditional artefacts and methods of doing things. This may of course be inter-related with one or more of the other factors mentioned in this subparagraph. The Inspector records in her Report that the concerns of local third-party appellants was that the proposed development would cause existing inhabitants to leave the area and deter prospective inhabitants from taking up residence there and substantial population decline would be likely to significantly affect the cultural heritage of the area. It is very difficult to see how the cultural heritage of the area could otherwise be affected by a wind farm development. In her Report the Inspector considered habitation patterns and trends in the area and objective evidence of the impact of wind-farms on population numbers and habitation choices derived from surveys carried out in other E.U. States with significant numbers of wind-farms and, in the U.S.A. In my judgment, it is being entirely unrealistic to expect that the respondent should have required the second notice party to provide further information and data on this issue. I am satisfied that the respondent was entitled rationally and reasonably to consider that it did not require further information from the second notice party in order to assess whether the proposed development was likely to have adverse or beneficial affects on the cultural heritage of this Gaeltacht area.
121. In light of the foregoing, I am satisfied that in the exercise of my discretion, I should decline to make an order of certiorari pursuant to the provisions of s. 50 of the Planning and Development Act 2000, and O. 84 of the Rules of the Superior Courts quashing the decision of the respondent made on the 11th February, 2011, to grant permission for the proposed development. In the Statement required to ground application for judicial review, the applicant additionally seeks further and other relief. In my judgment, the appropriate remedy to be granted to the applicant in this case, is a Declaration that the decision of the respondent insofar as, and to the extent that it purports to decide to grant planning permission in respect of or in any manner affecting the land of the applicant or any part of it, is void. The filed statement contains no claim for a permanent injunction or for damages.
North East Pylon Pressure Campaign Ltd v An Bord Pleanála (No. 1)
[2017] IEHC 338
JUDGMENT of Mr Justice Max Barrett delivered on 22nd August, 2017.
TABLE OF CONTENTS
(Numbers in square brackets are paragraph numbers).
I. Introduction [1]
II. Reliefs Sought [2]
III Some General Points Arising [3]
IV. Consent [4]
(i) Critical Issue Arising. [4]
(ii) Legislative Requirements. [5]
(iii) Frescati, et al. [9]
a. Overview. [9]
b. The decision in Frescati. [10]
c. Section 53 and Gormley. [16]
d. The Form and the Letter. [20]
A. Overview. [20]
B. The Form. [21]
C. The Letter. [25]
V. Entitlement to Make Application? [29]
(i) Critical Issue Arising. [29]
(ii) The Act of 1999 and the Regulations of 2000. [30]
(iii) A Consideration of Certain of the Affidavit Evidence. [32]
(iv) The Infrastructure Agreement. [35]
(v) Some Conclusions. [36]
(vi) The East-West Interconnector. [38]
(vii) Section 53 of the Act of 1927. [43]
a. Overview. [43]
b. The decision in Killross. [44]
(viii) Some Further Conclusions. [48]
VI. Designation, Bias, and Validity of Decision [49]
(i) Overview. [49]
(ii) The Question of Designation. [51]
a. The PCI Regulation. [51]
b. The European Union Law Dimension. [52]
(iii) Some Particular Aspects of the Case at Hand. [59]
VII. Bias [82]
VIII. What if the Court is wrong? [88]
(i) Overview. [88]
(ii) Issuance of Consent pursuant to s.182B. [89]
(iii) De Facto Designation. [91]
IX. Delay [95]
X. ‘Brexit’ [98]
(i) Concerns Raised by Applicants. [98]
(ii) Uncertainty as to the Future. [100]
(iii) Listing of Project. [104]
1. The PCI Regulation. [104]
2. The 2015 Regulation. [106]
(iv) Some Conclusions. [109]
XI. Error on the Face of the Record [111]
XII. The Inspector’s Report [113]
XIII. Access [115]
(i) Overview. [115]
(ii) The Substance of the Inspector’s Report. [124]
(iii) Question as to Consideration of Access. [141]
(iv) Complaints about information provided. [144]
(v) The Agricultural Liaison Officer/s. [151]
(vi) Boland et al.[153]
(vii) Some Further Observations as to Access. [161]
XIV. Alternatives [168]
(i) Overview. [168]
(ii) The Consideration of Alternatives Undertaken. [169]
a. Route Alternatives. [169]
b. Consideration of Technology, including Undergrounding. [176]
c. Cost-Benefit Analysis. [182]
(iii) Some Legal Issues Presenting. [183]
XV. Health Impacts [185]
(i) Electric and electro-magnetic fields. [185]
(ii) Childhood leukaemia. [187]
(iii) Other cancers. [188]
(iv) Non-cancerous diseases. [189]
(v) Children with Autism. [190]
(vi) Compliance with the ICNIRP Guidelines. [191]
XVI. The Whooper Swan [195]
XVII. Closing Submissions [198]
(i) Section 182B(10)(f). [199]
(ii) Ordinary and legal intent. [201]
(iii) ‘Brexit’ as an issue of need. [202]
(iv) Vires. [203]
(v) Which Routes Were Approved? (The ‘Yellow and Purple’ Issue) [206]
XVIII. Jus Tertii [219]
XIX. Closing [220]
I. Introduction
1. These proceedings concern a challenge to the decision of An Bord Pleanála on 19th December last to grant planning approval to EirGrid under s.182B of the Planning and Development Act 2000 for the proposed North-South 400kV Interconnector development located in counties Monaghan, Cavan and Meath. The overall North-South Interconnector project comprises a 400kV overhead line circuit that is approximately 138km long, inclusive of approximately 34km in the North, linking an existing 400kV substation in Woodland, County Meath with a planned substation in Turleenan, County Tyrone. If it proceeds, the North-South Interconnector project will provide a second high-capacity all-Ireland electricity interconnector. (The existing interconnector, a 275kV double circuit overhead line (such lines being sometimes referred to in the documentation before the court as ‘OHLs’) connects existing substations in counties Louth and Armagh).
II. Reliefs Sought
2. The principal reliefs sought by the applicants in their application are as follows:
(1) an order of certiorari quashing the decision of An Bord Pleanála, on 18th December, 2016, to grant approval under s.182A(1) of the Planning and Development Act 2000 for an interconnector of 138km length (inclusive of 34km located in Northern Ireland which will link the existing electricity network of Northern Ireland between Turleenan in County Tyrone and Woodland (near Batterstown) County Meath, which interconnector has been designated as a project of common interest (PCI) pursuant to the provisions of Regulation (EU) No. 347/2013 of the European Parliament and of the Council of 17th April, 2013, on guidelines for trans-European energy infrastructure (O.J. L115/39, 25.4.2013) (the ‘PCI Regulation’), and in particular a new single circuit 400kV overhead transmission line between Crossbane, County Armagh and Lengare, County Monaghan to the townland of Bogganstown, County Meath, which transmission line crosses the jurisdictional border between Ireland and the United Kingdom in the townlands of Lengare, County Monaghan and Crossbane, County Armagh and comprises 299 new lattice steel support structures ranging in height from 26 to 51 metres above ground and associated conductor, insulators and other apparatus, which determination was approved pursuant to s.182B of the Act of 2000; (notwithstanding the applicants’ contention to the contrary the impugned decision of An Bord Pleanála, as per the court’s analysis later below, extends solely to the portion of the North-South Interconnector that sits south of the border between this State and Northern Ireland);
(2) a declaration that in making its decision of 19th December, 2016, An Bord Pleanála failed to have regard (and/or sufficient regard) to the designation (pursuant to Commission Delegated Regulation (EU) 2016/89 of 18 November 2015 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (O.J. L19, 27.1.2016, 1) (the ‘2015 Regulation’)) of the proposed development as a Cluster-Ireland-United Kingdom interconnection, including one or more of the following PCIs: Ireland-United Kingdom interconnection between Woodland (IE) and Turleenan (UK) and Ireland-United Kingdom interconnection between Srananagh (IE) and Turleenan (UK);
(3) an order of certiorari quashing the “purported” decision of An Bord Pleanála of 19th December, 2016, granting approval under s.182B of the Act of 2000 for the proposed development of a 400kV electricity transmission interconnector linking the electricity transmission networks in Ireland and Northern Ireland;
(4) a declaration that the “purported” decision of An Bord Pleanála of 19th December, 2016, is contrary to and in breach of Council Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 2011, on the assessment of the effects of certain public and private projects on the environment (O.J. L26, 28.1.2012, 1), as amended (the ‘EIA Directive’);
(5) a declaration that An Bord Pleanála failed properly to consider and/or comply with the EIA Directive and failed to carry out an EIA, failed to ensure that the documentation lodged complied with the obligations under the said directive and failed to ensure appropriate public participation and/or failed to consider and/or apply any or any appropriate mitigation measures in respect of the EIA process;
(6) a declaration that the “purported” decision of An Bord Pleanála of 19th December, 2016 is contrary to and in breach of Council Directive 92 /43 /EEC of 21 May, 1992, on the conservation of natural habitats and of wild fauna and flora (O.J. L206, 22.7.1992, 7) (the ‘Habitats Directive’);
(7) a declaration that the “purported” decision of An Bord Pleanála of 19th December, 2016, infringes and/or violates the applicants’ rights pursuant to Arts. 40.3, 43 and 40.5 of the Constitution;
(8) a declaration that the said “purported” decision is contrary to Art. 6, Art. 8 and Protocol 1 of the European Convention on Human Rights as given effect by the European Concvention on Human Rights Act 2003;
(9) an order of certiorari quashing the decision of An Bord Pleanála of 19th December, 2016, as a “purported” competent authority under the PCI Regulation and/or the 2015 Regulation to grant the approval aforesaid;
(10) a declaration that An Bord Pleanála was not lawfully designated as a competent authority (as described in the PCI Regulation) in the “purported” decision of An Bord Pleanála of 19th December, 2016;
(11) a declaration that the decision of An Bord Pleanála of 19th December, 2016, is null and void (and/or voidable) as An Bord Pleanála was not, it is claimed by the applicants, lawfully designated as a competent authority as described in the PCI Regulation (and/or the 2015 Regulation);
(12) a declaration that the decision of An Bord Pleanála of 19th December, 2016, contains an error of law on the face of the record of the decision, as An Bord Pleanála was not, it is claimed by the applicants, lawfully designated as a competent authority as described in the PCI Regulation (and/or the 2015 Regulation);
(13) in the alternative, a declaration that the decision of An Bord Pleanála of 19th December, 2016, is ultra vires as An Bord Pleanála, it is claimed by the applicants, was not lawfully designated as a competent authority as described in the PCI Regulation and/or the 2015 Regulation;
(14) a declaration that the decision of An Bord Pleanála of 19th December, 2016, is ultra vires, in that there was no lawful basis for An Bord Pleanála to exercise decision-making powers in relation to a permit-granting procedure for PCIs and/or clusters of PCI;
(15) a declaration that the decision of 19th December, 2016, whereby An Bord Pleanála stated that it confined its decision to the matters pertinent to the Strategic Infrastructure Development (‘SID’) application and in particular issues arising in respect of appropriate assessment, environmental impact assessment and the consideration of the proper planning and sustainable development and did not consider that it was conflicted in any way by the separate administrative role fulfilled by An Bord Pleanála as the competent authority for PCIs constitutes an error of law on the face of the record; and
(16) an order of certiorari quashing the entirety of the decision of An Bord Pleanála considered, dealt with and/or determined the application in its decision of 19th December, 2016, gives rise to a reasonable apprehension of bias.
III Some General Points Arising
3. Before proceeding further, the court pauses to make some general remarks:
(1) the burden of proof to establish the grounds on which judicial review is sought rests on the applicants. (See, inter alia, Harrington v. An Bord Pleanála [2014] IEHC 232).
(2) the decision of An Bord Pleanála enjoys a presumption of validity. (See, inter alia, Ratheniska Timahoe and Spink (RTS) Substation Action Group & anor v. An Bord Pleanála [2015] IEHC 18).
(3) the applicable standard of review, in particular relating to the decision of An Bord Pleanála, for the purposes of the EIA Directive and in relation to the Appropriate Assessment is that identified in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.
(4) it is a significant feature of the case as pleaded that no leave has been granted to challenge the accuracy of any matter in the inspector’s report.
(5) although the applicants have put affidavit evidence before the court that addresses matters of visual impact, health and property values, no leave has been granted to raise any challenge in relation to those matters save in respect of two identified landowners.
(6) the effect of the permission is not to grant any interest in property, nor indeed to authorise anything other than the development, the subject of the of the application. Although, as counsel for the applicants noted, “permission is an appendage to the title to…property” (per Henchy J. in Readymix Éire Ltd v. Dublin County Council (Unreported, Supreme Court, 30th July, 1974), 6) that observation was made in the context of a decision that the terms of the permission had to be clearly ascertainable and identifiable and nothing more.
(7) although the amount of material before the court was extensive, the court cannot but note the vastness of the enterprise that has preceded the within application. Thus (i) the oral hearings in this case were preceded by an extremely detailed environmental impact statement that extended over five volumes and comprised some 14,000 pages of text and maps; (ii) some 903 sets of submissions from members of the public were responded to by detailed submissions or replying submissions from EirGrid; (iii) those (entirely proper) public submissions, as one would instinctively expect, presented a wide range of issues from matters affecting the particular situations of particular landowners to very general issues; (iv) there were 35 days of oral hearing over a period of eleven weeks, with some 204 people addressing the inspector; and (v) the inspector’s report features over 600 pages of analysis.
IV. Consent
(i) Critical Issue Arising.
4. So far as the issue of consent is concerned, the critical issue arising is whether there is any rule (a) in legislation, (b) at common law, or (c) pursuant to the Constitution or the European Convention on Human Rights which mandates that EirGrid can only seek approval pursuant to s.182A of the Act of 2000 with the consent of the owners of an affected property?
(ii) Legislative Requirements.
5. Section 182A of the Act of 2000 provides, inter alia, as follows:
“(1) Where a person (hereafter referred to in this section as the ‘undertaker’) intends to cary out development comprising or for the purposes of electricity transmission, (hereafter referred to in this section and section 182B as ‘proposed development’), the undertaker shall prepare, or cause to be prepared, an application for approval of the development under section 182B and shall apply to the Board for such approval accordingly.
(2) In the case of development referred to in subsection (1) which belongs to a class of development identified for the purposes of section 176, the undertaker shall prepare, or cause to be prepared, an environmental impact statement or Natura impact statement or both of those statements, as the case may be, in respect of the development.
(3) The proposed development shall not be carried out unless the Board has approved it with or without modifications….” [Emphasis added].
6. By way of initial observation, it is perhaps notable that the requirement to prepare an application for approval (or to cause same to be prepared) rests on the person who intends to carry out a development within the meaning of s.182A.
7. As to what constitutes “transmission”, this is defined in s.182A(9) by reference to the Electricity Regulation Act 1999 and reflects the division of function which is provided for under the regulations envisioned in that earlier legislation. Per s.182A(9):
“In this section ‘transmission’, in relation to electricity, shall be construed in accordance with section 2(1) of the Electricity Regulation Act 1999 but, for the purposes of this section, the foregoing expression in relation to electricity, shall also be construed as meaning the transport of electricity by means of –
(a) a high voltage line where the voltage would be 110 kilovolts or more, or
(b) an interconnector, whether ownership of the interconnector will be vested in the undertaker or not.” [Emphasis added].
8. A number of points might usefully be made at this juncture:
(1) the above-quoted provisions make no reference to, nor are they obviously or necessarily consistent with a requirement of landowner consent as an element of a successful development consent application.
(2) in contrast to applications made under s.34 of the Act of 2000, there is no provision in the regulations governing applications of the kind now in issue that demonstrates any intention that consent from owners of property affected by development is required for the purposes of such an application.
(3) on a more general note, if one steps back for a moment from the detail of the legislative provisions in issue, it is unsurprising that there would be a want of provision making landowner consent a pre-requisite to, or a necessary component of, a successful development consent application. There are a range of applications that can be brought under the legislation involving public utility works which would conceivably involve development on the lands of many different persons. (Another example of such an application is an application under s.182C of the Act of 2000 which is concerned with strategic gas infrastructure developments.) Were the consent of all of those persons to be a mandatory element of such applications, the applicable application process would quickly become unworkable. Thus, regrettably but almost certainly necessarily, and not without regard for individual rights, but concomitant with that concern for the overall public good which central government invariably and properly brings to the formulation of national policy and legislation, individual landowner consent is neither a pre-requisite to, nor a necessary component of, a successful development consent application, whether by virtue of primary or secondary legislation.
(iii) Frescati, et al.
a. Overview.
9. To sustain the contention that the court should interpolate into the applicable legislation a requirement for landowner consent, counsel for the applicants has sought (a) to rely upon the decision of the Supreme Court in Frescati Estates v. Walker [1975] I.R. 177, and (b) to deduce from An Bord Pleanála’s standard application form and a letter written by ESB in the course of the events under consideration, an implied obligation to obtain landowner consent even in the context of an application made under s.182A. Both propositions, the court respectfully concludes, are without foundation.
b. The decision in Frescati.
10. Frescati House is one of the lost gems of 18th-century Irish architecture, allowed by an earlier generation to fall into decay and eventual ruin despite its architectural merit and, as importantly (perhaps even more importantly), its historical significance as the onetime favourite residence of Lord Edward Fitzgerald, the prominent United Irishman. In the case that went before the Supreme Court in Frescati Estates v. Walker, the plaintiffs were the owners of the house and surviving demesne. They proposed to demolish it and to build in its place a shopping centre wanting in aesthetic merit. Ms. Walker, the defendant, was an activist concerned about the demolition of the house. Despite having no estate or interest in the plaintiff’s property, she applied for planning permission that would have required the retention of the house had it been granted. The Supreme Court decided that in those circumstances Ms Walker’s application for permission was not a valid application on the basis that although the Local Government (Planning and Development) Act 1963 did not require Ms Walker to have an estate or interest in the property described in her application, it did require that her application should have the imprimatur of the owner of an estate in the property sufficient to enable such applicant to carry out the proposed development. Per Henchy J., at 185-187:
“Not alone has the defendant no legal estate or interest in it but the trial judge found as a fact that “she has no intention or hope of acquiring any estate of any kind in the property or of developing it.”
…
The sweep of the argument of counsel for the defendant, however, carries with it the further submission that because no limiting qualifications are laid down by the relevant sections for an applicant, anyone can be an applicant for development permission. An applicant may not be debarred, the argument runs, not alone because he has no legal estate or interest in the property but also irrespective of the genuineness or otherwise of the proposed development, or whether the applicant is acting in good faith or not, or whether those with a legal estate or interest know or approve of the application, or whether other (and possibly conflicting) applications have been made or are pending. There is nothing in the Act, it is said in effect, to debar a pauper from making an application for permission for a multi-million pound development of a property which he has only read about in a newspaper.
…
That the proposition that virtually anyone may apply for permission to develop a particular property could lead to strange incongruities was shown by instances raised in the course of the argument. However, it is a matter of principle that a statute – particularly a statute like the present one which makes substantial inroads on pre-existing rights – should not be construed as intending to confer unqualified and indiscriminate rights on people generally in respect of another’s property such as the right to avail themselves of the legal processes of a planning application so as to gratify what may be merely an idle or perverse whim. The long title of this Act proclaims its purpose to be ‘…to make provision in the interests of the common good, for the proper planning and development of cities, towns and other areas…’ The powers given by the Act must be read as being exercisable in the interests of the common good and the Courts should lean against a construction which would make the exercise of such powers available to an individual for the purpose of advancing a purely personal motive at the expense of the general purpose of the Act.
Apart from the irreconcilability with the general principle of the proposition put forward on behalf of the defendant, a number of specific provisions of the Act clearly show its unsoundness. For the sake of brevity I shall confine myself to a selection of those provisions for the purpose of showing that the operation of the Act requires that an applicant for permission must have a particular degree of standing….”
11. A couple of points might be made in connection with the above-quoted text:
(1) the “Not alone…developing it” element of same provides a significant and obvious point of distinction between the circumstances that pertained in Frescati and the type of situation with which the court is now concerned, where a legislative provision (s.182A) is directly engaged by an application by a party (EirGrid) which intends to carry out the relevant development.
(2) the “That the proposition…perverse whim” element of same is also significant. In this segment of his judgment Henchy J. formulates and/or applies a common law rule of statutory construction as to how statute-law falls properly to be construed – and unsurprisingly elects to construe the applicable statute as a whole, and to have the effect that it does not permit an application by a party who is gratifying an idle or perverse whim or seeking an unqualified and indiscriminate right over somebody else’s property. The court cannot but note in passing that that is a long way from the facts of the within proceedings where the court is confronted with a body (EirGrid) that is designated by statute with particular purposes concerning the operation of the State’s electricity transmission system and seeking development consent under a self-contained legislative code designed for that end.
12. Henchy J. moves on in his judgment to consider a selection of provisions from the Act of 1963 that he believes to show that the operation of that Act (and the judgment has equal applicability in the context of current planning legislation) requires that an applicant for planning permission have a particular degree of standing. Per Henchy J., at 188-190:
“Section 25, sub-s. 1, of the Act of 1963 requires the Minister to make permission regulations and enacts that permission shall be granted on application being made in accordance with the regulations and subject to the requirements of the regulations. Sub-section 2 of that section proceeds to set out what the regulations may require from applicants. The regulations may require any applicants ‘to furnish to the Minister and to any other specified persons any specified information with respect to their applications’ (para. c) and ‘to submit any further information relative to their applications (including any information as to any estate or interest in or right over land)’ and ‘the production of any evidence to verify any particulars of information given by any applicants’ – see paras. (d) and (e).
Since applications cannot be successful unless they comply with the requirements of the regulations (s. 25, sub-s. 1), the legislature must be credited with the intention of delineating the range of eligible applicants by the extent of the permitted requirements. Thus, a total stranger to the property, who has no liaison with those interested in it, could scarcely have been envisaged as a successful applicant, for normally he could not furnish the specified information (including any estate or interest in or right over the land) or produce evidence to verify particulars given as to such information.
Furthermore. when we turn to s. 9, sub-s. 1, of the Act of 1963 we find that a planning authority may, for any purpose arising in relation to their functions under the Act, require the occupier or the person receiving the rent to state in writing within a specified period particulars of the estate, interest or right by virtue of which he is an occupier or receives the rent and the name and address (so far as they are known to him) of every person who to his knowledge has any estate or interest in or right over or in respect of the property. Sub-section 2 of that section makes it an offence punishable on summary conviction with a fine not exceeding £20 for a person from whom such information is required to fail to state it within the time specified, or to make a statement in writing which is to his knowledge false or misleading in a material respect.
The effect of s. 9 is that when an application for permission to develop is made, the planning authority, in order to carry out their functions under the Act, may find it necessary to serve on the occupier or the person receiving the rent the notice referred to in sub-s. 1 of the section; if the person so served does not comply with the notice in the way specified in sub-s. 2, he will become liable to the sanction of the criminal law. If, as counsel for the defendant contends, applications for development permission may be made in multiplicity and indiscriminately by persons at large, obligations would be cast on occupiers of or persons receiving rent out of property and failure to comply with those obligations would subject such people to a fine with a liability to imprisonment in default of payment. The fundamental rule that a statute must be construed so as to keep its operation within the ambit of the broad purpose of the Act rules out such an interpretation; otherwise it would be possible for persons, by means of frivolous or perverse applications, to cause the imposition of duties and liabilities which would be wholly unnecessary for the operation of the Act in the interests of the common good.
Section 83 of the Act of 1963 provides an equally cogent reason why the Act does not envisage persons unconnected with any real interest in property or its development being allowed to apply for development permission. That section provides that an authorised person (i.e. , a person so authorised for the purposes of the section by the planning authority or the Minister) may enter, subject to an order of the District Court prohibiting or restricting the entry, on any land for any purpose connected with the Act and may do all things reasonably necessary for the purpose for which the entry is made and, in particular, may survey, make plans, take levels, make excavations, and examine the depth and nature of the subsoil. If the Act had to be read as allowing that degree of intrusion at the behest of any individual who chooses to make a development application in respect of another person’s property, the constitutionality of the statute would be very much in question.
The inequities and anomalies that would follow if there is to be an unrestricted right to apply for permission to develop another person’s property is shown by the terms of many provisions of the Act. For example, since the planning authority must investigate and deal with each application with sufficient care to ensure that their decision will have due regard to the development plan required by Part III of the Act, a group of people making multiple applications in respect of properties in which they have no legal interest, and which they have no intention or hope of developing, could put such a strain on the resources of the planning authority as to stifle the operation of the Act in delay and confusion. Since s. 41 requires particulars of all applications for development permission to be entered on the register (which s. 8 requires the planning authority to keep), and since s. 28, sub-s. 5, provides that a grant of permission will normally inure for the benefit of the property and all persons interested in it, the register (which incorporates documents by reference) would become encumbered with bulk and detail if applications without restriction were allowed, and consequently might prove confusing or misleading for those who would be required to consult it.If there need never be a connexion between the applicant and those who have a legal estate or interest in the property, the period for appealing against the decision of the planning authority would be, for the applicant, one month from the receipt of the decision, but for others (who, if the argument on behalf of the defendant is correct, could include those with a legal estate or interest) it would be 21 days from the day of the giving of the decision (s. 28, sub-s. 5) – thus giving preferential treatment to someone who may be merely a meddlesome interloper. It is no answer to this complaint to say that a grant or refusal of an application for development permission cannot prejudice a subsequent application. As I have shown, the mere making of an application by a person with no legal interest can operate to the detriment of the owner or occupier. And in any case, I find nothing in the scheme of the Act that would allow interfering, if well-intentioned, outsiders to intrude into the rights of those with a legal interest to the extent of lumbering the property with unwanted grants or refusals of permission, thus cluttering the title.
To sum up, while the intention of the Act is that persons with no legal interest (such as would-be purchasers) may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word ‘applicant’ in the relevant sections is not given a restricted connotation. The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interests of the common good, for proper planning and development.
Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question. There will thus be sufficient privity between the applicant (if he is not a person entitled) and the person entitled to enable the applicant to be treated, for practical purposes, as a person entitled.
As for the present case, the defendant’s application was invalid and should not have been entertained for she had no legal estate or interest in the property and her application was made without the knowledge or approval of the plaintiffs who, as the owners of the fee simple, are the only persons who would be legally competent to carry out the development for which the defendant sought permission.”
13. Perhaps five points might usefully be made in connection with the just-quoted text:
(1) Henchy J.’s observations concerning s.25(2) of the Act of 1963 are of no relevance in the context of the within application because, as mentioned previously above, the regulations applicable to the form of application now in issue do not require the provision of such information as falls to be provided in applications under s.34 of the Act of 2000. That this is so inclines the court to the conclusion that s.182A, properly construed, does not envision, let alone require, that landowner consent be provided as a pre-requisite to, or a necessary element of a successful development consent application.
(2) Henchy J.’s observations regarding s.9 of the Act of 1963 (a provision reflected but not repeated in s.8 of the Act of 2000) are not of relevance to the within application because the application in issue does not even begin to approach, let alone occupy the realm of frivolity and/or perversity.
(3) Henchy J.’s observations concerning s.83 of the Act of 1963 (as reflected in s.252 of the Act of 2000) are not of relevance in the context of the within application for much the same reason as was just touched upon in the last point, being that the court is not concerned here with an application that is made by, to borrow a colloquialism ‘any old person’ but rather by an entity that is an ‘undertaking’ both within the meaning of s.182A of the Act of 2000 and for the purposes provided for in that legislation.
(4) as to Henchy J.’s points concerning “[t]he inequities and anomalies that would follow if there is to be an unrestricted right to apply for permission to develop another person’s property…”, again his reasoning is not of relevance in the context of the circumstances now presenting, where the court is confronted with an entity that is an ‘undertaking’ within the meaning of s.182A and for the purposes provided for in that legislation. Here the court is not dealing with an entity that, to use the terminology of Henchy J., though the court suspects that even in his day it was the terminology of a bygone era, can properly be described as a “meddlesome interloper”.
(5) as to Henchy J.’s summation of his analysis and, in particular, his observation that “while the intention of the Act is that persons with no legal interest (such as would-be purchasers) may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word ‘applicant’ in the relevant sections is not to be given a restricted connotation”, the court would merely observe that when it comes to s.182A one is dealing necessarily and solely with a restricted class of would-be applicant.
14. By way of overall observation, it can be seen from the preceding analysis that Frescati is a case the rationale of which is applicable to applications for permission of the kind now reflected in s.34 of the Act of 2000; it has no application to s.182A for at least three reasons:
(1) the regulations applicable to permission granted under s.34 of the Act of 2000 specifically require information as to interest or estate in land; by contrast, the regulations applicable to s.182A do not (a point that is returned to again later below).
(2) the legislation governing what might be styled applications for planning permission (as opposed to s.182A approval) was found by the Supreme Court in Frescati to be inconsistent with a scenario in which persons not having a legal interest in lands could be allowed make an application. By contrast, the legislation which governs the application made by EirGrid is consistent (and consistent only) with EirGrid being entitled to bring an application of the form that it has brought, and not requiring the consent or agreement of any other party so to do.
(3) none of the reasoning of the Supreme Court in Frescati, insofar as it is directed towards intermeddlers applies in the context of a statutory body empowered to undertake public utility works of a very specific kind such as those in issue here.
15. The court respectfully considers that the foregoing analysis suffices to deal with the consent issue raised by the applicants: there is no consent requirement in applicable legislation (it would perhaps be surprising if there were); and the decision in Frescati, pointed to by the applicants as a source of such a requirement, has no application to the construction of the provisions with which the court is now concerned. The court does not consider that it is necessary to address in detail the decision of the Supreme Court in Keane v. An Bord Pleanála [1998] 2 I.L.R.M. 241, beyond noting that nothing therein detracts from the court’s uncontroversial reading and application, in the foregoing pages, of the decision of the Supreme Court in Frescati.
c. Section 53 and Gormley.
16. Section 53 of the Electricity Supply Act 1927, as amended by the Electricity (Supply) (Amendment) Act 1945 – it has been amended again since – provided, inter alia, as follows in respect of wayleaves:
“(1). The Board and also any authorised undertaker may, subject to the provisions of this section, and of regulations made by the Board under this Act place any electric line above or below ground across any land not being a street, road, railway, or tramway….
(3). Before placing an electric line across any land or attaching any fixture to any building under this section the Board or the authorised undertaker (as the case may be) shall serve on the owner and on the occupier of such land or building a notice in writing stating its or his intention so to place the line or attach the fixture (as the case may be) and giving a description of the nature of the line or fixture and of the position and manner in which it is intended to be placed or attached….
(4). If within seven days after the service of such notice the owner and the occupier of such land or building give their consent to the placing of such line or the attaching of such fixture (as the case may be) in accordance with such notice either unconditionally or with conditions acceptable to the Board, or to the authorised undertaker and approved by the Board (as the case may require), the Board or the authorised undertaker may proceed to place such line across such land or to attach such fixture to such building in the position and manner stated in such notice.
(5). If the owner or occupier of such land or building fails within the seven days aforesaid to give his consent in accordance with the foregoing sub-section the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land or attach such fixture to such building in the position and manner stated in the said notice….
(9). Where the Board or an authorised undertaker is authorised by or under this section to place or retain any electric line across any land or to attach or retain any fixture on any building the Board or such authorised undertaker (as the case may be) may at any time enter on such land or building for the purpose of placing, repairing, or altering such line or such fixture or any line or apparatus supported by such fixture.”
17. In Electricity Supply Board v. Gormley [1985] I.R. 129, Mrs. Gormley had acquired property after ESB obtained planning permission for development comprising the development of a transmission system which crossed her land. Wayleave notices were served under section 53 as it then stood. Mrs Gormley raised a number of objections to what was to be done by ESB, one of which was that the applicable legislation was unconstitutional because it did not provide any mechanism for the payment of compensation for what was in effect the imposition of a wayleave on her property. She failed in this contention in the High Court but she succeeded on appeal to the Supreme Court, that court deciding that the planning permission in issue was invalid consequent upon the absence of any facility for compensation. As mentioned in the above-mentioned report of the judgment, at 158, as a consequence of the decision of the Supreme Court, the Oireachtas subsequently enacted the Electricity Supply (Amendment) Act 1985 which substituted a new s.53(5) into the Act of 1927, which new provision provided as follows:
“(5). If the owner or occupier of such land or building fails within the seven days aforesaid to give his consent in accordance with the foregoing subsection, the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land or attach such fixture to such building in the position and manner stated in the said notice, subject to the entitlement of such owner or occupier to be paid compensation in respect of the exercise by the Board or authorised undertaker of the powers conferred by this subsection and of the powers conferred by subsection (9) of this section, such compensation to be assessed in default of agreement under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, the Board for this purpose being deemed to be a public authority.”
18. Although Gormley is a renowned decision in terms of the conclusions arrived at by the Supreme Court as to the entitlement to compensation, its particular significance in the context of the within application is that, in the High Court, Mrs Gormley raised an issue by reference to Frescati, being that although she had acquired the property after the ESB obtained planning permission for the development, nonetheless the ESB did not have her consent to the development. Dealing with this aspect of matters, at 141, Carroll J. observes as follows:
“I am satisfied that the ESB had sufficient interest to support their application for planning permission. In Frescati Estates v. Walker [1975] I.R. 177 Henchy J. said the word ‘applicant’ must be given a restricted connotation and the extent of that restriction must be determined by the need to avoid unnecessary and frivolous applications for planning permission. The test which Mr. Justice Henchy laid down in that context at p. 190 of the report was that in order to be valid an application must be made:-‘either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question. There will thus be sufficient privity between the applicant (if he is not a person entitled) and the person entitled to enable the applicant to be treated, for practical purposes, as a person entitled.’
When this is applied to the present case, the ESB had sufficient interest given by statute to enable it to carry out the proposed development on the property in question. It is also obvious that the application was neither frivolous nor unnecessary. Therefore the ESB falls within the restricted meaning of the word ‘applicant’ as set out in that judgment.”
19. The reasoning of Carroll J. in the above-quoted text applies with equal vigour to the within proceedings. Yes, there are differences between that case and this because (i) in Gormley, ESB was carrying out the development and was the party which sought planning permission, whereas (ii) (and in truth this is just the ‘flip-side’ of (i)) the impugned application in the within proceedings has been brought by EirGrid and the only body with powers under s.53 of the Act of 1927 is the ESB. However, to focus on those differences is, to borrow a colloquialism, ‘to miss the wood for the trees’. The critical points to note are that (a) EirGrid is in a position whereby it can procure ESB to do the works and ESB is in a position where it can exercise the powers, and (b) s.53 is directed to and concerned with the intent of the undertaker – and the undisputed evidence before the court (and the planning inspector) is (was) that EirGrid intends to carry out the development, it intends to do so with ESB constructing the development, and ESB has the requisite powers, insofar as the need arises, to allow that development to be done where there is no landowner consent. So while it is certainly the case that there is a difference, and an obvious one, between ESB as repository of the statutory power and EirGrid as applicant, it is a distinction without a difference.
d. The Form and the Letter.
A. Overview.
20. If applicable legislation does not require landowner consent (and here it does not) and if Frescati is inapplicable (and for the reasons identified previously above it is inapplicable), on what legal basis can the applicants construct a requirement that landowner consent be obtained by EirGrid? Perhaps surprisingly, the applicants have pointed in this regard, inter alia, to (a) An Bord Pleanála’s standard ‘Application Form for Permission/Approval in respect of a Strategic Infrastructure Development’ and (b) a letter of 14th May, 2015, from the ESB to An Bord Pleanála.
B. The Form.
21. As to An Bord Pleanála’s ‘Application Form for Permission/Approval in respect of a Strategic Infrastructure Development’ there is: (i) no such form prescribed by law; (ii) for the reasons stated previously above, no requirement that a person making application under s.182A of the Act of 2000 obtain landowner consent; and (iii) no way that the said form could change this legal position – in and of itself the form is something of a legal nothing. Be that as it may, the applicants have pointed to Box 7 of the said form as support of their argument as to the need for landowner consent. The detail of that box, as completed, is replicated below:
“7. Legal Interest of Applicant in respect of the site the subject of the application:
Please tick appropriate box to show applicant’s legal interest in the land or structure: Owner Occupier
Other
Where legal interest is ‘Other’, please expand further on your interest in the land or structure.
EirGrid plc is the licensed Transmission Service Operator for Ireland pursuant to the provisions of the Electricity Regulation Act 1999. Pursuant to the provisions of S.I. N. 445/2000, EirGrid plc has the exclusive function to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system.
The Electricity Supply Board is the licensed Transmission System Owner for Ireland pursuant to Section 14 of the Electricity Regulation Act 1999.
The proposed transmission infrastructure will be constructed by the Electricity Supply Board pursuant to statutory powers.
If you are not the legal owner, please state the name and address of the owner and supply a letter from the owner of consent to make the application as listed in the accompanying documentation.
The owner of Woodland 400 kV Substation is the Electricity Supply Board. A letter of consent and approval to the making of the application from the Electricity Supply Board of 27 Lower Fitzwilliam Street, Dublin 2 is included in Schedule 2 attached to this Application Form. The Electricity Supply Board is the licensed Transmission System Owner for Ireland pursuant to Section 14 of the Electricity Regulation Act, 1999.
The owner of the Temporary Construction Material Storage Yard to be located in the townlands of Monaltyuff and Monaltybane, Carrickmacross, County Monaghan is [Name and Address Stated]. A letter of consent and approval to the making of the application form from [the person aforesaid] is included in Schedule 2 attached to this Application Form.
Does the applicant own or have a beneficial interest in adjoining, abutting or adjacent lands? If so, identify the lands and state the interest.
EirGrid plc, the applicant for approval, does not have a beneficial interest in adjoining, abutting or adjacent lands. However, EirGrid Interconnector Limited (a wholly owned subsidiary of EirGrid plc) has an interest in lands within and adjacent to the southern portion of the overall 400 kV Substation, in the townland of Woodland, in the Barony of Ratoath, in the Electoral Division of Dunshaughlin, County Meath which comprises the western termination node of the existing East West Interconnector (EWIC).
22. Try as it has, the court does not see in the text inserted by EirGrid in the above-quoted segments of the application form anything other than a description of EirGrid’s interest that conforms with (i) the requirements of s.182A of the Act of 2000 and (ii) the decision of the High Court in Gormley. EirGrid commences by identifying itself as the licensed transmission system operator which, pursuant to the Act of 1999, has the exclusive function to operate, ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system. That is its interest. It is its statutory interest in pursuing the development and it is properly recorded in the context in which the question is asked. By contrast, the ESB is (correctly) described as the licensed transmission system owner pursuant to the Act of 1999 Act. And that is where the ESB comes into the process, not just because of its sub-station ownership but because it is the transmission system owner for Ireland. Of final note in this regard is that the proposed transmission infrastructure will be constructed by the ESB pursuant to its statutory powers, being the very interest that Carroll J. found to be sufficient in Gormley, having regard to her construction of Frescati. As to identifying the legal owner and providing a suitable consent letter, the owner of the Woodland substation is (correctly) identified as the ESB; reference is made to a letter of consent but again it is made clear that the ESB is the licensed transmission system owner for Ireland under s.14 of the Act of 1999. So the application form in its own terms makes it clear that ESB is being referenced, not merely in the context of ownership of the substation, but also in the context of its ownership of the transmission system.
23. At the end of An Bord Pleanála’s ‘Application Form for Permission/Approval in respect of a Strategic Infrastructure Development’, the following “General Guidance Note” (in the version as furnished to the court) appears:
“The range and format of material required to be compiled/submitted with any application in respect of a proposed strategic infrastructure development shall generally accord with the requirements for a planning application as set out in the Planning and Development Regulations, 2001 to 2011 and those Regulations should therefore be consulted prior to submission of any application.”
24. As the court understands the applicant’s contentions, they include the contention that this general guidance note creates a legal obligation which does not otherwise exist under the legislation on EirGrid to obtain landowner consent. But if the court might borrow from the Ronseal man, this “General Guidance Note” ‘does exactly what it says on the tin’…and no more. Thus it is general guidance (so it is not specific), it is merely guidance (so it is not prescriptive), and it neither purports to, nor could, establish a legal obligation of the type contended for.
C. The Letter.
25. Turning to the letter of 14th May, 2015, from the ESB to An Bord Pleanála, it is, with respect, very hard to see how this letter adds to the legal analysis one way or the other. Nonetheless it was the focus of some attention on the part of the applicants at hearing and thus falls to be considered here. The letter commences with a statement of the statutory background and role of each of the ESB and EirGrid, then continues as follows:
“Pursuant to Regulation 18.1(a) of [the European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000)]…ESB and EirGrid are required to enter into an agreement for the purpose of enabling EirGrid as Transmission System Operator to discharge its functions under S.I. No. 445/2000. On 16th March, 2006, ESB and EirGrid accordingly entered into such an agreement, known as the Infrastructure Agreement.
Pursuant to clause 7.6 of the Infrastructure Agreement, all activities connected with, seeking and/or obtaining planning permission/approval (if required) and any other consents required by the Transmission System Operator to discharge its functions as such, shall be the sole responsibility of the Transmission System Operator, i.e. EirGrid.
ESB is obliged under the legislation and the Infrastructure Agreement cited above to facilitate EirGrid’s planning intentions in the furtherance of EirGrid’s functions as Transmission System Operator. Therefore, pursuant to the Infrastructure Agreement and for the purposes of the Planning and Development Act 2000, as amended, ESB, as the licensed Transmission System Owner (and a person with a legal interest in the lands the subject-matter of the enclosed application for planning approval) hereby consents to the making by EirGrid of this application for planning approval, which EirGrid considers necessary.”
26. The most sensible reading of this letter as a whole is that its provision is referable (a) to its interest in the Woodland substation, and (b) to ESB’s status as licensed transmission system owner. Any suggestion that the letter is referable solely to (a) is patently wrong when one has regard to the substance of the letter. After all, were it not for (b), there would be no need to repeatedly state, as the letter does, that ESB is the licensed transmission system owner under Section 14 of the Act of 1999.
27. In passing – and the court will return to the EirGrid-ESB Infrastructure Agreement in more detail later below – the court notes the reference in the above-quoted text to cl. 7.6 of that agreement. Though the significance of that agreement was somewhat underplayed at the hearing of the within application, it seems to the court notable that the Infrastructure Agreement itself provides in cl. 7.6 for EirGrid’s function in seeking a consent of the kind that was in fact provided by ESB in the context of the now-impugned application process. The ESB, in other words, is obliged under, inter alia, the Infrastructure Agreement to facilitate EirGrid’s planning intentions. Hence, in the letter, pursuant to the Infrastructure Agreement, and for the purposes of the Act of 2000, ESB (as licensed transmission system owner) consents to the making by EirGrid of the now-impugned application; and on its own terms the letter is provided to facilitate EirGrid’s planning intentions and in furtherance of EirGrid’s functions as transmission system operator.
28. The court began this section of its judgment by posing the question whether there is any rule (a) in legislation, (b) at common law, or (c) pursuant to the Constitution or the European Convention on Human Rights which mandates that EirGrid can only seek approval pursuant to s.182A of the Act of 2000 with the consent of the owners of an affected property? In this regard, the following conclusions, it seems to the court, may reasonably be stated by reference to the foregoing analysis:
(1) the question of whether a person needs a legal or beneficial interest to make an application for development consent is determined by the statutory provisions governing that consent.
(2) the decision of the Supreme Court in Frescati establishes a rule of statutory construction which, when brought to bear on the Act of 2000 yields the result that that Act allows EirGrid to make the now-impugned application and imposes no constraint by reference to landowner consent.
(3) the decision in Frescati is limited in scope to an applicant for permission who is seeking to assert an indiscriminate and unqualified right in order to gratify a whim. Thus it is not applicable to a body such as EirGrid that is discharging a function in the public interest and common good.
(4) having regard to the fact that ESB will construct the interconnector, having regard to the fact that it has the statutory power to acquire interests and having regard to the relationship between ESB and EirGrid under the internal electricity market regulations, the requisite interest under Gormley exists (if it is necessary indeed to proceed to an application of Gormley and, for the reasons stated elsewhere above, the court is not persuaded that it is).
(5) no part of the application form can or does change the legal position as described by the court in the preceding pages; nor does the letter from the ESB.
(6) no provision of the Constitution or the European Convention on Human Rights alters the foregoing conclusions.
V. Entitlement to Make Application?
(i) Critical Issue Arising.
29. The next issue that the court considers is whether EirGrid is entitled to make an application for approval for the North-South Interconnector under s.182A of the Act of 2000. Although counsel for the applicants suggested at hearing that this issue was not being pressed, it seems that it may continue to be a live issue and the court will therefore address it. In essence, the issue ‘boils down’ to the meaning of the phrase “carry out development” in s.182A. The court will also consider hereafter (i) the wayleave powers of the ESB under s.53 of the Act of 1927 and (ii) the issue contended to present as regards the East-West connector, both of which matters were referenced by counsel for the applicants in this context, though neither of which, the court respectfully concludes, is relevant to the issue of entitlement.
(ii) The Act of 1999 and the Regulations of 2000.
30. Mention has already been made of the text of s.182A, the reference therein to “electricity transmission”, the definition of that term in s.182A(9) by reference to the Electricity Regulation Act 1999, and the express provision in that subsection that “for the purposes of this section, the foregoing expression [i.e. ‘electricity transmission’], in relation to electricity, shall also be construed as meaning the transport of electricity by means of [inter alia]…(b) an interconnector, whether ownership of the interconnector will be vested in the undertaker or not”. But perhaps especially worth remembering in the context of the issues now under consideration is the emphasis placed on the concept of ‘development’ in s.182A. It will be recalled that that provision commences “Where a person…intends to carry out development comprising or for the purposes of electricity transmission…[that person] shall prepare, or cause to be prepared, an application for approval of the development…”. Indeed, it would not be an overstatement to assert that the notion of ‘development’ dominates s.182 and, as will be seen hereafter, the function of development has been vested by statute in EirGrid. Also notable in this context are the European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000) which provide as follows, at regs. 8(1), 8(6)(a), 18(1)(a) and 19:
“(1) Subject to paragraph (2), the transmission system operator shall have the following exclusive functions:
(a) to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system, and to explore and develop opportunities for interconnection of its system with other systems, in all cases with a view to ensuring that all reasonable demands for electricity are met and having due regard for the environment….
…
8(6)(a) Within such time that the Commission may direct, the transmission system operator shall prepare a plan (in these Regulations referred to as the ‘development plan’) for the development of the transmission system in order to guarantee security of supply, which shall relate to a period of 5 calendar years from the date on which the plan is prepared by the transmission system operator.
…
18(1)(a) EirGrid and the Board shall, no later than the effective date and subject to the approval of the Commission, enter into an agreement (in these Regulations referred to as the ‘infrastructure agreement’) for the purpose of enabling the transmission system operator to discharge its functions under these Regulations.
…
19. The transmission system owner shall –
(a) as asset owner, maintain the transmission system and carry out construction work in accordance with the transmission system operator’s development plan, subject to the provisions of Regulation 18(3),
(b) in accordance with the infrastructure agreement with the transmission system operator under Regulation 18 implement any other works required under the development plan, and carry out any other requirement applicable to it under these Regulations, having due regard for the environment,
(c) provide to the transmission system operator such information as the transmission system operator requires to ensure the secure and efficient operation, development and maintenance of the transmission system or otherwise in order to discharge its functions under these Regulations,
(d) have a duty to indicate to the transmission system operator and the Commission, within such period as shall be specified by the direction of the Commission, the measures which it proposes to take to implement the development plan in accordance with the infrastructure agreement,
(e) have a duty not to dispose of any assets constituting part of the transmission system or to create any encumbrance over the transmission system without prior notification, in writing, to the transmission system operator and the Commission.
(f) have a duty not to dispose of to an extent considered material by the Commission, any assets constituting part of the transmission system or create to an extent considered material by the Commission, any encumbrance over the transmission system, without the prior written consent of the transmission system operator and the Commission,
(g) comply with any regulations or directions applicable to it made by the Commission under these Regulations or under the Act of 1999, and
(h) otherwise comply with the licence issued under section 14(1)(f) of the Act of 1999.”
31. So EirGrid is the transmission system operator and has the exclusive function of developing the grid, whereas ESB, as transmission system owner, has the function of carrying out construction, as well of course as owning the grid.
(iii) A Consideration of Certain of the Affidavit Evidence.
32. How the legislative scheme plays out in practice is helpfully teased out in detail in some of the affidavit evidence before the court and certain of that affidavit evidence is worth reciting here. Thus Mr John Fitzgerald, the Director of Grid Development and Interconnection at EirGrid, avers, inter alia, as follows:
“EirGrid plc is a public limited company and is the licensed Transmission System Operator [TSO] for Ireland. EirGrid plc has the exclusive function to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system. The functions of EirGrid as TSO and the Electricity Supply Board (as Transmission Asset Owner or TAO) are prescribed in legislation and in their respective licences. In terms of the relationship between EirGrid as TSO and ESB as TAO, ESB as asset owner maintains the transmission system and carries out construction work in accordance with EirGrid’s development plan. ESB has no function in respect of the development of transmission lines other than constructing same and the construction of the North-South 400kV Interconnector, which is the subject-matter of these proceedings will be undertaken by the ESB….
I say further that it is EirGrid’s intention to carry out the development the subject of these proceedings. EirGrid conceives, designs, [and] procures the construction of the infrastructure, and has the supervisory role provided for under the infrastructure agreement in respect of that construction. The construction itself shall be undertaken by the ESB….”.
33. This aspect of matters is subsequently taken up by Ms Aimee Treacy, a director and the company secretary of the first-named applicant, who avers, inter alia, that “Mr Fitzgerald states that the development shall be carried out by the ESB.” However, this, with respect, is a mis-casting of what Mr Fitzgerald in fact avers. He avers, and this is most certainly not a distinction without a difference that “The construction…shall be undertaken by the ESB”. But returning to Mr Fitzgerald’s affidavit evidence, he further avers as follows:
“[Ms] Treacy asserts that EirGrid has no legal interest in privately-owned lands and is incapable of acquiring any interest in same.
Whilst the issue of EirGrid’s interest and the lawfulness of the application for approval are more properly matters for legal submission. I am advised by EirGrid’s solicitor and so believe that the following points should be noted:
the application for approval in respect of the proposed development was made under section 182A of the 2000 Act, which does not require the applicant for approval to assert any interest in respect of the lands the subject-matter of the application;
the Electricity Supply Board [ESB] is the licensed Transmission Asset Owner [TAO] and owns the transmission system and is responsible for its construction in accordance with EirGrid’s development plan and is further responsible for the execution of maintenance;
EirGrid is solely responsible for making applications for planning approval or permission;
the application for approval was made by EirGrid, with the consent and approval of the Electricity Supply Board;
the application documentation…expressly stated that…EirGrid is the licensed TSO for Ireland and ‘has the exclusive function to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system’, and that ‘the proposed transmission infrastructure will be constructed by the Electricity Supply Boatd pursuant to statutory powers….
Accordingly, I am advised and so believe that EirGrid could and did lawfully make the application for approval….
[A]t the oral hearing, on March 23 2016, Aidan Geoghegan (EirGrid’s Project Manager for the North-South 400kV Interconnection Development) gave uncontroverted evidence explaining the respective functions of EirGrid and the ESB and the legal and contractual relationship between these entities, insofar as is relevant to this application. Mr Geoghegan explained what ESB does in relation to the works and precisely why it is EirGrid that carries out the development; EirGrid conceives the plan, designs the project, procures construction and has a supervisory role during that construction. ESB’s role is to build and fix the transmission system to specifications set by EirGrid. EirGrid specify what, where and how; ESB acts under direction from EirGrid”.
34. In a separate affidavit, Mr Fitzgerald further avers as follows in this regard:
“EirGrid’s principal role as TSO is to plan the development of and operate the transmission system, and to ensure its maintenance. Under article 8(1) of the Regulations of 2000, EirGrid has the exclusive function to operate and ensure maintenance of, and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system. EirGrid further has the obligation to prepare a development plan for the development of the transmission system in order to guarantee security of supply….
The functions of both EirGrid as TSO and ESB as TAP are prescribed in legislation and in their respective licenses. In terms of the relationship between EirGrid as TSO and ESB as TAO…ESB as asset owner maintains the transmission system and carries out construction work in accordance with EirGrid’s development plan. ESB has no function in respect of the development of transmission lines other than constructing same….
The relationship between EirGrid and ESB is managed via an ‘Infrastructure Agreement’ which was entered into between the parties on the 16th March 2006….This agreement can only be amended with the approval of the CER….
Section 7 of the Infrastructure Agreement deals with ‘Development and Construction Activities’ and the following provisions are of particular importance to the issue which the Applicants seek to raise in the proceedings:
(i) EirGrid has the sole and exclusive right to determine and identify which development projects will be undertaken and the timing requirements for the development of such projects (clause 7.3.1)
(ii) It is Eirgrid’s decision to proceed with any project (clause 7.4.2);
(iii) Design standards and designs are a matter for EirGrid (clause 7.5)
(iv) Where a project is to proceed, the ESB must give EirGrid a project implementation plan with all details of how the project will be implemented, method statements, etc. EirGrid is given the power to reject the draft Project Implementation Plan with any disagreement between ESB and EirGrid being determined through dispute resolution (clause 7.7.4);
(v) EirGrid appoints a client engineer – and that description is itself significant – who are agents of EirGrid and who have rights of inspection of all aspects of a project (clause 7.9.1);
(vi) The client engineer then, representing EirGrid, has the power to monitor progress and ensure that ESB carries out the project in accordance with the Project Agreement (para. 7.9.3)
(vii) EirGrid has an input into procurement through its members of the Procurement Strategy Committee (7.10)
(viii) EirGrid has an ongoing role of review and assessment over delivery of the project (clause 7.11)
(ix) EirGrid has, subject to clause 11 (Access to transmission assets), unrestricted access and rights of inspection with respect to all aspects of the execution and completion of construction works carried out on the Transmission System and to ensure that such construction works comply with the Project Agreement (clause 7.12.2);
(x) Commissioning of the Development is undertaken in accordance with EirGrid’s procedures and the certificate of acceptance issues from EirGrid (clause 7.13.9)…”.
(iv) The Infrastructure Agreement.
35. Following on from the foregoing, the court would but note in passing, clauses 7.13.9 and 21.1 of the Infrastructure Agreement, with clause 7.13.9 of that agreement providing that “When the Board considers that a Project or section has been substantially completed in accordance with the Project Agreement and a Certificate of Acceptance has been issued for that Project or section, the Board may apply to the TSO for a Certificate of Completion in respect of that Project or section, stating the date on which it considers the Project or section to be substantially complete”, and clause 21 giving EirGrid various step-in rights where it “considers that the Board is in delay or default of its construction or maintenance obligations” under the Infrastructure Agreement. In essence, on the transmission side, the ESB’s role is to be a contractor, building whatever is decided by EirGrid to the specification set by EirGrid.
(v) Some Conclusions.
36. In the preceding pages the court has described at some length the legal framework that governs, and the infrastructure agreement that exists between, EirGrid and ESB, and how that legislative and infrastructural schema operates in practice. Taking all of the foregoing together, the legal issue that presents when it comes to deciding eligibility to make an application under s.182A is not who is constructing the development, but who is carrying out the development? And looming through the preceding pages is the clearest of answers to this question: EirGrid is carrying out the development. It is the body which designs the development, as only legally it can do. It decides that the development is necessary. It identifies the route. It decides on voltage. It chooses the pylons. It determines their location. Yes, having done all of that, having obtained the necessary approvals, EirGrid then instructs and requires ESB to construct the infrastructure, though with a significant measure of control and oversight, including step-in rights. But with every respect to the applicants, they have never really elucidated how it is, as it must be if they are to be right in their contentions in this regard, that EirGrid is not the person that, to borrow from the wording of s.182A(1) “intends to carry out [the] development”. There is reference by the applicants, it is true, to the fact that ESB is doing the construction work; and some reliance is placed by them on the fact that it is ESB that has the power to obtain wayleaves under s.53 of the Act of 1927. But does the fact that ESB is doing the construction work change the fact that it is EirGrid which is the party that intends to carry out the development and procures the various steps that are required to achieve that end? The short answer, unfortunately for the applicants, is that it does not.
37. Some reference was made in this context, by counsel for EirGrid, to the decision of the High Court of England and Wales in Blaenau Gwent Borough Council v. Khan (1993) 35 Con LR 65. The case is perhaps something of a distraction in that the proposition for which counsel seeks to pray it in aid is not especially adventurous; indeed it might even be suggested to be fairly obvious – a suggestion from which counsel for EirGrid would himself perhaps be unlikely to demur. Thus Blaenau Gwent is an example of a case in which a building owner who hired a contractor was held, for the purposes of building regulations, to be the person who carried out building work for the purposes of particular enforcement provisions. It therefore offers support for the proposition, if support is required, that the notion of ‘carrying out development’ is, properly construed, a notion that is apt to cover the person who authorises and procures the relevant works, that person being EirGrid in the context of the within proceedings. How then can the applicants contend that EirGrid is not the person carrying out the works? Aside from the suggestion that one has to be the person actually doing the physical work of construction, a proposition which both everyday experience and the decision in Blaenau Gwent suggest to be (and is considered by the court, with respect to be) misconceived, great emphasis has been placed by the applicants on s.53 of the Act of 1927. Some emphasis was placed too, by counsel for the applicants, on the example offered by the East-West Interconnector, which the court now proceeds to consider.
(vi) The East-West Interconnector.
38. Perhaps the best way to introduce the issue of the East-West Interconnector is to flag certain aspects of the respective written submissions of the applicants and EirGrid. The East-West Interconnector is a 500 megawatt link between the electricity transmission grids of Ireland and Britain. It plays an important role in transferring power between Ireland and the the United Kingdom. At para. 119 of the applicants’ written submissions, the following appears:
“The actual practice carried out by EirGrid in relation to the previous East West Interconnector between…Britain and Ireland can be seen in the application for a special order which was made by EirGrid to the Commission for Energy Regulation (‘the CER’) in relation to private lands affected by that development….As can be seen from same, EirGrid therein stated that it (i.e. EirGrid and not the ESB) had engaged the contractor (ABB) to carry out the construction in question…and confirmed that it could not use a section 53 wayleave notice under the 1927 Electricity Supply Act since the road in question was a private road. In light of the foregoing, there is no reason to suspect that any different methodology would be used in the current development and that Mr Fitzgerald is incorrect in asserting that ESB would construct the interconnector and simply cannot state same as he has no basis for such assertion and no authority to state same on behalf of the ESB which is independent of EirGrid. It is submitted that the Applicant herein has [not] obtained any such special orders of the type sought in relation to the East-West Interconnector in relation to this scheme and such orders are not within its control.”
39. The court cannot but note in passing that in fact Mr. Fitzgerald, in his evidence before the court and, as it happens, before the Inspector, has stated in the clearest terms that, pursuant to the infrastructure agreement (to which EirGrid is a party and which it has the power to invoke) ESB will be doing the construction of the North-South Interconnector. But leaving that not insignificant detail to one side, it is worth reciting the following detail that appears at para. 84 of EirGrid’s written submissions:
“The submissions of the Applicants…refer to the purported practice of EirGrid in relation to the East West Interconnector between Britain and Ireland….[T]he issue of the use of wayleave notices in particular circumstances or special orders is entirely irrelevant to the validity of the Board’s decision which is the subject-matter of these proceedings. The East-West Interconnector has significant differences to the proposed North South Interconnector. For example, the East-West Interconnector is owned by EirGrid and not ESB and accordingly, is not part of the transmission system. Rather, EirGrid was authorised to construct the East-West Interconnector by the Commission for Energy Regulation [CER], pursuant to section 16 of the Electricity Regulation Act, 1999. The CER also consented, pursuant to section 49 of the Electricity Regulation Act 1999, to the exercise by EirGrid of the powers conferred on ESB by subsections (1) to (5) and (9) of section 53 of the Electricity (Supply) Act, 1927. Moreover, Special Orders were sought from the CER under section 45 of the Electricity (Supply) Act, 1927 as the development required the breaking up of a private road for the laying of cables under the road. As this was a private road, there was some doubt whether section 51 of [the] Electricity (Supply) Act, 1927 applied. In respect of the North-South Interconnector project, there is no breaking up of private roads to lay underground cables.”
40. Where does the truth lie when it comes to these competing submissions? To answer this, it is worth turning briefly to the Transmission System Operator Licence granted by the Commission for Energy Regulation to EirGrid in March, 2017 and, in the first instance, to the definitions of “North/South Circuits” and “Republic of Ireland Interconnector” therein, which definitions show that a distinction falls to be drawn between the North-South Circuit, which is part of the transmission system on the island of Ireland single electricity market and the Republic of Ireland Interconnector, which is a connector between this State and another jurisdiction:
“‘North/South Circuits’ means the electric lines and electrical plant and meters used for conveying electricity directly to or from a substation or converter station within the Republic of Ireland directly to or from a substation or converter station within Northern Ireland (and not for conveying electricity elsewhere);
…
“‘Republic of Ireland Interconnector’ means for the purpose of this Licence, equipment used to link the transmission system to electricity systems outside of the island of Ireland, and (for the avoidance of doubt) does not include the North/South Circuits”.
41. Moving on, the term “transmission system” is defined in the Transmission System Operator Licence as meaning:
“the system of electric lines comprising wholly or mainly the Board’s high voltage lines and electric plant and which is used for conveying electricity from a generating station to a substation, from one generating station to another, from one substation to another or to or from any Republic of Ireland Interconnector or to final customers (including such part of the North/South Circuits as is owned by the Board) (but shall not include any such lines which the Board may, with the approval of the Commission, specify as being part of the distribution system), and shall include any Republic of Ireland Interconnector owned by the Board”.
42. So as far as the East-West Interconnector is concerned, the ownership of this ‘Republic of Ireland Interconnector’, as that term is defined in the Transmission System Operator Licence, rests (as is recognised in the authorisation to construct that interconnector) in EirGrid. In the North-South Interconnector context, by contrast, what one is dealing with is a transmission system which will not be owned by EirGrid but rather by the ESB. And that is why, in essence, the two situations (North-South versus East-West) are not analogous and why, when it comes to the manner in which the two projects have been described, there has not been any sleight of words, let alone dishonesty, on the part of EirGrid or, so far as the court can see, any of the respondents in this regard. The two projects are, to use a metaphor, ‘chalk and cheese’.
(vii) Section 53 of the Act of 1927.
a. Overview.
43. The substance and thrust of s.53 of the Act of 1927 has already been touched upon in the court’s consideration of Gormley and need not be repeated here. Suffice it to note that, regrettably for the applicants, their reliance on s.53 is misplaced insofar as they see in that provision a means of advancing their argument that EirGrid does not intend to carry out the development. It is quite clear from the evidence before the court that as a matter of fact EirGrid does intend to carry out the development, it intends to require ESB to construct it in accordance with the infrastructure agreement, and ESB has the statutory power to acquire wayleaves – and the fact that it is ESB that has that power, and not EirGrid, does not in any way affect the question of whether EirGrid intends to carry out the North-South Interconnector development.
b. The decision in Killross.
44. The court turns to consider briefly the decision of the Court of Appeal in Electricity Supply Board v. Killross Properties Limited [2016] IECA 210. Though Killross represents precedent binding on this Court at this time, it is perhaps worth noting in passing that, at the time of writing, the Supreme Court has recently given liberty for an appeal to be brought against the decision of the court below. As a result the decision in that case, though fully binding in all respects on this Court, nonetheless occupies at this time that netherworld in which appealed judgments are generally perceived to dwell pending adjudication on appeal.
45. The respondents in Killross brought a wide ranging challenge to wayleave notices issued under s.53 by the ESB. One of these is described as follows in the judgment of Cregan J., under the heading “Improper Delegation of Power Pursuant to Section 53 – Delegatus Non Potest Delegare [‘One to whom power is delegated cannot himself further delegate that power’]”, at para. 38:
“The appellant also makes a number of arguments under this heading. These are as follows:
(i) That ESB, in effect, delegated its power and/or discretion to issue wayleave notices to EirGrid and/or ESB Networks Ltd to such an extent that it no longer has any ability to exercise a discretion as to whether to issue a wayleave notice or not;
(ii) That Mr Waldron [the man authorised by the Chief Executive of ESB to issue the wayleave notice] is, in effect, directed and controlled by ESB Networks Ltd and therefore he is not in a position to exercise his power to issue a wayleave notice for [and] on behalf of ESB;
(iii) That the delegation by the Board to the Chief executive and by the Chief Executive to Mr Waldron of the Board’s power to issue wayleave was ultra vires s.9 of the 1927 Act, was an unlawful delegation of power and was a breach of the principle delegatus non potest delegare.”
46. One slight point of confusion that can arise on reading the judgment, and that is worth noting before proceeding further with a consideration of the decision of the Court of Appeal, is that there is a division within ESB called ESB Networks and a legal entity, separate from ESB, known as ESB Networks Limited. In any event. Cregan J. observes as follows, at paras. 39-43, 46-50, 59 and 61-64:
“The regulatory structure of the electricity transmission system.
39. It appears that under the current regulatory structure in Ireland the following is the division of responsibility for the transmission of electricity:
ESB – Transmission Asset Owner (TAO)
Eirgrid Plc – Transmission System Operator (TSO)
ESB Networks Ltd – Transmission Asset Manager
40. The division in responsibility in relation to the distribution of electricity is as follows:-
ESB – Distribution Asset Owner (DAO)
ESB Networks Ltd – Distribution Systems Operator (DSO)
ESB Networks Ltd – Distribution System Manager.
41. Mr. Padraig Ó hIceadha in these proceedings swore an affidavit on behalf of ESB and Eirgrid to set out:
(1) who ESB is, who ESB Networks is, who ESB Network Ltd is, and who Eirgrid Plc is
(2) the relationship between these entities;
(3) who gave what direction in relation to the notice of 28th June 2013.
42. In the course of that affidavit Mr. Ó hIceadha explained that ESB owns the electricity transmission system, that the Commission for Energy Regulation (CER) has granted it the Transmission Asset Owner (TAO) licence and that ESB’s functions and duties as TAO include the carrying out of maintenance tasks on the transmission network in accordance with the specifications of the Transmissions System Operator (TSO), namely, Eirgrid. As a condition of its TAO licence ESB was required to designate an internal division of its business to carry out its TAO functions. Accordingly ESB designated a division of its business called ESB Networks for this purpose. (Indeed much of the confusion in relation to this issue is caused because there is an internal division of ESB called ‘ESB Networks’ and a separate company called ‘ESB Networks Ltd’.)
43. Mr. Ó hIceadha’s affidavit also sets out the fact that ESB Networks Ltd is the electricity distribution system operator (DSO) and that ESB Network Limited fulfils the same role in respect of the electricity distribution system as that which Eirgrid fulfils in respect of the transmission system. Article 15 of EU Directive 2003/54/EC requires that the DSO must be independent in terms of its legal form from other activities of ESB not relating to distribution. ESB remains the owner of the distribution system (the distribution asset owner) (DAO) but ESB Networks Ltd, as a wholly owned subsidiary, was established to discharge the DSO function. ESB Networks Ltd. is independent of ESB and is the holder of the DSO licence in its own right, not as the agent of ESB. Thus, decisions in respect of operating and ensuring the maintenance and development of the distribution systems are in the remit of the ESB Networks Ltd as DSO….
…
(1) The appellant’s first argument – that ESB delegated its power to issue wayleaves to Eirgrid and ESB Networks Ltd and that ESB does not exercise any discretion in relation to service of notices.
46. The appellant submits that ESB has essentially delegated its statutory functions to issue wayleave notices under the Act to Eirgrid, that Eirgrid directed the operation of the particular project in this case, that Eirgrid then appointed ESB Networks International to carry out this project, that Mr. Waldron is under the control and direction of ESB Networks Ltd and that therefore Mr. Waldron in signing the wayleave notice is in effect ‘cut adrift’ from the Board and the Board can exercise no supervisory powers over him. As a result therefore it submits that the wayleave notice was invalid.
47. In order to assess this submission it is necessary to consider each link in the chain of this argument.
48. Firstly, the appellant says that the ESB delegated its power to create wayleave notices to Eirgrid. It makes this argument based on clause 7.6.2 of an Infrastructure Agreement dated 14th March 2006 between the ESB and Eirgrid. Clause 7.6.2 provides as follows:
‘The Board, irrevocably for as long as this agreement exists, hereby appoints the TSO [Eirgrid] as its agent to
(a) ……
(b) make and process all applications for the acquisition of wayleaves and rights of entry on behalf of the Board and
(c) exercise all rights of entry on lands vested in the Board pursuant to regulation 29 of the statutory instrument or any other relevant statutory provision.
Insofar as these rights may be required for the development of the transmission system.’
49. The appellant seeks to argue that under this contractual agreement the ESB has in effect delegated its power to serve all wayleave notices to Eirgrid.
50. However Clause 7.6.4 of the agreement provides as follows:
‘Following receipt of relevant landowner details from the TSO under clause 7.6.2 the Board will issue wayleave notices, survey notices, borehole notices and similar instruments in accordance with the terms and arrangements agreed between the TSO and the relevant landowner and make all necessary payment arising under those terms.’
…
59. I am satisfied, therefore, that the submissions of the appellant in this regard are, in effect, mischaracterising or misinterpreting the legal reality of what was going on between ESB, Eirgrid, ESB Networks Business Unit and ESB Networks Limited. Given the degree of overlap between names, functions and agreements it is hardly any surprise that there should be such a miasma of confusion over the roles, functions and legal responsibilities of the various parties involved. However I am satisfied that there is a clear legal distinction between ESB and ESB Networks Limited and that there is a clear distinction between the ESB Networks Business Unit (as a division within ESB) and ESB Networks Limited. It is also clear that ESB and ESB Networks Limited carry out different functions under the regulatory structure now in place in Ireland. It is clear that ESB and ESB Networks Limited have entered into various agreements required by the regulatory structure and it is also clear that ESB and ESB Networks Limited have entered into an Asset Management Agreement whereby ESB Networks Limited manage the ESB Networks Business Unit of ESB for and on behalf of ESB. However, this does not change the fundamental legal fact that nowhere in any of the arrangements or agreements between ESB and ESB Networks Limited can it be said that ESB has delegated the power of issuing wayleave notices to ESB Networks Limited. Indeed, it is clear that the Board of ESB has specifically retained the power to issue wayleave notices not only in its infrastructure agreement with Eirgrid but also in its agreement with ESB Networks Limited.
…
61. The appellant also submits in the alternative, that even if neither EirGrid nor ESB Networks Ltd have the power to acquire wayleaves under s. 53, that ‘this dilemma has been addressed and practiced by a very troubling three card trick: where EirGrid decide, as in the present case, to develop or ‘operate’ an electricity line and to acquire a wayleave for that purpose, it directs ESB Networks Ltd to effect the acquisition by serving a notice describing itself as ESB Networks so that it can argue that wearing its wayleave acquisition hat it is actually part of the ESB. This is despite the fact that all works are actually carried out by ESB Networks Ltd at the direction of EirGrid’.
62. However, in my view, the description of this issue as a ‘three card trick’ is not correct. First, it is not correct to say that where EirGrid decide to ‘acquire a wayleave” it directs ESB Networks to effect the acquisition…’ because EirGrid has no legal power to ‘acquire’ a wayleave for that purpose; secondly, EirGrid cannot direct ESB Networks Ltd to effect the acquisition by serving a notice describing itself as ESB Networks as it does not have the legal authority to issue a wayleave notice in the first place and therefore it could not direct any other party to serve a wayleave notice; thirdly the notice describing itself as ESB Networks is in fact a reflection that ESB Networks is an internal business unit of ESB which has retained the power to issue wayleave notices.
63. One of the errors which pervades the appellant’s submissions in this regard appears to be its unwillingness to accept the distinction between the role of ESB Networks Ltd as the separate contractual entity carrying out certain functions under the new regulatory structure and the entirely separate and distinct role of ESB Networks Ltd in managing the ESB Networks Business Unit of the ESB. The appellant has conflated both of these roles and sought to argue that ESB has delegated its power to issue wayleave notices to ESB Networks Ltd when there is simply no evidence that this is so and indeed all the contractual documents appear to point in the opposite direction.
64. In summary, therefore, the argument that ESB has delegated its statutory power to issue wayleave notices to EirGrid and/or ESB Networks Ltd is wrong as a matter of law and is misconceived. The appellant’s argument that EirGrid has a right to issue wayleave notices and, in effect, is directing ESB Networks Ltd to issue wayleave notices is also incorrect as a matter of law.”
47. That then is the up-to-date legal position on the points addressed in the above-quoted extracts from the judgment of Cregan J. in the Court of Appeal, and is noted by the court.
(viii) Some Further Conclusions.
48. The court began this section of its judgment by posing the question whether EirGrid is entitled to make an application for approval for the North-South Interconnector under s.182A of the Act of 2000. In this regard, the following conclusions, it seems to the court, may reasonably be stated by reference to the foregoing analysis:
(1) the applicable legislation entitles EirGrid to apply if it intends to carry on a development (which it does). Legislation does not require that EirGrid intend to do the construction work. Given that EirGrid is the person designing and for whom the work is being done, it clearly intends in every sense to carry out the development.
(2) the applicable legislation must be construed in the light of the statutory function of the transmission system operator (EirGrid). It is the person in charge of the development. It would make no sense that the legislation would deprive the body with the statutory function of development of the legal power to develop.
(3) the position in relation to the East-West Interconnector is completely different from that arising in respect of the North-South Interconnector. The East-West Interconnector was not concerned with a development that formed part of the transmission network and s.53 and the other powers of the ESB do not affect any of that. ESB is entitled to exercise those powers and its entitlement to do so does not affect, one way or another, the inquiry as to who intends to carry out the development.
VI. Designation, Bias, and Validity of Decision
(i) Overview.
49. Three more issues arise now to be addressed and their inter-relationship is such that they are perhaps best addressed under a single heading, viz. (1) is it correct to say that legislation is required to vest in An Bord Pleanála the function of competent authority under the PCI Regulation? (2) does the vesting of such a dual function in An Bord Pleanála present an appearance of bias such as gives rise to an entitlement to legal relief on the part of the applicants? and (3) if there is a legal infirmity attendant upon the designation of An Bord Pleanála, does that affect the validity of the decision granting approval under s.182B of the Act of 2000?
50. When it comes to the just-mentioned issues, the court is dealing with what might be described as the State dimension of the within application. Insofar as that dimension of the proceedings is concerned, the claims made by the applicants are directed to no little extent at the designation of An Bord Pleanála as competent authority. So, for example, the applicants allege that:
(1) that designation should have been done by way of legislation, whether primary or secondary. In support of this contention, the applicants make the point that An Bord Pleanála is a creature of statute and thus can only act ‘within the four corners’ of statute. In support of this contention, reference was made by the applicants to: (a) the Planning and Development (Amendment) Act 2006, and the conferral of powers thereby in relation to railway orders and road schemes (with a contrast being drawn between the situation in the case at hand where there is no domestic legislation conferring additional powers on the Board in relation to its role as a competent authority); and (b) the decisions in Dellway Investments Ltd v. NAMA [2011] 4 I.R. 1 and Murphy v. Cobh Town Council [2006] IEHC 324. But underplayed in the applicants’ contentions, or so it seemed to the court, is the fact that the impugned designation of An Bord Pleanála has been done pursuant to European Union regulation, a fact that, as will be seen hereafter, carries with it certain legal consequences so far as the contentions made by the plaintiffs are concerned.
(2) there is a conflict of interest between the one entity, An Bord Pleanála, acting as competent authority and development consent authority. But what was, with respect, notably missing from the applicants’ submissions, was any explanation as to how that alleged conflict arises: they have not pointed to anything that is required to be done by the competent authority which impinges on the role of An Bord Pleanála as a consent authority. Moreover, the role of An Bord Pleanála becomes clearer when one has regard not just to the monochrome of what it is doing in the within proceedings but the full colour of what it might be called upon to do in other proceedings. In essence, the role of An Bord Pleanála as competent authority is what might be styled a ‘case management’ role. There is not a lot of case management to be done when, as here, there is only one development consent required. However, matters would be different and the case management role of An Bord Pleanála more apparent in a case where there was a number of consent authorities involved, as, for example, would be the case in a gas project where a battery of bodies have a role to play. In that latter context, An Bord Pleanála would play the role of ‘clock-watcher’ and would seek to ensure that applicable timelines were observed by all. When it comes to its interpretation of legislation, the court must ever be careful not to be blinkered by the monochromatic version of events represented in a single set of proceedings, but instead to keep its eyes open to the full colour of what particular legislation seeks generally to achieve, so that the court’s interpretation of that legislation holds good both in the general and in the particular. Just as a person may do wrong but be good, so legislation may appear wrong yet hold good.
(3) the vesting of a dual function in An Bord Pleanála presents an appearance of bias such as gives rise to an entitlement to legal relief on the part of the applicants, an allegation which, it seems to the court, is roundly met by the decision of the High Court in Callaghan v. An Bord Pleanála [2015] IEHC 357, considered later below.
(ii) The Question of Designation.
a. The PCI Regulation.
51. As mentioned previously, the decision challenged in these proceedings is a decision made by An Bord Pleanála, on 19th December last, to grant approval under s.182B of the Act of 2000 for the proposed construction and development of the North-South Interconnector. The relevant application for approval was made by EirGrid on or about 9th June, 2015. The proposed development was classified as a strategic infrastructure development (or ‘SID’). (Under s.2 of the Act of 2000, the definition of SID includes “any proposed development referred to in s.182A(1)”). In granting approval for the project under s.182B of the Act of 2000, An Bord Pleanála was carrying out its role as the decision-making body in applications for strategic infrastructure consents under Irish planning law. However, An Bord Pleanála also carried out a related role, namely that of national “competent authority” under the PCI Regulation, a European Union law measure, and it is to certain aspects of European Union law that the court now turns.
b. The European Union Law Dimension.
52. Article 288(2) of the Treaty on the Functioning of the European Union (‘TFEU’) provides that “[A] regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States”. In O’Neill, A., EU Law for UK Lawyers (2011), a work which is useful also to non-UK lawyers, the learned author observes, at 36, that “The ‘direct applicability’ of EU regulations means that no national legislation is required to implement the regulations in order to give them legal effect in the domestic legal systems of Member States. Regulations bind the Member States and have the force of law within the national territories without the intervention of national parliaments”. In a similar vein, Craig, P. and G. de Búrca observe, in EU Law and Materials (5th ed., 2011), at 190, that “[R]egulations will immediately become part of the domestic law of Member States, without needing transposition”.
53. It is well established by the Court of Justice of the European Union (‘CJEU’) that, when it comes to European Union regulations, member states are not required to adopt implementing domestic legislation, not least because such domestic measures might contain changes which affect the uniform application of the relevant regulation. In Case C-39/72 Commission v. Italy (1973), the European Court of Justice observes as follows, para. 17:
“Regulations are, as such, directly applicable in all Member States and come into force solely by virtue of their publication in the Official Journal of the Communities, as from the date specified in them, or in the absence thereof, as from the date provided in the Treaty.
Consequently all methods of implementation are contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Community Regulations and of jeopardizing their simultaneous and uniform application in the whole of the Community.”
54. It is clear, therefore, that the CJEU wishes to guard against the fragmentary impact of unnecessary implementing measures. The various member states are also, of course, bound by the duty of sincere cooperation that presents under Art. 4(3) of the Treaty on European Union whereby:
“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”
55. In Case C-34/73, Variola v. Amministrazione Italiana delle Finanze (1973), a preliminary ruling was sought of the European court of Justice as to whether a regulation could be implemented by domestic measures which effectively reproduce the provisions of the regulation. In its judgment, the European Court of Justice explained as follows, at paras. 10-11:
“10. The direct application of a Regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law.
By virtue of the obligations arising from the Treaty and assumed on ratification, Member States are under a duty not to obstruct the direct applicability inherent in Regulations and other rules of Community law.
Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Community Regulations throughout the Community.
11. More particularly, Member States are under an obligation to introduce any measure which might affect the jurisdiction of the Court to pronounce on any question involving the interpretation of Community law or the validity of an act of the institutions of the Community, which means that no procedure is permissible whereby the Community nature of a legal rule is concealed from those subject to it.”
56. The decision in Variola, cited with approval in numerous subsequent judgments of the CJEU, is clear authority that the provisions of a European Union regulation should not be replicated in a national measure, particularly if the effect would be to obscure from citizens the fact that it is the regulation which is the direct source of obligations. One such later judgment is the judgment of the CJEU in Joined Cases C-539/10P and C-550/10P Stichtung Al-Aqsa v. Council of the European Union (2012), in which the CJEU considered whether a freezing of funds imposed by national provisions against a person who is also subject to a freezing of funds imposed by a European Union regulation may affect the scope of a regulation. Per the CJEU, at para. 87:
“Member States are under a duty not to obstruct the direct applicability inherent in regulations, given that the scrupulous observation of this duty is an indispensable requisite for the simultaneous and uniform application of European Union regulations throughout the Union (see, to that effect, Case 34/73 Variola [1973] ECR 981, paragraph 10; Case 94/77 Zerbone [1978] ECR 99, paragraphs 24 and 25; and Case 272/83 Commission v Italy [1985] ECR 1057, paragraph 26). In particular, Member States must not adopt a measure by which the Community nature of a legal rule and the consequences which arise from it are concealed from the persons concerned (see Variola, paragraph 11; Zerbone, paragraph 26; Case C 113/02 Commission v Netherlands [2004] ECR I 9707, paragraph 16; and Case C 316/10 Danske Svineproducenter [2011] ECR I 13721, paragraph 41).”
57. Closer to home, in Maher v. Minister for Agriculture and Food [2001] 2 IR 139 what was in issue was a rule that had been introduced in relation to milk quotas by a statutory instrument that was implementing Community regulations, which statutory instrument was contended unsuccessfully by the applicants (both at first instance and on appeal) to violate the Constitution in that it did not come within the “necessitated” text of Art. 29, yielding the resut that the respondent minister had effectively been legislating contrary to Art. 15 of the Constitution. Keane C.J., at 181, observed that there were two routes by which to approach adjudication on these contentions:
“One can initially decide whether the making of the regulation in the form of a statutory instrument rather than an Act of the Oireachtas was ‘necessitated’ by the obligations of membership. If it was, then it is clearly unnecessary to consider whether it is in conflict with Article 15.2 or, for that matter the Articles guaranteeing the private property rights of the applicants. Alternatively, one can determine first whether it violates either Article 15.1 or the private property rights or both of them. If the latter course were adopted, and the conclusion were reached that no breach of the Constitution had been established, it would be unnecessary to consider whether enactment in the form of a regulation rather than by an Act was necessitated by the obligations of membership.”
58. The Supreme Court as a whole preferred the second approach. Fennelly J. was of the view, at 254-5, that “[T]he essential question is whether the first respondent was in breach of Article 15.2.1 of the Constitution. If he was, the Regulations of 2000 will be invalid, since unlike those involved in Meagher [v. Minister for Agriculture [1994] 1 I.R. 329]…they are not ‘necessitated’.” (The Chief Justice had already made a finding on this last point in his preceding judgment). Fennelly J., at 260, identified the test applicable to be “whether the scope of the discretion conferred by Community law in regulations which become part of national law was so independent of principles and policies laid down by those Community regulations, as to place the State in conflict with Article 15.2.1 of the Constitution.” This, of course, is akin to the test identified by O’Higgins C.J. in Cityview Press v. An Chomhairle Oiliúna [1980] 1 I.R. 381, 399, save that Maher involves the substitution of the European law measure for the parent statute referred to in Cityview, and a possible stretching of the Cityview language so as to require not only independence but a large degree of independence (“so independent”) before implementing legislation would be held to be in breach of Art. 15.2.1̊. The implications of Maher in the context of the within application are touched upon further hereafter.
(iii) Some Particular Aspects of the Case at Hand.
59. Perhaps nine points might usefully be made at this juncture.
60. (1) In Maher the Supreme Court was concerned with the principles and policies test under Article 15 of the Constitution. What the court ultimately decided was that the principles and policies presenting could legitimately be found in the relevant European legislation and hence there was no breach of Article 15. In effect, the Supreme Court treated the European legislation as they would a piece of primary legislation for the purpose of the Cityview test, though subject to the differences that have been touched upon previously above. So far as independence from the principles and policies of the PCI Regulation is contended, if it is contended, to present in what the State has done as regards designation of An Bord Pleanála as a national “competent authority” under Regulation (EU) No. 347/2013, the court sees none.
61. (2) Here the second-named respondent contends, and the court accepts, that if one were to regard the PCI Regulation as if it were equivalent to a domestic piece of legislation and then to ask ‘what would happen if a piece of primary legislation allowed the designation of a competent authority?’ it becomes clear that, absent some requirement to the contrary in the primary legislation, no further legislation would be required. To put a practical gloss on the foregoing, it is often the case that legislation will empower a minister or some other body to designate a person as say, a competent authority or an authorised officer (such authorised officers often enjoying quite extensive powers). That power to designate/authorise derives directly from the parent legislation, and clearly a ministerial edict will issue whereby the designation/authorisation is effected. That is all that presents here, save that the legislation in question is a European Union regulation, i.e. the PCI Regulation.
62. (3) The court notes the following observations of Denham J. in her judgment in Maher, at 206-7, under the heading “European Regulations”:
“Community regulations are binding on member states and are directly applicable within member states. They are of general application. They are norms created by the Community. They are used extensively in relation to agriculture. As they are directly applicable they are part of national domestic law automatically: see Variola SPA v. Amministrazione Italiana delle Finanze (Case 34/73) [1973] E.C.R. 981 at p. 990….Regulations, being part of domestic law of the State, may be treated as instruments setting out policies and principles for subordinate legislation. If the principles and policies are set out in the Community Regulations then there may be no role for the national parliament to determine principles and policies. If the principles and policies are established in law in the State, albeit in Community regulations rather than domestic legislation, then it is open to the first respondent to make the required and technically detailed statutory instruments.”
63. In the above-quoted text one sees Denham J., in dealing with an Article 15 argument, viewing a European Union regulation as akin to a piece of national legislation. That analogy also holds good in the within case – and in circumstances where the PCI Regulation did not in fact require detailed implementing measures because it is itself prescriptive, nothing further, it seems to the court, was required other than the designation by way of administrative act.
64. (4) The court notes too the following observations of Fennelly J. in his judgment in Maher, at 249:
“Community regulations are directly applicable, in that their entry into force and their application are “independent of any measure adopting [them] into national law.” ( Zerbone v. Amministrazione delle Finanze dello Stato (Case 94/77) [1978] E.C.R. 99, para. 23.) As Denham J. explains in different words, they do not require any national act of implementation for their binding effect. Indeed, where they are, in their own terms, capable of being directly applied, it has been said that:- “Member States must not adopt or allow national institutions with a legislative power to adopt a measure by which the Community nature of a legal rule and the consequences which arise from it are concealed.”
…Where, however, as frequently happens, especially in the case of a common organisation of the market, regulations, in addition to being directly applicable, allow member states discretion in their implementation, some national act of implementation or transposition will be required.”
65. Simply put, what flows from the foregoing is that it is a question of fact and degree in respect of any individual European Union regulation, as to whether or not implementing measures are required. Here, in circumstances where the PCI Regulation did not in fact require detailed implementing measures because it is itself prescriptive, nothing further, it seems to the court, was required other than the designation by way of administrative act.
66. (5) Turning to the text of the PCI Regulation, one can see the very limited effect of the impugned designation process. So, for example, Article 7(1), (2) and (8) of the PCI Regulation provide as follows, under the heading “‘Priority status’ of projects of common interest”:
“1. The adoption of the Union list shall establish, for the purposes of any decisions issued in the permit granting process, the necessity of these projects from an energy policy perspective, without prejudice to the exact location, routing or technology of the project.[1]
[[1] Under Article 3 of the PCI Regulation, inter alia, the European Commission is empowered to adopt delegated acts in accordance with Art.16 of the Regulation that establish a Union list of projects of common interest, the characteristics of which projects include that the project is of a particular significance in the energy realm and involves at least two member states by directly crossing the border of two or more member states.]
2. For the purpose of ensuring efficient administrative processing of the application files related to projects of common interest, project promoters and all authorities concerned shall ensure that the most rapid treatment legally possible is given to these files.
…
8. With regard to the environmental impacts addressed in Article 6(4) of [the Habitats] Directive 92/43/EEC and Article 4(7) of Directive 2000/60/EC, projects of common interest shall be considered as being of public interest from an energy policy perspective, and may be considered as being of overriding public interest, provided that all the conditions set out in these Directives are fulfilled.
Should the opinion of the Commission be required in accordance with Directive 92/43/EEC, the Commission and the competent authority referred to in Article 9 of this Regulation shall ensure that the decision with regard to the overriding public interest of a project is taken within the time limit pursuant to Article 10(1) of this Regulation.”
67. It is clear from Art. 7(1) that the effect of designation is relatively limited: it simply establishes “the necessity of…projects from an energy policy perspective, without prejudice to the exact location, routing or technology of the project” So all of those ‘without prejudice’ issues are, to use a colloquialism, ‘up for grabs’, i.e. they are not predetermined in any way by, inter alia, the fact that that An Bord Pleanála is acting as a competent authority.
68. As to Art. 7(2), perhaps two aspects of that provision might usefully be noted. First, the desired-for rapidity is subject to what is legally possible. So this is not a regulation that ‘rides roughshod’ over the ordinary processing of these applications: it merely requires that applications are to be given some level of swiftness of despatch. Second, Art.7(2) requires that “all authorities concerned shall ensure…the most rapid treatment legally possible”. And that is important, because it applies not only to the competent authority as designated, it applies to other consent authorities – and while there are none other in this case, in other cases, such as for example in a gas infrastructure development, there would be a clutch of them.
69. As to Art. 7(8), Article 6(4) of the Habitats Directive only comes into play after a screening assessment (and, if required, an appropriate assessment) has been undertaken pursuant to Article 6(3) of the Habitats Directive. So all has to be done in the ordinary way: the consent authority must carry out its functions in the ordinary way; An Bord Pleanála must carry out its Habitats Directive assessment; and nought in this regard is affected by the provisions of the PCI Regulation. The PCI Regulation in this regard only comes into play if the consent authority decides that a project does adversely affect the integrity of the site. But on the facts of this case, An Bord Pleanála decided that there was no adverse effect on the integrity of the site.
70. (6) Continuing with its consideration of the PCI Regulation, the court turns next to Art. 8 of same, in particular Art. 8(1) and (3), which provide as follows under the heading “Organisation of the permit granting process”:
“1. By 16 November 2013, each Member State shall designate one national competent authority which shall be responsible for facilitating and coordinating the permit granting process for projects of common interest.
…
3. Without prejudice to relevant requirements under international and Union law, the competent authority shall take actions to facilitate the issuing of the comprehensive decision. The comprehensive decision shall be issued within the time limit referred to in Article 10(1) and (2) and according to one of the following schemes:
(a) integrated scheme: the comprehensive decision shall be issued by the competent authority and shall be the sole legally binding decision resulting from the statutory permit granting procedure. Where other authorities are concerned by the project, they may, in accordance with national law, give their opinion as input to the procedure, which shall be taken into account by the competent authority;
(b) coordinated scheme: the comprehensive decision comprises multiple individual legally binding decisions issued by several authorities concerned, which shall be coordinated by the competent authority. The competent authority may establish a working group where all concerned authorities are represented in order to draw up a permit granting schedule in accordance with Article 10(4)(b), and to monitor and coordinate its implementation. The competent authority shall, in consultation with the other authorities concerned, where applicable in accordance with national law, and without prejudice to time limits set in accordance with Article 10, establish on a case-by-case basis a reasonable time limit within which the individual decisions shall be issued. The competent authority may take an individual decision on behalf of another national authority concerned, if the decision by that authority is not delivered within the time limit and if the delay cannot be adequately justified; or, where provided under national law, and to the extent that this is compatible with Union law, the competent authority may consider that another national authority concerned has either given its approval or refusal for the project if the decision by that authority is not delivered within the time limit. Where provided under national law, the competent authority may disregard an individual decision of another national authority concerned if it considers that the decision is not sufficiently substantiated with regard to the underlying evidence presented by the national authority concerned; when doing so, the competent authority shall ensure that the relevant requirements under international and Union law are respected and shall duly justify its decision;
(c) collaborative scheme: the comprehensive decision shall be coordinated by the competent authority. The competent authority shall, in consultation with the other authorities concerned, where applicable in accordance with national law, and without prejudice to time limits set in accordance with Article 10, establish on a case-by-case basis a reasonable time limit within which the individual decisions shall be issued. It shall monitor compliance with the time limits by the authorities concerned.
If an individual decision by an authority concerned is not expected to be delivered within the time limit, that authority shall inform the competent authority without delay and include a justification for the delay. Subsequently, the competent authority shall reset the time limit within which that individual decision shall be issued, whilst still complying with the overall time limits set in accordance with Article 10.
Acknowledging the national specificities in planning and permit granting processes, Member States may choose among the three schemes referred to in points (a), (b) and (c) of the first subparagraph to facilitate and coordinate their procedures and shall opt to implement the most effective scheme. Where a Member State chooses the collaborative scheme, it shall inform the Commission of its reasons therefor. The Commission shall undertake an evaluation of the effectiveness of the schemes in the report referred to in Article 17.”
71. Perhaps three observations flow from the above-quoted text:
(i) Art. 8(1) is clearly directly applicable: it is the provision that allows and allowed the designation of An Bord Pleanála without any further legislative measure being required. It is akin to an Act of the Oireachtas for this purpose, and it is open for the competent authority to be designated: nothing further is required other than an administrative step.
(ii) of the three schemes identified in Art. 8(3), viz. the integrated scheme, the coordinated scheme and the collaborative scheme, the integrated and coordinated schemes are far more invasive. Under the collaborative scheme there is a much less invasive role for the competent authority; it effectively cajoles the other consent authorities to meet time limits and, if necessary, re-sets those time limits.
(iii) by virtue of the final (“Acknowledging…Article 17”) sub-paragraph, if a member state elects to go for the collaborative scheme, a rationale for that election must be provided to the European Commission. Notably, in the letter of designation of 4th December 2013 (considered later below) the explanation given as to why Ireland has chosen the collaborative scheme is the, frankly laudable, desire to preserve the independence other consent authorities. In other words, Ireland has deliberately chosen the system which best ensures independence and that each of the individual consent authorities gets to have its say in relation to the matter. And that matters should be so reinforces the point that the competent authority’s role is very limited in the Irish context, being essentially a co-ordinating role.
72. (7) Turning next to Arts. 9 and 10 of the PCI Regulation (and it makes sense to consider them in reverse), Art.10 introduces a two-stage permit-granting process which operates subject to particular time limits, providing, inter alia, as follows, under the heading “Duration and implementation of the permit granting process”:
“1. The permit granting process shall consist of two procedures:
(a) The pre-application procedure, covering the period between the start of the permit granting process and the acceptance of the submitted application file by the competent authority, shall take place within an indicative period of two years.
This procedure shall include the preparation of any environmental reports to be prepared by the project promoters.
For the purpose of establishing the start of the permit granting process, the project promoters shall notify the project to the competent authority of the Member States concerned in written form, and shall include a reasonably detailed outline of the project. No later than three months following the receipt of the notification, the competent authority shall, including on behalf of other authorities concerned, acknowledge or, if it considers the project as not mature enough to enter the permit granting process, reject the notification in written form. In the event of a rejection, the competent authority shall justify its decision, including on behalf of other authorities concerned. The date of signature of the acknowledgement of the notification by the competent authority shall serve as the start of the permit granting process. Where two or more Member States are concerned, the date of the acceptance of the last notification by the competent authority concerned shall serve as the date of the start of the permit granting process.
(b) The statutory permit granting procedure, covering the period from the date of acceptance of the submitted application file until the comprehensive decision is taken, shall not exceed one year and six months. Member States may set an earlier date for the time-limit, if considered appropriate.”
73. What is perhaps most significant about Art. 10, at least in the context of the within application, is that Art.10(1)(b) preserves existing statutory permit-granting procedures in the member states, being in this case the classic SID procedure. What is new is the pre-application procedure. What is comprised in that pre-application procedure is set out in Art. 9 which makes due obeisance to the demos, containing lengthy provision as regards public consultation/participation and general transparency of process – and there is not, and could be on the facts of this case, any complaint that An Bord Pleanála did not ensure public participation. There is, however, a not unrelated contention that An Bord Pleanála, as competent authority, is required to promote the North-South Interconnector Project and that this in some way has given rise to bias on the part of the An Bord Pleanála. But a close consideration of Art. 9 shows this contention, with respect, to be both unfounded and wrong. Thus Article 9(4) provides as follows:
“At least one public consultation shall be carried out by the project promoter, or, where required by national law, by the competent authority, before submission of the final and complete application file to the competent authority pursuant to Article 10(1)(a). This shall be without prejudice to any public consultation to be carried out after submission of the request for development consent according to Article 6(2) of Directive 2011/92/EU. The public consultation shall inform stakeholders referred to in Annex VI.3(a) about the project at an early stage and shall help to identify the most suitable location or trajectory and the relevant issues to be addressed in the application file. The minimum requirements applicable to this public consultation are specified in Annex VI.5. The project promoter shall prepare a report summarising the results of activities related to the participation of the public prior to the submission of the application file, including those activities that took place before the start of the permit granting process. The project promoter shall submit that report together with the application file to the competent authority. Due account shall be taken of these results in the comprehensive decision.”
74. Shortly put, Art.9(4) requires public consultation to be carried out by the promoter or competent authority before the submission of the application file. Thereafter, the project promoter must prepare a report summarising the results of activities related to the participation of the public prior to the submission of the application file, including those activities that took place before the start of the permit-granting process. This report must then be submitted together with the application file to the competent authority, with due account to be taken of the said results in the comprehensive decision. If one turns then to Annex VI, as referenced in the above-quoted text, one finds at para. 3(a), under the general heading “Guidelines for Transparency and Public Participation” the following provision:
“(3) To increase public participation in the permit granting process and ensure in advance information and dialogue with the public, the following principles shall be applied:
(a) The stakeholders affected by a project of common interest, including relevant national, regional and local authorities, landowners and citizens living in the vicinity of the project, the general public and their associations, organisations or groups, shall be extensively informed and consulted at an early stage, when potential concerns by the public can still be taken into account and in an open and transparent manner. Where relevant, the competent authority shall actively support the activities undertaken by the project promoter.”
75. Any suggestion, and there is suggestion, in the applicants’ submissions that the word “activities” in the last line of the above-quoted text must be read as requiring a competent authority actively to support a project is, with respect, incorrect: the activities being referred to there are the activities referenced in Article 9(4) and they are the public participation activities. So through Art. 9(4) and Annex VI, para. 3(a) a competent authority is being required ‘merely’ to make sure that public participation is effective, e.g., by making documents available on its website. In no sense is a competent authority being required to promote or support a project.
76. (8) Turning next to the letter of designation of 4th December, 2013, that issued to An Bord Pleanála from the Assistant Secretary General of what was then the Department of Communications, Energy and Natural Resources and is now the Department of Communications, Climate Action and the Environment, the substantive portion of which reads as follows under the heading “Designation of Competent Authority under EU Regulation 347/2013 on Guidelines for trans-European Energy Infrastructure”:
“I am writing to you in the context of the above-mentioned Regulation, concerning guidelines for the assessment, approval and permitting of cross-border energy infrastructure projects. As you may be aware, one of its requirements is the designation by Member States of a Competent Authority to oversee the permit granting process for these projects, known as projects of common interest (PCIs). Specifically, Article 8.1 of the Regulation provides that each Member State should designate a Competent Authority to facilitate and co-ordinate the permit granting process for PCIs. The purpose of this letter is to inform you that, following discussions with the Department of Environment, Community and Local Government, An Bord Pleanála is hereby designated as Competent Authority for the purposes of the Regulation. I am aware from discussions with officials from that Department that the Board is prepared to undertake the role.
You may also be aware of the other provisions in Article 8 of the Regulation which provide for a number of options that a Member State can take in relation to the decision-making process as regards the issuing of consents. Included in these options is the ‘collaborative scheme’….Under this option, the Competent Authority would co-ordinate decisions in respect of the relevant consents, which would be left to the existing bodies or bodies with the requisite technical expertise. Both Departments and the Board kept in close contact during the negotiations with the advice and insights from officials of the Department of Environment, Community and Local Government and from the Board being very helpful in that process. During those discussions the strong view emerged that such an approach is the most workable for Ireland in terms of maintaining the effectiveness of the existing domestic legislation; both Departments agreed that the ‘collaborative scheme’ would prove the most workable for Ireland in that it allowed the State to retain the existing balance it has between the different permitting authorities, while respecting the statutory independence they each have. It is on that basis that this Department is designating An Bord Pleanála as Competent Authority.
With the enactment of the Planning and Development (Strategic Infrastructure) Act 2006 (SIA Act), it is clear that many of the requirements for streamlined planning and permitting processes under the Regulation are already in place. However, it would be useful to hold a meeting of officials from this Department, from the Department of Environment, Community and Local Government and from An Bord Pleanála to discuss any additional legislative or administrative arrangements that need to be put in place….
The PCI projects relevant to Ireland that are now agreed at European level have the potential to make a very significant contribution to Ireland’s energy infrastructure, security of supply and competitiveness; I very much welcome An Bord Pleanála’s designation as Competent Authority, given your experience, trustworthiness and effectiveness when interfacing with all stakeholders. I can assure you of the full support and co-operation of this Department and the Commission for Energy Regulation to ensure the successful operation of the PCI process in Ireland.
Yours sincerely…
cc. [Name]…Department of Environment, Community and Local Government
[Name], European Commission
[Name], Commission for Energy Regulation”.
77. There are a number of points to note about this letter:
(i) in designating An Bord Pleanála the letter complies fully with Art. 8(1) of the PCI Regulation.
(ii) the letter is copied to the European Commission, thereby discharging the obligation under Art. 8 of the PCI Regulation for a member state to give reasons if it opts for the collaborative scheme.
(iii) the reasons aforesaid, as mentioned previously, are precisely related to ensuring the independence of the decision-making authorities.
(iv) it will be recalled that under Art. 8(1) designation of a national competent authority was required to be done by 16th November, 2013, whereas the above-quoted letter of designation issued on 4th December, 2013. However, two points might be made in this regard. The first is that too often in litigation one or more parties comes to court pointing to some contended-for deficiency in process and suggests that as a consequence of that deficiency the ‘house of cards’ constructed on same must of necessity collapse. But houses can stand on imperfect foundations: law is an instrument of government, and government is ever an exercise in the practicable, not in perfection; a failure to do something strictly as required by law may not have any practical consequence. The second point is that a legal requirement to do something need not evaporate because the required is not in fact done by a prescribed date. Of course, legislation can provide to the contrary, but here it does not: the duty to designate contained in Art.8(1) subsisted beyond 16th November, 2013, and was satisfied by Ireland on 4th December, 2013.
(v) the applicants contend that the designation of An Bord Pleanála as a competent authority and that its role as such ought to have been done by way of primary or secondary legislation. The court admits that it harboured some initial doubt as to whether the principle of legal certainty (the principle that the law must provide those subject to it with the ability to regulate their conduct – a central tenet of any system based on the rule of law) could be satisfied where designation took place by private letter. And, in passing, the court respectfully does not accept the contention by counsel for the second-named respondent that had designation taken place by way of legislation this would necessarily have contravened the principle identified, inter alia, in Variola whereby the Community nature of a legal rule must not be concealed from those subject to it: Variola was concerned with the effective replication of Community provisions in the domestic context; the unvarnished designation of a competent authority consequent upon European Union regulation, so as to do what such regulation expressly requires, is but the plain and simple discharge of a European law obligation, nothing more. Indeed, it is notable in this regard that Malta, the only other member state to designate its planning authority as the competent authority in that jurisdiction for the purposes of the PCI Regulation, did so by way of secondary legislation, viz. the Environment and Development Planning Act (Amendment No. 2) Order 2014 (L.N. No. 362 of 2014) and nobody before the court has suggested that Malta is somehow in breach of European Union law in this regard – not that the court is competent, or would presume, to make any adjudication, or comment, upon such a suggested breach in any event. But, on reflection, it seems to the court that there must be and is a point at which the necessity for legislation may properly end and continuation by administrative mechanism may properly commence. That point, it seems to the court, was reached in the within context with the adoption of the PCI Regulation. What An Bord Pleanála has to do as competent authority is laid out in black-and-white in that regulation, especially Art.9 of same, there is no need to supplement that with domestic legislation (and to replicate in domestic law the provisions of, e.g., Art.9, would, as stated, have placed Ireland in breach of Variola).
As to the act of designation simpliciter, the court accepts the analogy advanced by counsel for the second-named respondent, and touched upon previously above, that here one is down to something akin to the designation of those ‘authorised officers’ whose appointment is so often contemplated by domestic legislation and who often have extensive powers, yet whose designation can quite properly take place other than by way of primary or secondary legislation. Nor does the court see any constitutional basis for the contention made as to the need for primary or secondary legislation: such a contention is not supported by Art. 15, this is not a case where legislation is required, the PCI Regulation is directly applicable, it gives the Minister (acting for the Government and consistent with Article 28 of the Constitution) the power to designate, such designation has been effected and that is an end of matters. And, returning to Maher, so far as any independence from the principles and policies of the PCI Regulation is contended, if it is contended, to present in what the State has done as regards designation of An Bord Pleanála as a national competent authority under the PCI Regulation, the court sees none.
78. (9) There is some suggestion made by the applicants that the Minister for Communications, Climate Change and Environment is not the correct Minister to make the designation. In this they are, with respect, wrong. Tracing the authority of the present minister and department back to the Ministers and Secretaries Act 1924 involves a somewhat byzantine trek through a myriad of primary and secondary legislation but, having regard to the legislative stepping-stones that take one through that journey (as identified below), there can be no doubt but that the correct minister has designated An Bord Pleanála as the national competent authority for the purposes of the PCI Regulation:
Ministers and Secretaries Act 1924
Establishes the Department of Industry and Commerce with responsibility for the administration and business generally of public services in connection with trade, commerce, industry, and labour, industrial and commercial organisations and combinations, industrial and commercial statistics, transport, shipping, natural resources, and all powers, duties and functions connected with the same, including the promotion of trade and commerce by means of educational grants, including in particular the business, powers, duties and functions of the branches and officers of the public services specified in the Sixth Part of the Schedule to the Act of 1924, and of which Department the head is stated to be the Minister for Industry and Commerce. (The Sixth Schedule includes the Electricity Commissioners).
Ministers and Secretaries (Amendment) Act 1959
Establishes the Department of Transport and Power.
Transport, Fuel and Power (Transfer of Departmental Administration and Ministerial Functions) Order, 1959
(S.I. No. 125/1959)
Transfers from the Department of Industry and Commerce to the Department of Transport and Power the administration and business in connection with the exercise, performance or execution of the functions under various Acts, including Acts in relation to electricity, gas, turf and oil. The functions of the Minister for Industry and Commerce under these Acts are transferred to the Minister for Transport and Power.
Energy (Transfer of Departmental Administration and Ministerial Functions) Order, 1977
(S.I. No. 295 of 1977)
Transfers from the Minister for Transport and Power to the Department of Industry and Commerce the administration and business in connection with the exercise, performance or execution of functions under various Acts, including Acts in relation to electricity, gas and turf. The functions of the Minister for Transport and Power under the said Acts are also transferred to the Minister for Industry and Commerce.
Industry and Commerce (Alteration of Name of Department and Title of Minister) Order, 1977
(S.I. No. 306 of 1977)
Alters: the name of the Department of Industry, Commerce and Tourism to that of the Department of Industry, Commerce and Energy; the title of the Minister for Industry and Commerce to Minister for Industry, Commerce and Energy.
Energy (Transfer of Departmental Administration and Ministerial Functions) Order, 1980
(S.I. No. 9 of 1980)
Transfers from the Department of Industry, Commerce and Energy to the Department of Energy, the administration and business in connection with the exercise, performance or execution of functions under various Acts, including Acts in relation to electricity, gas and turf. The functions vested in the Minister for Industry, Commerce and Energy are transferred to the Minister for Energy.
Energy (Transfer of Departmental Administration and Ministerial Functions) (No. 2) Order, 1993
(S.I. No. 12 of 1993)
Transfers from the Department of Energy to the Department of Tourism, Transport and Comunications the administration and business in connection with the exercise, performance or execution of functions under various Acts, including Acts in relation to electricity, gas and turf. The functions vested in the Minister for Energy are transferred to the Minister for Tourism, Transport and Communications.
Tourism, Transport and Communications (Alteration of Name of Department and Title of Minister) Order, 1993
(S.I. No. 17 of 1993)
Alters: the name of the Department of Tourism, Transport and Communications to that of the Department of Transport, Energy and Communications; the title of the Minister of Tourism, Transport and Communications to that of the Minister for Transport, Energy and Communications.
Communications, Energy and Geological Survey of Ireland (Transfer of Departmental Administration and Ministerial Functions) Order 2002
(S.I. No. 300 of 2002)
Transfers from the Department of Public Enterprise to the Department of Marine and Natural Resources the administration and business in connection with the exercise, performance or execution of functions under various Acts, including Acts in relation to electricity, gas and turf. The functions vested in the Minister for Public Enterprise are transferred to the Minister for the Marine and Natural Resources.
Marine and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2002
(S.I. No. 307 of 2002)
Alters: the name of the Department of Marine and Natural Resources to that of the Department of Communications, Marine and Natural Resources; the title of the Minister of Marine and Natural Resources to that of the Minister for Communications, Marine and Natural Resources.
Communications, Marine and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2007
(S.I. No. 706 of 2007)
Alters: the name of the Department of Communications, Marine and Natural Resources to that of the Department of Communications, Energy and Natural Resources; the title of the Minister for Communications, Marine and Natural Resources to that of the Minister of Communications, Energy and Natural Resources.
Communications, Energy and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2016
(S.I. No. 421 of 2016)
Alters: the name of the Department of Communications, Energy and Natural Resources to that of the Department of Communications, Climate Action and Environment; the title of the Minister for Communications, Energy and Natural Resources to that of the Minister for Communications, Climate Action and Environment.
79. The applicants complain that the designation of An Bord Pleanála was effected by a letter from a senior civil servant (the letter of 4th December, 2013) , without any evidence as to the status or nature of the decision and, per the applicants’ written submissions, “[p]resumably (though this is not clear), on the application of the Carltona principle” (so-called after the decision of the Court of Appeal of England and Wales in Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560, which, though devised by reference to the exigencies of wartime conditions, is now perceived as having recognised as a practical reality of modern government that it would be unworkable that a minister, as political head of a government department could personally take every decision given by law to that minister).
80. The suggestion that there is any deficiency from a Carltona perspective with the manner in which An Bord Pleanála was designated as a competent authority in the circumstances at issue in the within application is not well-founded and is perhaps best addressed by reference to the relatively recent decision of the Supreme Court in W.T. v. Minister for Justice and Equality [2015] IESC 73. That case was concerned with an issue which had for some time troubled judges tasked with working on the Immigration List, specifically whether a deportation order under s.3 of the Immigration Act of 1999 had to be signed individually by the Minister. The Supreme Court found that this was not a requirement of the Act of 1999. In his judgment, MacMenamin J., at para. 1, identifies, in the following terms, the substance of the Carltona principle:
“It is now well recognised in the law that each minister must both bear political responsibility to the Dáil, and legal responsibility in the courts, for actions taken by their own departments. In law, ministers are regarded as being one and the same as the government departments of which they are the political heads. Conversely, departmental officials act in the name of the minister. In making administrative decisions, therefore, discretion is conferred on a minister, not simply as an individual, but rather as the person who holds office as head of a government department, which collectively holds a high degree of collective corporate knowledge and experience, all of which is imputed to the political head of the department. Frequently a minister’s officials will prepare documents for consideration, consider objections, summarise memoranda, and outline a policy approach to be taken by the Minister as an integral part of the decision-making process. Part of this arrangement, identified as the eponymous Carltona principle, is that the functions entrusted to departmental officials are performed at an appropriate level of seniority, and within the scope of responsibility of their government department. No express act of delegation is necessary. When the principle became a recognised part of Irish law, it was characterised as being a ‘common law constitutional power’ (see Carltona Ltd v Commissioners of Public Works [1943] 2 All E.R. 560; Bushell v Secretary for State for the Environment [1981] AC 75; R. v Home Secretary, ex p.Oladehinde [1991] 1 AC 254 at 282 approved by Hamilton C.J. in Tang v Minister for Justice [1996] 2 I.L.R.M. 46 and in Devanney v Minister for Justice [1998] 1 IR 230; [1998] 1 ILRM 81). The constitutional origins of the power derived from the executive power of the State, identified, inter alia, in Art.28 of the Constitution”,
and then concludes as follows, at para. 39, as to the issues raised before the court:
“I am not persuaded that the appellants have succeeded in demonstrating that the decision-making power in question has been negatived, confined, or restricted by express statutory provision, or by clear necessary implication. The statute of 1999 simply does not allow for such an interpretation. It is true that the Carltona doctrine can sometimes be criticised as imposing an exception of uncertain scope to what is sometimes called the rule against ‘sub-delegation’. But what is in question in this appeal is clearly devolved power to an official, rather than delegation per se. Effectively, the principle is that departmental officials are the alter-ego of the Minister and their decisions are, legally and constitutionally, the Minister’s acts and decisions. The decisions here cannot be impugned on the basis of the case made. But this is not to ignore the principle of vires. I would dismiss the appeal therefore.”
81. Likewise in the within case, what the applicants have sought to impugn, as somehow inconsistent with the Carltona principle, devolved power exercised by a very senior official (an Assistant Secretary General). The court respectfully does not see any deficiency to arise in this regard.
VII. Bias
82. So far as the applicants’ allegation of bias against An Bord Pleanála is concerned, the court understands that what is contended for is what might be styled a ‘pre-determination’ argument, i.e. that An Bord Pleanála as competent authority has some bias in favour of the North-South Interconnector proceeding. Such a contention is not borne out by what is required under the PCI Regulation. The regulation involves, in effect, a form of case management and a form of public participation, and there is no criticism made of the public participation dimension of the application process that EirGrid underwent. The proposition that a body whose function it is to facilitate the efficient disposition of planning applications or any other sort of applications is, by reason of exercising that function, disabled from dispassionately deciding upon the application is, with respect, unusual. The court has been referred, inter alia, in this regard, to the decision of the Supreme Court in Reid v. IDA [2015] IESC 82. One of the many interesting aspects of McKechnie J.’s judgment in that case is his recitation in the context of his consideration under the heading “The Bias Argument”, at para. 78, of the information of which he considered the notional reasonable person or “observer” would stand possessed. It is instructive to undertake, in the context of the case now presenting, a like analysis of what information the notional reasonable person would stand possessed. It seems to the court that that information would comprise, at the least, that: (i) contrary to what the applicants have contended, An Bord Pleanála is not the promoter of the project; (ii) EirGrid is the promoter; (iii) An Bord Pleanála’s role as competent authority is effectively administrative; (iv) within An Bord Pleanála its competent authoritity-related functions are discharged by a separate unit; and (v) the object of the PCI Regulation is to expedite the consent process (something which is surely in the interests of all stakeholders).
83. In the context of bias, the court has been referred to the decision of Callaghan v. An Bord Pleanála [2015] IEHC 357. The statutory focus of that case was the Planning and Development (Strategic Infrastructure) Act 2006, under which applications in respect of strategic infrastructure development may be made directly to An Bord Pleanála. Before An Bord Pleanála can accept such applications, it must, under s.37A(2) of the Act of 2006, be satisfied as to certain matters, viz. that the development (i) would be of strategic economic or social importance to the State or the region in which it is situate, (ii) would contribute substantially to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the area/s in which it would be situate, and (iii) would have a significant effect on the area of more than one planning authority. So what happens in practice is that application is made to An Bord Pleanála, with that part of the process being essentially a bilateral process, i.e. it occurs between the developer and An Bord Pleanála, with the public having no opportunity to make submissions at that stage of the process. If An Bord Pleanála forms the opinion that a proposed development satisfies the criteria aforesaid, it will admit it into the Strategic Infrastructure Development (or ‘SID’ process) and then progress it accordingly. Among the many different arguments made in Callaghan was an argument that in addressing its mind to the factors aforesaid for the purposes of admission to the SID process, the Board was prejudging part of the elements of the final application and the reason why that was stated to be the case, inter alia, was because s.143 of the Act of 2006 requires that:
“The Board shall, in performing its functions, have regard to:-
(a) the policies and objectives for the time being of the Government, a State authority, the Minister, planning authorities, and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and sustainable development of cities, towns or other areas, whether urban or rural,
(b) the national interest and any effect the performance of the Board’s functions may have on issues of strategic economic or social importance to the State, and
(c) the National Spatial Strategy and any regional planning guidelines for the time being in force.”
84. There is an echo in the just-quoted text of the matters (mentioned previously above) that An Bord Pleanála has to consider at the ‘admission to SID’ stage. So one of the arguments advanced in Callaghan was that because An Bord Pleanála had received this information ex parte, without any opportunity for the public to be involved, and had adopted a view for the purposes of admission, when it then came to look at, inter alia, those factors for the purposes of determining the substantive planning application, it had effectively prejudged part of the considerations of proper planning and sustainable development. That argument was rejected by Costello J., who states as follows, at para.75 of her judgment:
“It is argued that it necessarily follows, either as a matter of fact or perception, that the Board predetermines the issue as to whether or not the proposed development is of strategic economic or social importance in the State before the application for planning permission is submitted. In my opinion, this falls very short of the position in Tomlinson.
[Brief consideration of the just-mentioned case ensues. Then Costello J. continues as follows.]
…In my opinion, the cases of Dublin And County Broadcasting Limited v. Independent Radio and Television Commission (Unreported, High Court, Murphy J., 12th May, 1989) and Spin Communications Ltd v. Independent Radio and Television Commission [2000] IEHC 128 are of more relevance. The test there established is that the question of bias must be determined on the basis of what a right-minded person would think of the real likelihood of prejudice and not on the basis of a suspicion that might dwell in the minds of a person who is ill-informed and who did not seek to direct his mind properly to the facts. Applying this test, it cannot be said that such a reasonable well-informed person would reach the conclusion that the board was biased and had predetermined the planning consent application on the basis of the Section 37(B) opinion….
In this case, the Board’s decision pursuant to Section 37(B) is not determinative of socio-economic aspects of the application for planning permission and the decision it has to make pursuant to Section 37(G) [that being the decision on the substantive application]. The Board will re-visit some of the material which it considered in the context of Section 37(B) when reaching the different decision required of it pursuant to s.37(G) [i.e. to grant or refuse]. In addition, of course, at this stage, the Applicant and others will have had full opportunity to present such information or arguments to the Board in relation to this aspect and other aspects of the application as they see fit. This applies in all applications under the scheme. These matters must be considered by the Board when exercising its discretion in respect of the application for permission. In those circumstances, I do not accept that it can fairly be argued that every case which goes before the Board pursuant to the statutory scheme must appear tainted by bias and pre-determination. As the applicant’s case is based on the statutory scheme and not on any particular facts, I am not persuaded by this argument.”
85. Notably, Costello J. does not, in the just-quoted text, require applicants to put their faith blindly in the inherent or natural goodness of public administration. She merely points to the fact that the scheme as constructed by statute does not yield the necessary conclusion that “that every case which goes before the Board pursuant to the statutory scheme…[is] tainted by bias and pre-determination”. If, of course, an applicant can establish “particular facts” which do show a contended-for prejudice to arise then the possibility presents that they will receive discretionary relief pursuant to any ensuing judicial review application.
86. Applying the decision in Callaghan to the facts at hand, in that earlier case An Bord Pleanála had to form at least a preliminary ex parte view on matters which were relevant to the ultimate grant or refusal of permission. Yet that dual role, on the facts presenting before Costello J. was not sufficient to lead to a reasonable apprehension of bias. The facts of the case before this Court seem even weaker than those at issue in Callaghan because at the competent authority stage of the process, An Bord Pleanála looks at no matters of substance and no matters of procedure turn upon the fact that there even was a competent authority PCI process prior to the permit in this case.
87. The applicants’ case, so far as bias is concerned, ‘boils down’ to the following issue: does the fact that An Bord Pleanála, as competent authority, has a coordinating role (whereby effectively it tries to keep other consent authorities, if there are other consent authorities on track in terms of time limits) impinge in some way upon its impartiality? The short answer to that question is ‘no’. There is nothing that An Bord Pleanála is required to do as competent authority that in any way directs it to grant planning approval for the North-South Interconnector project. It is simply required to ensure that there is an outcome one way or the other within the timeframes envisaged. That is all that is required. There is nothing in the PCI Regulation that presupposes that An Bord Pleanála will not duly carry out assessment in terms of the environmental impact assessment, in terms of appropriate assessment, or in terms of the national law test of proper planning and sustainable development. Even in a more complicated case with a number of consent authorities, there is a striking limit to what An Bord Pleanála is empowered or able to do. As counsel for the second-named respondent colourfully put it in the course of argument, in that multi-party situation “all that An Bord Pleanála can do is effectively herd cats”. In other words An Bord Pleanála can attempt, to use a colloquialism, to ‘put some order’ on the other consent authorities; however, it cannot sanction them, it cannot make their decisions for them, and it cannot overrule their decisions. There is nothing in any of the foregoing or in the evidence before the court which suggests that either generally or on the facts of the case at hand, An Bord Pleanála can promote or has been promoting the North-South Interconnector project. In truth, notwithstanding the vigour with which the allegation of bias was contended for, it is striking that the court was never pointed to a particular provision of the PCI Regulation which creates the inevitable conflict posited to arise…and with good reason, for there is no such provision. Viewed as aforesaid, viewed through the prism of what the reasonable observer knows, it seems to the court that the claim of objective bias must and does fail.
VIII. What if the Court is wrong?
(i) Overview.
88. What if the court is wrong and the designation of An Bord Pleanála as competent authority ought, whether by virtue of the principle of legal certainty or otherwise, to have been effected by way of primary or secondary legislation? The court does not consider that it is wrong in this regard; however, if it is, the proper legal conclusion is not that everything that An Bord Pleanála has done vis-à-vis EirGrid’s application collapses for want of validity, with the court having to press a notional re-set button that will cast everyone involved in the within matter back to the beginning of what has already been a long and challenging process. Rather it seems to the court that the circumstances identified at (ii) below and the consequences identified at (iii) would then present.
(ii) Issuance of Consent pursuant to s.182B.
89. If it is the case (which the court does not accept) that An Bord Pleanála’s appointment as competent authority under PCI is in some sense irregular because that designation was not done by way of primary or secondary legislation, what does that mean for the development consent? The answer to that question is ‘nothing’. The development consent has issued under s.182B and stands on its own two feet. In this regard it seems to the court to be important to note the terms in which An Bord Pleanála expressed its decision having regard to the requirements of the PCI Regulation. Thus if one has regard to the Board Order that issued consequent upon the application, it states as follows, in the “Notes” section, under the heading “Project of Common Interest (PCI) – Regulation (EU) No. 347/2013”:
“The Board acknowledged that the matter of PCI was raised by observers and was referred to in the Inspector’s report.
The Board considered that, even in the absence of PCI status, the need for the project and the need to improve the quality of energy transmission in the island of Ireland has been clearly established, as set out in the reasons and considerations.
In reaching the decision in this case the Strategic Infrastructure Division of An Bord Pleanála confined its decision to the matters pertinent to the SID application and in particular issues arising in respect of Appropriate Assessment, Environmental Impact Assessment and the consideration of the proper planning and sustainable development. The Board did not consider that it was conflicted in any way by the separate administrative role fulfilled by An Bord Pleanála as the Competent Authority for Projects of Common Interest.”
90. In light of the foregoing, it appears to the court, with respect, that there is a significant disconnect between (a) the complaint that there has been some irregularity in the appointment of the Board as competent authority and (b) the challenge to the planning decision. The planning decision stands on its own; the Board was entitled (and indeed required) to reach that decision.
(iii) De Facto Designation.
91. Just as the acts of an officer or judge may be held to be valid in law even though her appointment is invalid and in truth she has no legal power at all, the court considers that in the event (not accepted by the court to present) that primary or secondary legislation was necessary for a valid designation of An Bord Pleanála as competent authority, the acts of An Bord Pleanála which it has been sought to impugn in the within proceedings would nonetheless remain extant and lawful. In reaching this conclusion, the court recalls, inter alia, the decision of the Court of Appeal of England and Wales in Fawdry & Co. v. Murfitt [2002] 3 WLR 1354. That was a case in which the principal issue was when could a judge who had been assigned to the Technology and Construction Court (‘TCC’) sit and hear a regular case in the Queen’s Bench decision (of which the TCC is, apparently, a specialist division)? Much of the judgment is given up to analysing the applicable rules and regulations and is of no interest in the context of the within proceedings. However, what is of note is that ultimately the Court of Appeal did find that the judge was properly authorised to sit in the regular division of the Queen’s Bench, with an obiter but still persuasive consideration of the concept and standing of a de facto officer (and in truth, when it comes to authority that is but persuasive, the standing of particular elements of a judgment as part of the ratio decidendi or as obiter dicta seems to the court to matter less than would be the case if it were treating with binding precedent: ultimately persuasive authority is but that, i.e. logic deployed in one context that the court may find persuasive in another context, and nothing more). In any event, at 1361-2, Lady Justice Hale, as she then was, makes the following observations:
“18…[W]e have heard argument on whether, even if the case had not been validly transferred to the TCC, the judge’s order is valid as the act of a de facto officer. This longstanding doctrine of the common law is summarised thus in Wade and Forsyth, Administrative Law , 8th edition, at pp 291-292:
‘The acts of an officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so.’
19. It was held by Sir Jocelyn Simon P in Adams v Adams [1971] P 188 that despite the lack of modern English authority applying the doctrine, it was still part of the English common law (and had been overlooked in R v Cronin [1940] 1 All ER 618). He referred to ‘two masterly judgments of great learning’, State v Carroll (1871) 38 Conn 448 , in the Supreme Court of Connecticut, and In re Aldridge (1897) 15 NZLR 361 , in the Court of Appeal of New Zealand, and also to an even more learned article by Sir Owen Dixon, later Chief Justice of Australia, ‘De Facto Officers’ (first published in Res Judicatae, Melbourne, 1938, reproduced in S Woinarski, ed., Jesting Pilate, 1965).
20.Sir Owen explains that the doctrine has its origin in the medieval conception of an office as property, an incorporeal thing, to which the usual principles of the law of property applied. Thus a person who dispossessed another of his office, a disseisor, was nevertheless entitled to exercise the authority of that office, unless and until the disseisee exercised his right of re-entry. Nowadays, the rule is based not on that technicality but on public policy. Sir Owen quotes from Curtis v Barton (1893) 139 NY 505 , at p 511:
‘When a court of competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of the judge, who presides in the court, to his office.’
21. Despite its technical rationale in the notion of disseisin, the authorities show that the de facto officer must have some basis for his assumption of office, variously expressed as ‘colourable title’ or ‘colourable authority’. Quite what suffices for that purpose has been debated, a particularly broad view being taken in State v Carroll (1871) 38 Conn 448 . In that case, the elected judge of the city court not being available, the clerk of the court invited a justice of the peace to act in his place. The report does not reveal whether or not that justice knew that he had no lawful authority to sit. After an extensive review of the authorities, Butler CJ summarised the circumstances in which the doctrine would apply thus, at p 427:
‘An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised, First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. Third, under color of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, [under an unconstitutional statute, not relevant here]…’
The first was sufficient to validate the justice’s acts.”
92. It seems to the court that (a) the above reasoning can be applied by analogy to the circumstance (not accepted by the court to arise) that An Bord Pleanála ought to have been designated as competent authority by primary or secondary legislation, (b) in that non-presenting circumstance the third instance identified by Butler C.J. and referred to above is what would then present, (c) to borrow from the above-quoted wording of Wade & Forsyth, the logic of annulling all of An Bord Pleanála’s acts as competent authority would have to yield to the desirability (in the public interest) of upholding them under a general supposition of An Bord Pleanála’s competence so to act.
93. The court has also been referred in this regard to still another decision of the Court of Appeal of England and Wales, being Coppard v. Customs and Excise Commissioners (Lord Chancellor intervening) [2003] QB 1428. There, a case was heard by a circuit judge who knew that he had not been authorised under statute to sit as a judge of the High Court but wrongly believed that he had authority to sit in the Queen’s Bench Division by virtue of his appointment under statute to sit in the TCC. On appeal, it was held by the Court of Appeal, inter alia, that (a) the doctrine that acts of a de facto officer were valid in law did not operate to validate the acts of a person who, though believed by the world to be a judge of a court in which he sat, knew that he was not, (b) a person who knew he lacked authority included one who shut his eyes to that fact when it was obvious, but not one who had simply neglected to find out, (c) the judge in this case neither knew not ought to have known that he was not authorised to sit as a judge of the High Court, (d) therefore, on established principles of common law, the judge was a de facto judge of the High Court and his judgment was a valid judgment of the High Court.
94. Reasoning akin to that brought to bear by the Court of Appeal in Coppard falls to be applied, by analogy, in the circumstance – not accepted by the court to arise – that An Bord Pleanála ought to have been designated as competent authority by primary or secondary legislation. Thus: (a) An Bord Pleanála has hitherto been generally believed to be a validly designated competent authority and did not know that it was not; (b) An Bord Pleanála has neither shut its eyes to a want of validity in its designation as competent authority nor neglected to find out – it (rightly) is simply not an issue that has been considered to present; (c) applying established principles of common law to the analogous circumstance then presenting, An Bord Pleanála’s designation and actions as competent authority would fall to be treated as valid de facto. As Hale L.J. notes in her judgment in Fawdry, at 1366, “As Mr [now Lord Justice] Sales has been at pains to remind us throughout, the other party to this case has an interest in not being deprived of the benefit of his order and not being made to go through the whole process again unless there was something materially wrong with it. There was nothing materially wrong with this trial and it would be wrong to set it aside.” Likewise, in this case, EirGrid has an interest in not being deprived of the benefit of what it has attained through the application process, unless there was something materially wrong with that process…and there was nothing materially wrong with the process brought to bear and operated by An Bord Pleanála.
IX. Delay
95. The issue of delay was addressed by the judge who granted leave to bring the within application. It is clear, however, from the decision of the Supreme Court in O’Flynn v. Mid-Western Health Board [1991] 2 I.R. 223 that the judge hearing the full judicial review ought to re-visit the issue of delay. And, in any event, the judge who acted at the leave stage was only concerned with delay as a preliminary point, the argument there being that there had been a failure to comply with the time limit presenting under O.84 of the Rules of the Superior Courts (1986), as amended. At the trial stage, by contrast, delay also feeds in as a factor, that the court is entitled to take into account as regards the exercise of its discretion.
96. When it comes to the issue of delay, it is worth turning to consider certain of the exhibits furnished to the court as part of the affidavit evidence before it:
– on 15th May, 2014, An Bord Pleanála issued a document entitled “Projects of Common Interest, Manual of Permit Granting Process Procedures” which states as follows, at para. 1.3, under the heading “Competent Authority and Ireland”:
“The [PCI] Regulation seeks to facilitate the permit granting process for PCI by requiring Member States to appoint a Competent Auhtority responsible for making the comprehensive decision and to ensure that the comprehensive decision is made within the time limits specified in the Regulation. An Bord Pleanála was designated the Competent Authority in the Irish State on 4th December, 2013.”
So the fact of An Bord Pleanála’s designation was publicly available knowledge from at least 15th May, 2014.
– in point of fact, the applicants in this case were alive to the fact of An Bord Pleanála’s designation from November, 2014. Thus among the exhibits before the court is a letter from North East Pylon Pressure to the European Commission, signed by Ms Aimée Treacy, one of the deponents in the within proceedings and headed “Formal complaint to EU Commission by North East Pylon Pressure Campaign Group in relation to EirGrid’s planning applications for the North-South interconnector project, Ireland…”. This letter states, at p.39, that “DCENR [the Department of Communications, Energy and Natural Resources] appointed ABP [An Bord Pleanála] as Competent Authority for PCIs on 4th December 2013. ABP confirmed its appointment as Competent Authority (CA) for PCI on 20th December 2013”.
– also exhibited in the evidence before the court is a planning inspector’s report of 2nd May, 2014. This report arose from the fact that an application previous to that which led to the within application was submitted on behalf of EirGrid to An Bord Pleanála but withdrawn; an issue then arising was whether the new application was to be treated as an entirely new or a continuation of the withdrawn application. At para. 1.1 of the inspector’s report, the following observation appears:
“The Board will be aware that on the 4th December 2013 the Department of Communications, Energy and Natural Resources wrote to the Chairperson to confirm An Bord Pleanála’s appointment as the Competent Authority for purposes of implementation of the permit granting and other procedures for PCI’s established under Regulation (EU) 347/2013. This appointment was accepted by the Chairperson on 20 December 2013.”
So again one has in this document a publicly available document clearly confirming that An Bord Pleanála is and has been designated as the competent authority.
– finally, if one turns to the pleadings, one finds included among them a verifying affidavit of a Principal Officer in the Department of Communications, Climate Change and the Environment which includes the averment that “On the 12th June 2014, the then Minister for Communications, Energy and Natural Resources, Minister Rabbitte, stated on the Dáil record that the Board was designated as the competent authority for Projects of Common Interest in Ireland, in response to two Parliamentary questions”. So the suggestion that in some way it was a secret that An Bord Pleanála had been designated, with respect, does not bear scrutiny.
97. Be all the above as it may, the court concludes later below that it is not minded to grant any of the reliefs sought by the applicants. That is a conclusion that can safely be arrived at whether or not there has been any delay on the part of the applicants. So to the extent that delay presenting on the part of the applicants can now be counted against them, in truth it has no consequence to the within application, at least as regards the reliefs sought: the court cannot make them any more refused than they are.
X. ‘Brexit’
(i) Concerns Raised by Applicants.
98. The issue of ‘Brexit’ is touched upon at paras. 59-61 of the applicants’ written submissions and it is as well to begin by quoting these so as to understand the complaint made by the applicants in this regard:
“59. The Single Electricity Market Operator (SEMO) aims to facilitate the continuous operation and administration of the Single Electricity Market. It is a joint venture between the two applicants for the development, the subject-matter of these proceedings, namely the Notice Party (EirGrid plc) and the System Operator for Northern Ireland (SONI Limited). The organisation is managed as a contractual joint venture between EirGrid plc, the Transmission System Operator for Ireland, and SONI, the Transmission System Operator for Northern Ireland. It is licensed and regulated by both the Commission for Energy Regulation in Ireland and the Utility Regulator for Northern Ireland. It identified in September 2016 and February 2017 as a rising high or top risk what it described as ‘BREXIT Impact: Risk that Government revisits I-SEM decision, or National Grid/Ofgem choose not to comply with the European Network Codes or not actively support the Target Model cross border arrangements, resulting in changes to scope, project delays, cost overruns, reduced quality, or potentially undermine I-SEM’ and inter alia recommended close liaison between the Regulatory Authorities and the Departments (of Government) as part of the mitigating controls.
60. By virtue of Article 4(3) TEU and the principle of sincere cooperation, national courts are required, so far as possible, to interpret and apply procedural rules governing the exercise of rights of action in a way that achieves that result. Article 19(1) TEU…provides that Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by European Union law.
61. The First Named Respondent on page 9 of the decision dated the 19th December 2016 stated that the proposed development is likely to have significant effects on the environment of Northern Ireland which is described by the First Named Respondent as ‘an area of a Member State of the European Union (i.e. [the] United Kingdom of Great Britain and Northern Ireland).’ As a matter of EU law, the First Named Respondent by the manner in which it made its decision on the 19th December, 2016, has failed to consider the application of Article 3(4) and/or Article 5 of Regulation (EU) No. 347/2013 either as a PCI under Regulation (EU) No 347/2013 and/or as a Cluster as per Regulation (EU) 2016/89 and in circumstances where part of the said PCI and/or Cluster is within the United Kingdom and/or having regard to the consequences of the referendum held in the United Kingdom on the 23rd June 2016 (and/or in the alternative having regard to the consequences of any irrevocable withdrawal by the United Kingdom pursuant to Article 50 of the TEU.”
99. It appears from the foregoing that two separate points are made by the applicants. First, concerns are expressed about the consequences of the ‘Brexit’ referendum in the neighbouring jurisdiction for the North-South Interconnector project, the suggestion being that those concerns ought to have been addressed by An Bord Pleanála in its decision. Second, it is queried whether or not An Bord Pleanála was correct in concluding that the proposed development would have significant effects on the environment of another Member State in circumstances where the United Kingdom may or will at some point in the future be a non-EU member state, following on its ‘Brexit’ referendum of last year.
(ii) Uncertainty as to the Future.
100. A number of points might be made as regards the issues touched upon in the preceding paragraph:
(1) the general consequences of ‘Brexit’ are speculative at this time.
(2) the consequences of ‘Brexit’ for the implementation of the European internal energy market are speculative at this time.
(3) the consequences of ‘Brexit’ for the implementation of the North-South interconnector are speculative at this time.
(4) what can be stated with certainty is that: the United Kingdom was a member state of the European Union when An Bord Pleanála made its now-impugned decision, and the United Kingdom continues at this time to be so.
101. Additionally, the court notes that although the applicants indicate that there could be certain risks arising from Brexit, they do not appear to contend that those risks mean that the North-South Interconnector project should not be treated as a PCI. Insofar as there is a criticism of An Bord Pleanála having taken the view that the proposed development could have a significant effect on another Member State, that seems, with respect, a criticism that is hard to bring home. In fact, if one were to ‘flip’ An Bord Pleanála’s reasoning, i.e. if An Bord Pleanála was to have decided that it would not have any regard to any effects on another member state (on the basis that Northern Ireland is part of the United Kingdom which is a member state that appears to be on the path to exiting the European Union) that course of action, it seems to the court, would offer a valid avenue of complaint as regards An Bord Pleanála’s actions…but that is not what An Bord Pleanála did; in fact the opposite pertains.
102. It seems to the court that An Bord Pleanála was correct to approach matters as it did. As a matter of practical reality, no-one knows what the United Kingdom’s future status vis-à-vis the European Union will mean for the United Kingdom or Ireland or the internal energy market. What is known is that the ‘Brexit’ referendum did not have any de facto effect as regards removing the United Kingdom or any part of same from the European Union. Nor did it have any de facto effect as regards removing the North-South Interconnector project from the European Union’s list of PCI projects: the North-South Interconnector project was on the list, is on the list and will remain on the list unless and until steps are taken to remove it therefrom and those steps are completed. The applicants merely make the point that it is not clear what the United Kingdom’s future relationship with the European Union will be, and one need merely read each day’s newspapers to see the uncertainty that continues at this time to present in this regard, especially following the United Kingdom’s recent general election. But, when it comes to the particular subject-matter of the within application, matters are actually clearer than they were, even in December, 2016, thanks to the publication, in February 2017, by the United Kingdom Government, of a White Paper entitled “The United Kingdom’s exit from and new partnership with the European Union” (Cm 9417), in which that Government’s commitment to the concept and reality of a single electricity market on the island of Ireland is manifest. Thus, at p.43 of the White Paper, the following observations appear:
“With respect to energy, EU legislation underpins the coordinated trading of gas and electricity through existing interconnectors with Member States, including Ireland, France, Belgium and the Netherlands. There are also plans for further electricity interconnections between the UK and EU Member States and EEA Members. These coordinated energy trading arrangements help to ensure lower prices and improved security of supply for both the UK and EU Member States by improving the efficiency and reliability of interconnector flows, reducing the need for domestic back-up power and helping balance power flows as we increase the level of intermittent renewable electricity generation. We are considering all options for the UK’s future relationship with the EU on energy, in particular, to avoid disruption to the all-Ireland single electricity market operating across the island of Ireland, on which both Northern Ireland and Ireland rely for affordable, sustainable and secure electricity supplies.”
103. In terms of chronology, the White Paper was published after the circumstances that are the focus of the within application. However, as counsel for the applicants properly conceded at the hearing of the within application, it is appropriate for the court, when considering whether and how to apply a discretionary relief, to have regard to matters that are known to it now: though focusing on the past in its considerations it need not be entirely blind to the contemporary. But even if the court were to ignore the White Paper, the time to judge the validity of the impugned decision of An Bord Pleanála is the date of that decision (19th December, 2016), and at that date all that had occurred was that the Brexit referendum had taken place on 23rd June, 2016. That, of course, was a non-binding referendum. Indeed the very limited effect of same can be seen from the fact that in R. (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, the United Kingdom Supreme Court determined that even following the ‘Brexit’ referendum the United Kingdom could not initiate its withdrawal pursuant to Art. 50 TEU without an Act of Parliament permitting it so to do. It is true that Parliament later gave the necessary assent, leading to the ‘triggering’ of Art. 50 on 29th March, 2017, with the presently likely result of that ‘triggering’ being that there will be some kind of ‘Brexit’ in 2019. But at the time that An Bord Pleanála made its decision, the Miller case, the need for the intervention of the Westminster Parliament and the ‘triggering’ of Art. 50 all lay in the future. All that was known when An Bord Pleanála made its decision was that there had been a non-binding referendum of uncertain consequence in the United Kingdom, and nothing more.
(iii) Listing of Project.
1. The PCI Regulation.
104. It is instructive too when it comes to the ‘Brexit’ aspect of matters to look at the text of the PCI Regulation in this regard. Articles 3 and 5 of that Regulation provide, inter alia, as follows:
“Article 3
Union list of projects of common interest
1. This Regulation establishes twelve Regional Groups (‘Groups’) as set out in Annex III.1. The membership of each Group shall be based on each priority corridor and area and their respective geographical coverage as set out in Annex I. Decision-making powers in the Groups shall be restricted to Member States and the Commission, who shall, for those purposes, be referred to as the decision-making body of the Groups.
[Court Note: Annex I of the PCI Regulation, under the heading “PRIORITY ELECTRICITY CORRIDORS” references, at (2), “North-South electricity interconnections in Western Europe” and mentions Ireland among the “Member States concerned”].
…
3. The decision-making body of each Group shall adopt a regional list of proposed projects of common interest drawn up according to the process set out in Annex III.2, according to the contribution of each project to implementing the energy infrastructure priority corridors and areas and according to their fulfilment of the criteria set out in Article 4. When a Group draws up its regional list: (a) each individual proposal for a project of common interest shall require the approval of the Member States, to whose territory the project relates; if a Member State decides not to give its approval, it shall present its substantiated reasons for doing so to the Group concerned; (b) it shall take into account advice from the Commission that is aimed at having a manageable total number of projects of common interest.
4. The Commission shall be empowered to adopt delegated acts in accordance with Article 16 that establish the Union list of projects of common interest (‘Union list’), subject to the second paragraph of Article 172 of the TFEU. The Union list shall take the form of an annex to this Regulation. In exercising its power, the Commission shall ensure that the Union list is established every two years, on the basis of the regional lists adopted by the decision-making bodies of the Groups as established in Annex III.1(2), following the procedure set out in paragraph 3 of this Article. The first Union list shall be adopted by 30 September 2013.
5. The Commission shall, when adopting the Union list on the basis of the regional lists:
(a) ensure that only those projects that fulfil the criteria referred to in Article 4 are included…
Article 5
Implementation and monitoring…
8. A project of common interest may be removed from the Union list according to the procedure set out in Article 3(4) if its inclusion in that list was based on incorrect information which was a determining factor for that inclusion, or the project does not comply with Union law.
9. Projects which are no longer on the Union list shall lose all rights and obligations linked to the status of project of common interest arising from this Regulation.
However, a project which is no longer on the Union list but for which an application file has been accepted for examination by the competent authority shall maintain the rights and obligations arising from Chapter III, except where the project is no longer on the list for the reasons set out in paragraph 8.”
105. The North-South Interconnector project was first listed in Commission Delegated Regulation (EU) No 1391/2013 of 14 October, 2013, amending Regulation (EU) No 347/2013 of the European Parliament and of the Council on guidelines for trans-European energy infrastructure as regards the Union list of projects of common interest (O.J. L349, 21.12.2013, 28). To argue, by reference to Art. 5(8) of the PCI Regulation that a project listed on information that was correct at the time of listing under the Commission Delegated Regulation but which later changed, thanks to ‘Brexit’, would be information that would then come within the ambit of the phrase “incorrect information” seems to the court, with respect, to be a most tenuous contention. However, even in the event that that such a contention was found to be correct, it would still not avail the applicants. This is because the North-South Interconnector Project would come within the saving embrace of the second paragraph of Art. 5(9) of the PCI Regulation.
2. The 2015 Regulation.
106. Commission Delegated Regulation (EU) 2016/89 of 18 November, 2015, amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest [i.e. the PCI Regulation] (O.J. L19, 27.1.2016, 1) commences, inter alia, with the following recitals:
“(3) Projects proposed for the inclusion in the Union list have been assessed by the regional groups and meet the criteria laid down in Article 4 of Regulation (EU) No 347/2013.
(4) The draft regional lists of PCIs were agreed by the regional groups at technical-level meetings. Following positive opinions of the Agency for the Cooperation of Energy Regulators (‘ACER’) on 30 October 2015 on the consistent application of the assessment criteria and the cost/benefit analysis across regions, the regional groups’ decision-making bodies adopted the regional lists on 3 November 2015. Pursuant to Article 3(3)(a) of Regulation (EU) No 347/2013, prior to the adoption of the regional lists, all proposed projects were approved by the Member States to whose territory the projects relate.
(5) Organisations representing relevant stakeholders, including producers, distribution system operators, suppliers, and consumer and environmental protection organisations were consulted on the projects proposed for inclusion in the Union list.”
107. The Regulation then moves on to insert a new Annex VII into the PCI Regulation, identifying the Union list of projects and then makes, at para. 3 of the new Annex VII, the following provision in relation to the Union list that had been established by Commission Delegated Regulation (EU) No 1391/2013 (referenced previously above).
“(3) Definition of ‘No longer considered a PCI’
The phrase ‘No longer considered a PCI’ refers to projects from the Union list established by Regulation (EU) No 1391/2013 that are no longer considered PCIs for one or more of the following reasons:
– according to the new data the project does not satisfy the eligibility criteria;
– a promoter has not re-submitted it in the selection process for this Union list;
– it has already been commissioned or is to be commissioned in the near future and so it would not benefit from the provisions of Regulation (EU) No 347/2013; or
– it was ranked lower than other candidate PCIs in the selection process.
Such projects are not PCIs, but are listed with their original PCI numbers on the Union list for the sake of transparency and clarity.
They may be considered for inclusion in the next Union list if the reasons for not-inclusion in the current Union list no longer apply.”
108. The North-South Interconnector does not come within the definition of ‘No longer considered a PCI’ but continues to be listed at Annex VII, Section B, Category (2), para.2.13, under the principal heading “Priority Corridor North-South Electricity Interconnections in Western Europe (‘NSI West Electricity’)” and the sub-heading “Cluster of projects increasing the integration of renewable energy between Ireland and Northern Ireland”.
(iv) Some Conclusions.
109. The North-South Interconnector, at the time that An Bord Pleanála assessed it, was on the Union list. In accordance with Arts. 5(8) and (9) of the PCI Regulation, it was appropriate for An Bord Pleanála to progress the application as it did, concerning (as it did) a project on the Union list. The impugned decision of An Bord Pleanála reflects the legal position as of the date of that decision. As of that time (and this time), the United Kingdom remains part of the European Union, with all of the legal consequences that follow from that; and it will remain a full member until, at the very least, March, 2019. The precise implications for the single electricity market after the United Kingdom leaves the European Union, if it leaves the European Union, are not clear. However, although the future can never be mapped with complete certainty, at this time it appears, by reference to the United Kingdom Government’s White Paper of February, 2017, as quoted from above, that the United Kingdom government is committed to the concept and reality of a single electricity market on the island of Ireland.
110. In truth, although ‘Brexit’ is put up by the applicants as a significant part of their case, at no stage in their oral or written submissions have they identified a single authority which suggests that an event of this kind, i.e. a referendum result that has uncertain consequences and which will not change the law for a period of time after an administrative decision is made, nonetheless has the effect of vitiating that administrative decision. Is it the case that every administrative decision made in this State by bodies which may or may not be affected by what ‘Brexit’ may or may not involve are now to be declared unlawful because decision-makers apply the status quo and the legal position as it prevails today to the facts before them? The answer to that question is simply stated: of course it is not. None of the risks that might be attributable to ‘Brexit’ have yet crystallised, it is not clear what those risks even are, it is not clear what the effect of those risks may be for the interconnector project. Thus it is premature for any challenge to be made to the decision of An Bord Pleanála by reference to ‘Brexit’; it was not a matter which An Bord Pleanála ought to have considered and it was appropriate for An Bord Pleanála not to do so.
XI. Error on the Face of the Record
111. The applicants contend, inter alia, that An Bord Pleanála acted ultra vires and without jurisdiction in purporting to grant approval for a proposed development inclusive of approximately 34km located in Northern Ireland (with the alleged error of law also appearing on various pages of the impugned record/decision). This assertion, with respect, does not withstand even the scantest of scrutiny. If one looks to the Board Order, it states as follows under the heading “Proposed Development”:
The overall interconnector (approximately 138 kilometres long inclusive of approximately 34 kilometres located in Northern Ireland) will link the existing electricity transmission networks of Northern Ireland and Ireland between Turleenan, County Tyrone and Woodland, near Batterstown, County Meath. This interconnector has been designated as a Project of Common Interest (PCI) pursuant to the provisions of Regulation (EU) No. 347/2013 of the European Parliament and of the Council of 17th April 2013 on guidelines for trans-European energy infrastructure.
he proposed North-South 400 kilovolt Interconnection Development located in Counties Monaghan, Cavan and Meath, which will be the subject of the application for approval, is approximately 103.35 kilometres long and consists of the following principal elements…”
112. In essence, what is stated in the above-quoted text is not so very removed from saying, to use a loose analogy, ‘Ms X’s farm straddles Counties Donegal and Tyrone. She is applying for planning permission to build a house on the Donegal end of her farm.’ The notion that in describing matters so, such an application assumes an extra-jurisdictional dimension is, with respect, fantastic. Putting an application in its cross-border context does not render that application a cross-border application. Returning to the facts at hand, EirGrid did not seek approval for development in Northern Ireland and An Bord Pleanála did not purport to grant approval for development in Northern Ireland, notwithstanding that the North-South Interconnector project in its entirety, and as its name would suggest, will reach into Northern Ireland. The decision of An Bord Pleanála on its face cannot reasonably be read as representing anything other than what it says it is, being a decision to accede to the application made by EirGrid, which application did not seek approval for any development in Northern Ireland, albeit that is it part of a wider development that in its joined-up form will straddle Northern Ireland.
XII. The Inspector’s Report
113. It is contended by the applicants that certain matters were not dealt with adequately by An Bord Pleanála. It may be useful in this regard to quote a portion of the applicants’ submissions so as to get a sense of what is contended in this regard:
134. Article 3(d) of the EIA Directive (2011/92/EU) requires information to be
provided by the developer to include ‘an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects.’ This requirement is replicated with identical wording, in paragraph 1(d) of Schedule 6 of the Planning and Development Regulations, 2001, as amended.
135. The First Named Respondent erred in failing to assess the alternatives to the proposed development, including: (i) failing to properly and comprehensively consider the undergrounding option or partial undergrounding option of the proposed development; (ii) erred in determining that the overhead power line was more appropriate and cost effective when compared to other alternatives, including undergrounding; (iii) had no and/or insufficient regard to the rights of affected landowners and the potential health hazards associated with the overhead lines when assessing alternatives to the project; (iv) failed to ensure that a proper cost/benefit analysis of the proposed development was completed; (v) had no or insufficient regard to alternative interconnectors and PCIs, specifically the First Named Respondent had no regard to the potential alternative interconnector between Ireland and the United Kingdom of Great Britain (including Northern Ireland) namely the Interconnection between Srananagh (IE) and Turleenan (UK).”
114. The court proceeds with a consideration of these lines of objection hereafter. In passing, however, the court notes that it does not understand complaint to be made by the applicants by reference to the judgment of the court in Connolly v. An Bord Pleanála [2016] IEHC 322. However, even had such complaint been made, the court would in any event have found ample ground for distinction between that case and this in that in Connolly, unlike here, An Bord Pleanála placed reliance on an inspector’s report notwithstanding that (i) the development in issue had changed, and changed substantially, following the issuance of the inspector’s report; and (ii) notably, even confusingly, the inspector’s report was not favourable, or in material parts was not favourable, to the relevant development. In those circumstances, the court came to the conclusion that it did. In this case, by contrast, there has been no like change to the development and there is no ‘clear blue water’ between the inspector’s findings and that of An Bord Pleanála.
XIII. Access
(i) Overview.
115. Before looking at the specific arguments that have been raised around access, it is helpful briefly to analyse what the relevance of access is to the North-South Interconnector project and to the within application. This is because the notion of access can refer to a number of different things, and it is important to identify what they are and what An Bord Pleanála was and was not concerned with.
116. As should now be clear, the intended pylons are to be constructed on private land and the relevant contractors will have to get themselves and their equipment onto the land so as to engage in the act of construction. A number of access-related issues then arise:
(1) as the land is private land, how do the contractors legally obtain access to the private land?
(2) does whatever the contractors are doing in the course of getting themselves and their equipment to the location of the pylon require development consent/planning permission?
(3) whether or not such consent/permission is required, insofar as An Bord Pleanála is considering an application for approval under Section 182A, is the access in the sense of getting from the road to the pylon something which needs to be assessed as part of the EIA?
(4) whatever the answer to (1)-(3), is An Bord Pleanála entitled in granting development consent to have regard to the question of access when fashioning conditions attached to that consent?
117. There does not appear to be any dispute between the parties, and at law there is no uncertainty, that an application for development consent does not allow a party to do anything except construct the development for which consent is obtained. Issues of access in the sense of getting a legal entitlement to get on the land are independent of that and are resolved in one of two ways: either (a) a landowner agrees to allow a developer onto affected land or (b) a contractor resorts to the use of such statutory powers as it may possess to achieve that access.
118. As to whether planning permission is required to get contractors from road to site of construction, EirGrid’s submission and position is that it is not required. It has presented methods of access which it believes can be achieved using existing entrances and using equipment which will not require the undertaking of works that would require development consent. EirGrid is either right or wrong in this regard. (It believes itself to be right). The way the inspector rationalised matters was to say, quite correctly, that An Bord Pleanála was concerned with the application before it, the developer maintained that they could obtain the necessary access and if the developer was wrong, that was for another place and day.
119. As to the third issue touched upon above – did access need to be assessed as part of the environmental impact assessment in any event? – the developer adopted the view that the information should be put before An Bord Pleanála so as to allow that assessment to occur and An Bord Pleanála, as it was entitled to do, agreed with that view and properly proceeded with its assessment.
120. Finally, if no development consent is sought in relation to access can there properly be any conditions that relate to access? At first glance, it seems almost counter-intuitive that the answer to this question would be ‘yes’. Indeed, counsel for the applicants contended that where an application does not include an application for access and a condition in the permission refers to access, that is unlawful. However, if one pauses to consider this last proposition, it just cannot be true or, at the very least, it cannot always be true. Suppose, for example, that a homeowner is having a rear extension built on to her house for which she needs planning permission. Suppose too that she does not seek any permission for access (because she does not need planning approval to get contractors and materials from the front of her house to the back). She may find that such permission as issues nonetheless comes subject to access-related conditions. She may, for example, be living on a very busy road and the local authority or An Bord Pleanála may condition the planning permission by providing, for example, that the homeowner during the period that the development is being constructed is not to have any lorries outside her house before ten o’clock in the morning or after four o’clock in the afternoon, perhaps because her house is situate on the main road to the local airport. That is a condition relating to access. But, with respect, no-one could reasonably, let alone correctly, suggest that such a condition was necessarily unlawful.
121. Returning to the conditions imposed in the case at hand, it will be recalled that these provide, inter alia, as follows:
“Prior to the commencement of development, a construction and environmental management plan, a traffic management plan and a waste management plan shall be submitted to, and agreed in writing with, the relevant planning authority following consultations with relevant statutory agencies….This plan shall incorporate the mitigation measures indicated in the environmental impact statement and shall provide details of intended construction practice for the proposed development, including…
(c) site specific arrangements for each temporary access route, to include, where necessary:
(i) arrangements for stepping down vehicle size,
(ii) arrangements for off-loading of materials,
(iii) short-term road closures,
(iv) the phasing of construction works which are accessed by single-lane carriageways, and
(v) the arrangements for the transfer and management of concrete, including wash out facilities.”
122. The criteria for conditions such as those just quoted, subject to the normal rules of vires, is that they are viewed by the permit granting authority as appropriate in the interests of proper planning and sustainable development and there is no evidence that in this case they were not so viewed (and the mere fact that they were included is evidence that they were so viewed). They are not affected, and their legality cannot be affected, by reason of the fact, to go back to the formulation that counsel for the applicants presented, that where an application does not include access, a condition in the ensuing consent which refers to access is unlawful.
123. So if the court stands back from the access issue and tries to analyse it element by element, matters reduce themselves to this: (1) the application before the court is for development consent; (2) if, in the course of undertaking a development for which consent is required, a developer is going to do something which does not require consent or permission, then the consent or permission need not be sought; (3) if the developer then breaches the planning laws by obtaining or seeking to obtain access in a manner which in fact requires consent or permission there are recognised methods in law for dealing with that: it is not a matter for the court to resolve before development commences. Viewed so, the vires objection now raised in relation to the above-quoted conditions concerning access is, with respect, an argument without merit.
(ii) The Substance of the Inspector’s Report.
124. “Access routes” are first considered by the inspector at p.98 of her report, in the following terms:
“The applicant proposes using existing access routes to agricultural land to access tower sites, stringing locations and guarding areas. Mr Keane [counsel for the applicants] queried why these temporary access routes did not form part of the planning application.
In the Board’s pre-application meeting with the applicant, the Board advised the then prospective applicant that ‘the planning application drawings should indicate access to tower locations for construction and servicing purposes at the point of the public road’ (Record of Meeting, December 2013).
I would also note that the Board advised the applicant (minutes of the Board’s pre-application meeting with the applicant held on the 23rd December 2013) in respect of the access to construction towers that the drawings ‘could be similar to those submitted in the application for the Laois-Kilkenny Reinforcement Project’ (VA0015). Statutory drawings for this route did not identify temporary access routes to tower sites.
It was confirmed by the applicant on numerous occasions during the oral hearing that the access roads do not form part of the planning application, but are presented in an indicative manner in order to allow environmental impact assessment of the development. In this context, it would not appear inappropriate that the access routes are omitted from the statutory drawings. The Board can only adjudicate on the application as so presented and should it transpire at some future date that works, constituting development, are required to facilitate access, then EirGrid will be constrained by the provisions of the planning acts. There is no substantial evidence before the Board at this time that any such works are likely to be required.”
125. It seems to the court that this last-quoted passage is a notable one. What An Bord Pleanála makes clear in this passage is that: it is not giving permission for any of the access roads; it is considering those access roads purely for the purposes of its environmental impact assessment; and should it transpire in the future that the temporary access routes require works such as to constitute development within the context of the planning legislation, that that is something which will have to be dealt with at another date. So in no sense are the temporary access routes being permitted by An Bord Pleanála.
126. There follows next in the inspector’s report a segment headed “Access routes in sensitive locations”, which reads as follows:
“Mr Keane SC also raised issues regarding ‘works’ including the laying down of matting to form a road which he argued constituted development under section 3 of the Planning and Development Act. He also noted the provisions of section 4(1)(ia) which states:
(ia) development (other than where the development consists of provision of access to a public road) consisting of the construction, maintenance or improvement of a road (other than a public road) or works ancillary to such road development, where the road serves forestry and woodland.
He stated that the type of access routes proposed by the applicant do not qualify for an exemption under this section. He also brought the attention of the Board to the provisions of Section 4(4) which de-exempts development where an environmental impact assessment of the development is required.
It was confirmed by EirGrid that the temporary access roads will not involve ‘works’ as defined under Section 2 of the Act. There will be no construction and no excavation. There are no proposals to develop stone roads and no timber sleepers will be installed. In the vast majority of cases, access will be along existing tracks and where this is not possible, mats will be placed on the ground surface to facilitate construction machinery.
I would again draw the attention of the Board to Class of the Regulation referred to above. It would appear that the placing of the temporary matting on the access routes, being land adjoining land where development is to take place pursuant to a permission, is exempt under the provisions of the Regulations. With regard to the removal of exemption under section 4(4), where an EIS is required, I note the development (works to temporary access roads) is not development of a class set out in Part 1 and 2 of Schedule 5 of the Planning and Development Regulations 2001, as amended, requiring EIA in its own right, and accordingly the matter of EIA does not apply.”
127. What is afoot (again) in this text is the following: if the pylons are to be built then, in certain cases, access from the public road to build those pylons will be required. In many cases it can be done directly from the public road but in other cases it will be necessary to secure assess by means of existing access routes, some of which will traverse over private lands. In that particular context, An Bord Pleanála thought it important to assess what the environmental effects of those access routes would be at the time of the granting or withholding of consent for the project. Again, An Bord Pleanála does not, in its impugned order, grant consent for those access routes; rather it assesses what would be the effect of same when and if the North-South Interconnector project is constructed.
128. As to the issue of works, which is also touched upon in the above-quoted text, it appears from the environmental impact statement that, in general terms, there will be three different kinds of lands that need to be traversed: first, good quality lands where no temporary tracks are required; second, relatively dry or peaty land where a defined track is required and in which case temporary rubber matting or aluminium in road panels will be used to distribute the weight evenly; and third, poor, boggy, undulating land. The environmental impact statement identifies that: the vast majority of the access routes for the building of the pylons along the North-South Interconnector route will be of the first type, i.e. land which can be traversed without any special provision being made; the remainder of the access routes are of the second type, where all that would be required would be aluminium matting or aluminium road panels; and no land has been identified as falling within the third category (where there might be excavation of topsoil or other matters required). However, all that will require to be assessed at another point; it is not something that An Bord Pleanála has decided in this case; and the Board has granted no permission for these access routes.
129. Turning then to the segment of the inspector’s report entitled “Construction”, the court notes the following observations:
“Access to construction sites, guarding locations and stringing areas will be via the public road network and the temporary use of existing private access lanes/lands which currently provide access to property and lands within the project area. The applicant is not seeking to consent for these routes but they are put forward to enable the Board to carry out its environmental impact assessment of the proposed development.”
130. Immediately following the above-quoted text, reference is made to various drawings and documents. Certain of these documents were handed in to court and the court’s attention drawn to the fact that the temporary access routes were marked thereon in yellow. These yellow lines and other purple lines were to play a prominent part in the closing stages of the hearing and will be returned to later below.
131. Under the heading “Temporary Access Routes”, the planning inspector makes the following observations:
“During the oral hearing, NEPPC [the North-East Pylon Pressure Campaign], CMAPC [the County Monaghan Anti-Pylon Committee] and many individual landowners raised concerns regarding:
The outdated aerial photography used by the applicant in the application documentation,
The absence of access to lands and the ability of the applicant to identify and assess the suitability of access routes, and
The adequacy of the proposed temporary access routes to accommodate the construction traffic associated with the development.
The concerns raised regarding the adequacy of access routes included the minor nature, inaccessibility and severe slope of some of the proposed routes, inadequate structure/width of some routes to accommodate the weight and size of construction vehicles and damage to drains, bridges and soils as a consequence of the large construction vehicles.
Other issues in respect of access routes are discussed in other sections of this report notably Legal and Procedural Issues, Human Beings – Land Use and Material Assets – Traffic.”
132. What follows next is a treatment by the planning inspector of each of these points. Under the heading “Viability and Adequacy of Access Routes”, the following text appears:
“In response to the site specific concerns raised by observers regarding the viability and adequacy of each access route the applicant (a) described the applicant’s approach to the use of access routes and (b) uploaded more recent, detailed aerial photography and Google street view to demonstrate the ability of a temporary access route to accommodate construction traffic. The following was emphasised in relation to the construction methodology:
It is not the intention of the applicant to create any new entrance onto the public road but to use existing access routes, preferably those which provide direct access to lands but if necessary, via existing accesses to farm yards.
Typically, agricultural scale equipment would be used to access construction sites (for example, using a tractor and trailer to transport bundles of steel for tower construction). However, for minor access routes or those with poor ground conditions, equipment would be scaled down to suit the nature of the access route. For example, use of a 26 tonne concrete lorry instead of [a] 32 tonne lorry, use of a 6 tonne wheeled dumper to transfer concrete from the concrete lorry to the construction site, use of a mini piling rug where necessary (applicant’s submission No 53).
Use of temporary matting or aluminium tracks for more sensitive access routes (Type 2), or if required by landowners, with the matting or aluminium tracks laid (by the transporting vehicle) at a width to suit the width of the access route e.g. less than 4m if required.
Use of temporary aluminium bridges to facilitate access over ditches etc. and to protect existing bridges (see visual image of bridge provided in submission No 26 presented to oral hearing).
Over sensitive ground, tracked, low pressure vehicles would be used to traverse sites to prevent damage to lands.
Use of tracked vehicles to traverse steep ground.
The assessment of temporary access routes allowed for bad weather conditions…Construction sites would not be accessed in storm conditions.
For the majority of cases referred to by the observers, I would accept that the applicant was able to demonstrate a viable access to each construction site, guarding location or stringing area. For example, by identifying existing gateways at the public road, existing agricultural tracks that would be followed to access tower sites and existing gaps in hedgerows to allow access between fields. Furthermore, the applicant was able to demonstrate appropriate ‘step down’ equipment (as described above) for some of the minor access routes proposed and tracked equipment for some of the steep routes proposed.”
133. There follows next a discussion of the fact that access there were alterations to certain of the access routes and consideration of those alterations. Thus, under the heading “Alterations to Access Routes”, one finds the following text:
“Notwithstanding the above, during the oral hearing the applicant brought forward a large number of changes to the proposed access routes, with 50 alterations and 23 minor deviations. These are set out in the applicant’s submissions to the oral hearing….
The proposed alterations are brought forward by the applicant in response to, or as a consequence of the following:
a. Issues raised by observers, for example, to make use of existing farm tracks/existing gaps in hedgerows, to avoid banks/fences or structures…
b. ‘Mapping discrepancies’ or ‘minor deviations’ where the mapped access point differed from the intended point…i.e. the access was incorrectly identified when moved from one scale of map to another.
The alterations brought forward under ‘a’ above would suggest that the survey of access routes was in a number of cases less than robust. Whilst some of this can be explained by a lack of access to lands for survey work, in other cases it arose due to the use of outdated aerial photography and in others because aerial photography could not pick up changes in levels e.g. banks etc. Alterations brought forward under ‘b’ were generally not substantial. Whilst these were deemed to be mapping anomalies, for an application at an advanced stage these discrepancies are remiss.
Whilst the above alterations are made late in the application process, as noted in the section on Legal/Procedural Issues, the applicant is not seeking approval for the temporary access routes. They are simply presented, in an indicative manner, to enable environmental impact assessment. Within this context, the submission of alternative routes to overcome issues raised by observers in response to the application or oral hearing, is acceptable.
Furthermore, in bringing forward the alterations to proposed access routes or alternative access routes, the applicant has ultimately demonstrated a viable access route to each tower site, guarding location or stringing area for the entire route corridor. As argued by the observers, it is possible that other issues may arise which prevent use of a proposed access route e.g. a bank or wall which a landowner has not drawn to the Board’s attention. However, in these instances, the applicant’s construction methodology and principles in respect of the use of access routes can be relied on to assess any environmental effects which may arise. It is considered therefore that the applicant has provided sufficient information in respect of access routes to enable environmental impact assessment.”
134. What one can see in all of the foregoing is the clarity that there was in the inspector’s report concerning access routes and that, decidedly, permission was not given and was not purported to be given for the access routes. Under the heading “Summary and Conclusion”, many of the points touched upon previously above were considered again in the following terms:
“The key issues arising in his section of the report [i.e. Section 5, “Planning Assessment”] relate to the ability of the applicant to predict ground conditions and assess the viability of access routes, based on the limited access to lands for survey.
It is considered that the applicant has demonstrated that the use of primarily desk top survey work (which includes LiDAR survey), supplemented by walkover survey, shallow augers and vantage point survey where possible, is consistent with the approach taken by the applicant in respect of other electricity transmission projects in the State and is sufficient to predict ground conditions for the design of foundations.
It is noted that the methodology adopted in respect of the proposed access routes (which was not subject to LiDAR survey) has resulted in alterations to access routes during the course of the oral hearing. As the applicant is not seeking approval for the proposed access routes, it is considered that this approach is acceptable. Furthermore, it is considered that the applicant has demonstrated a viable access route to each tower site, guarding location or stringing area for the entire route corridor and has set out clear principles regarding the proposed use of access routes for environmental impact assessment, should the indicative routes change.”
135. Further mention of access then appears at 287 et seq., under the headings “Disruption Arising from the Temporary Use of Access Routes” and “Adequacy of Access Routes and Damage to Lands”:
“As stated in the Construction section of this report it is the applicant’s intention to access construction sites, guarding locations and stringing areas via the public road network and the temporary use of existing private access lands/roads which currently provide access to property and lands within the project area. For the farming community, this could mean the temporary use of existing agricultural access tracks within their landholding and the movement of construction traffic through their working farm yards and the movement of vehicles across agricultural land.
I would accept in many cases that the use of such tracks, in particular if routed through a working farmyard, could impact on the day to day operation of the farm. However, whilst inconvenient, I am mindful of the applicant’s mitigation measures…which include liaison with landowners prior to construction and, as stated in the course of the oral hearing, agreements regarding the use of access lanes to enable farming practices to continue and use of an observer for HGV movements through sensitive sites (including farm yards). I would consider therefore that the shared use of access routes could be managed for the short duration of the construction phase by liaison between the parties to facilitate the on-going operation of the farm….
Many landowners draw the Board’s attention to the inadequate nature of…some of the proposed temporary routes which the applicant proposes to use, with heavy construction equipment damaging the lane or proposed route, for example surface condition, underlying drains, culverts etc. In addition, having regard to the nature of land within the study area, in particular, typically heavy soils, wet ground conditions and the steep topography of some of the tower sites…the observers argue that construction equipment would also damage agricultural land over which it traverses with long term effects.”
136. However, the inspector notes that in the “Construction” section of her report, she had concluded that, having regard to the proposed construction methodology, the applicant had demonstrated that the proposed temporary access routes would be adequate to accommodate the proposed development, the said construction methodology including: use of existing entrances from the public road; use of agricultural scale equipment or ‘stepping down’ vehicles to match the scale of the access route; means to minimise damage to access lanes/land/vulnerable soils; and proposals to engage with landowners prior to construction works so as to identify concerns and to repair or compensate for any damage caused.
137. Under the heading “Control of Contractors”, the inspector notes the mitigation elements of the outline construction environmental management plan (CEMP) and observes as follows:
“The above arrangements are acceptable and consistent with good practice, and should ensure the adherence to mitigation measures. However, I note that the outline CEMP does not refer to the appointment of agricultural liaison officers. I consider that due to the potential for impacts on the farming industry and the importance, therefore, of mitigation measures, I consider that this specific aspect of the development should be further controlled by condition (if the Board are minded to grant approval for the development) i.e. that prior to the commencement of construction the applicant shall appoint an Agricultural Liaison Officer who shall be responsible for liaison with landowners during the construction phase of the project, and thereafter, to identify issues of concern to individual landowners and to agree a detailed methodology for construction, in accordance with the measures set out in the application for approval.”
138. The mooted condition now appears as Condition 2 of the Board’s Order, requiring as follows:
“Prior to the commencement of development, an Agricultural Liaison Officer or Officers shall be appointed and shall be responsible for liaison with landowners, prior to and during the construction phase of the project, to identify and address issues of concern to individual landowners including disease protocols, if relevant, in accordance with the measures set out in the application for approval, and thereafter for the operational phase of the development.”
139. Then, under the heading “Impact of Temporary Access Routes”, the planning inspector concludes as follows:
“Having regard to the mitigation measures proposed in respect of the use of temporary access routes (as discussed in the Construction and Traffic sections of this report), it is considered that the use of temporary access tracks to construction sites, guarding locations or stringing areas will not give rise to significant environmental effects on soils, geology or hydrogeology receptors.”
140. Later in the inspector’s report, there is consideration of the “Use of Temporary Access Routes by Construction Traffic” which it does not seem necessary for the court to consider in detail herein.
(iii) Question as to Consideration of Access.
141. One point that arose at hearing is whether, why and when An Bord Pleanála would consider the issue of access at all when access (as here) was not being applied for. In this regard, the court was referred to the decision of the High Court in O’Grianna & ors v. An Bord Pleanála [2014] IEHC 632. There, Peart J. found that connection of a proposed wind farm to the national grid was an integral part of an overall development of which the construction of turbines was the first part and, in effect, that by neglecting to undertake an environmental impact assessment in respect of that integral part of the overall development, there had been project splitting which had precluded a cumulative assessment of the likely impact on the environment of the entire project presenting. In the subsequent related case of Ó Gríanna v. An Bord Pleanála (No.2) [2017] IEHC 7, An Bord Pleanála had gone on to carry out the cumulative assessment of the wind turbines, wind farm and grid connection. However, the applicants then contended that that further assessment was ineffective and/or inadequate and that any mitigation measures arising were incapable of being effected because the grid connection did not form part of what might be styled ‘the permission envelope’. That argument (which is not advanced in these proceedings) was rejected by McGovern J., whose thinking in this regard is perhaps best captured by McGovern J. in his own later decision in North Kerry Wind Turbine Awareness Group v. An Bord Pleanála & ors [2017] IEHC 12 where he observes as follows, at para.9:
[T]here is no necessity that a grid connection must be included in the planning application for the purpose of seeking consent in order for an EIA to be carried out; rather, the EIA requires information on the grid connection to enable a full EIA to be carried out and for the Board to assess the likely significant impact of the wind farm and grid connection as a whole.”
142. Here, access is not integral to the North-South Interconnector project in the same way that the grid connection was perceived by Peart J. in O’Grianna (No. 1) to be integral to the project before him. The reason access is not perceived to be integral is because, as counsel for An Bord Pleanála indicated at hearing:
“[I]n Ó Gríanna the grid connection would have to be built and would have to be there for ever and all time, whereas [here] the access is a very temporary arrangement that will occur for the purposes of construction effectively. I don’t think one could necessarily say that it has the same integral nature. Be that as it may the Board did embark on a full EIA of the access insofar as same could have environmental effects.”
143. There will, it seems to the court, likely always be some element of legitimate divergence between professionals, acting in good faith, as to the proper parameters of an environmental impact statement, at least at the outer limits of those parameters; however, as will be clear from the balance of this judgment, the court does not see that any legal deficiency or issue presents in the fact that access was considered by An Bord Pleanála in the case at hand.
(iv) Complaints about information provided.
144. In his affidavit evidence, Mr John Fitzgerald, the previously mentioned Director of Grid Development and Interconnection with EirGrid, who avers, inter alia, as follows:
“It is…patently incorrect for [the applicants’ principal witness]…to assert [in her affidavit evidence]…that none of ‘the planning documents describe the works or give details of the specification of the works to the 299 separate structures’. On the contrary, the works are extensively described in the documents which were submitted with the application to the Board and which include the Planning Report…the Public and Landowner Consultation Report…and multitudinous references in the EIS…and in the Outline Construction and Environmental Management Plan. I say that, in addition, details were also furnished at the oral hearing in response to each individual landowner who made submissions. ‘Development’ as defined in the Planning Acts will only be carried out within a corridor of 19 metres in width, save at angle towers where the width extends to 24 metres. In addition, as set out in the application documentation, there are 4 no. tower locations where, due to specific excavation requirements, this standard corridor width is exceeded. The corridor within which the development is to take place is delineated by a red line in the planning application drawings. I reiterate that no new entrances onto the public road are required to be created for the proposed development; rather existing entrances and/or direct access (for example where there is no boundary hedgerow or wall) will be used. In certain limited instances, rubber matting or aluminium road panels will be laid on the ground such as where there are poor ground conditions or sensitive land use. In these cases there will be no excavation or construction works involved. Furthermore, there will be no construction of roads….
[The same witness also]…asserts that the application amounts to an infringement of the constitutional rights of the landowners on whose behalf NEPPC advocates, none of whom have given their consent. However, for the reasons set out in the Statement of Opposition, I am advised by counsel and so believe that NEPPC does not have standing and/or a sufficient interest to advance grounds purporting to arise from alleged breaches of the interests or rights of individual landowners. Moreover, there is no requirement under the Planning Acts or Regulations that an electricity transmission development under section 182A requires the consent of the owners or occupiers of land. In addition, all landowners were extensively consulted with in advance of the making of the application. As a result whereof, and in response to such engagement as did occur, certain pylons were moved and alterations were considered to the proposed temporary access routes in respect of certain landholdings (as was described in the documentation submitted with the application for approval and at the oral hearing). Finally, and again prior to the submission of the application for approval, landowners on whose lands a pylon was to be located were furnished with indicative details of the temporary access routes in respect of those structures. Indeed, such prior consultation is noted in the Inspector’s report in the following terms..:
‘Consultation with landowners, identified through the PRAI database, took place in phases between 2011 and 2013, with letters to landowners on the 12th December 2013, advising them of the final line design….Subsequently, following a final technical review of the line design, 16 landowners were advised of changes affecting them in March 2015 (changes were made to tower locations not to the route alignment). All landowners were also advised of the proposed application in May 2015 and provided with details of the application in June 2015 (the application was lodged on the 9th June 2016)….
Moreover…the Inspector stated:
‘…it would appear to me from the documentation on file and oral hearing proceedings, that the applicant has been able to identify the vast majority of landowners along the route and has made significant efforts to engage with them.’
…The extent of landowner engagement is detailed in the Public and Landowners Consultation Report…which was before the Board…..
It must also be stressed that the access routes are merely temporary access routes required only for the limited duration of the works at any one pylon location. Also, as was noted previously, the EIS also contained a suite of numerous mitigation measures and commitments by EirGrid…which are relevant to individual landowners which involve notification to landowners, addressing the concerns of landowners in advance of any construction works or construction traffic coming onto their land and indeed after the completion of the works. Indeed, such mitigation measures and commitments have now been incorporated as part of the approval granted pursuant to Condition 1(b) attached to the decision to grant approval….
I further say that landowners and members of the public were afforded the opportunity to make submissions or observations on any issue which they deemed appropriate and, as noted in the Inspector’s report, circa 900 observers made observations, including observations made by Eileen and Maura Sheehy…and on behalf of…[NEPPC]. Thereafter, by way of its response document dated 19th October 2015, EirGrid responded to those submissions and observations. Moreover, as a result of EirGrid’s consideration of the submissions and observations made to the Board and in response to issues raised by certain landowners, certain modifications were proposed by EirGrid to a number of the temporary access routes….
[In her affidavit evidence, the same witness for the applicants]…again addresses the ‘red line’ boundary issue. As noted above the corridor within which the development is to take place is delineated by a red line in the planning application drawings. It should also be observed that, as set out in the Statement of Opposition, the requirements of the Planning Regulations in relation to planning applications are not applicable to application to an application for approval under section 182A of the 2000 Act. Nonetheless the application complies with the advice contained in the General Guidance note of the Board that applications for strategic infrastructure development should ‘generally accord’ with the requirements for a planning application set out in the Regulations….
It is also asserted by [the same witness]…that no details relating to access arrangements were included in the application. This statement is manifestly incorrect. Access arrangements are extensively described in the documentation submitted with the application for approval…as well as indicative access routes for each tower being included in figures with the application. In order to carry out the works for which approval was sought, access to the relevant lands will be required and accordingly temporary access routes were included within the application documentation so as to enable the Board to conduct an EIA of all aspects of the project, whether or not development consent was required for any aspect of the project. In this respect, a total of 584 no. temporary access routes have been identified within the EIS on 1:5000 scale mapping. Modifications to certain of those temporary access routes were presented by EirGrid as part of EirGrid’s review of temporary access routes and in some cases, in order to respond to issues raised at the oral hearing, EirGrid presented those modifications on 7 March 2016, 22nd March 2016, 19 April 2016, 26 April 2016 and 10 May 2016….
Maps were sent to the landowners affected which show the modified access route on each land holding with the revised section of the access route delineated in purple. These maps and accompanying letters were sent during the course of the oral hearing and landowners were subsequently facilitated to make submissions in respect of these alterations. Further, information on all the alterations to access routes was made publicly available during the course of the oral hearing. Under the heading ‘Access Routes’…it was stated as follows:
‘In the Board’s pre-application meeting with the applicant, the Board advised the then prospective applicant that ‘the planning application drawings should indicate access to tower locations for construction and servicing purposes at the point of the public road’.
I would also note [the Inspector says] that the Board advised the applicant…in respect of the access to construction towers that drawings ‘could be similar to those submitted in the application for the Laois-Kilkenny Reinforcement Project’. Statutory drawings for this project did not identify temporary access routes to tower sites.
It was confirmed by the applicant on numerous occasions during the oral hearing that the access roads do not form part of the planning application, but are presented in an indicative manner in order to allow environmental impact assessment of the development. In this context, it would not appear inappropriate that the access routes are omitted from the statutory drawings. The Board can only adjudicate on the application as so presented and, should it transpire at some future date that works constituting development are required to facilitate access, then EirGrid will be constrained by the provisions of the Planning Acts. There is no substantial evidence before the Board at this time that any such works are likely to be required’.
[The same witness for the applicants, in her affidavit evidence,] incorrectly asserts that there was ‘a lack of any approximate detail’ relating to access routes. It is worth emphasising that Part 2 of the oral hearing was entirely devoted to site-specific issues which included temporary access routes. It is clear from an overview of the documentation previously referred to in this Affidavit that the contention that the likely effects of the development are impossible to discern is completely mistaken. Moreover, the viability of the project is underscored by the accepted need for a second North-South interconnector, a summary of which was contained in the Planning Report referred to previously.”
145. Ms Sheehy, the second-named applicant, also made comment, in her affidavit evidence, about the access routes insofar as they affect her property. Mr Fitzgerald touches on those averments in the following way:
“At paragraph 4 of her Second Affidavit, Ms. Sheehy refers to two pylons on lands in the ownership of her sister, with whom she resides, and also says that certain planning drawings in respect of the cables are unclear and other matters. Towers 308 and 309 straddle the hedgerow of lands in the ownership of Eileen Sheehy, the sister of Maura Sheehy, with whom she resides….I say and believe that Tower 308 is located approximately 123 metres from the residence of Ms. Sheehy whilst Tower 309 is located approximately 392 metres away. Towers 306 and 307, which are not located on lands belonging to Ms. Sheehy but on adjacent lands, are located at distances of 339 metres and 149 metres respectively from the residence of Ms. Sheehy. Whilst the assertions made by Ms. Sheehy in relation to the planning drawings go to the merits of the application for substantive judicial review as opposed to addressing the issue of the discharge, Ms. Sheehy’s contentions in this regard are not accepted by EirGrid.”
146. This is picked up by Mr Fitzgerald, at a later point in his affidavit evidence when he avers as follows:
“Insofar as Ms. Sheehy says, at paragraph 4 of her Affidavit, that the application was made without her consent or that of her sister, as noted earlier in this Affidavit, there is no legal requirement for such consent. Furthermore, where a tower or pylon is to be located on a person’s lands, the landowner will receive compensation plus an annual interference payment per tower to ensure the landowner is not at a financial loss. In addition, EirGrid has recently established a proximity payment scheme whereby payments are to be made to homeowners within 200 metres or closer to a new line of towers or a new transmission system, and this scheme will apply in respect of the residence shared by Ms. Sheehy….
At paragraph 5 of the Affidavit under reply, Ms. Sheehy states that the proposed development will involve a conductor ‘within eleven metres of the curtilage’ of residence. I say the lands owned by Ms. Sheehy’s sister and the distance from the nearest point of the overhead line to her dwelling were identified [he then gives the map reference]…[on a map] included…with the documentation submitted to the Board. As appears therefrom, the distance provided in the drawing was 58.4 metres from the nearest point of the residence to the outer conductor and 67.9 metres to the centre line. The Line Route Map…also shows the configuration of the conductors which is clearly explained in the drawing legend information regarding the proposed alterations of the existing line which is located approximately 60 metres from Ms. Sheehy’s residence.…
In her affidavit, at paragraphs 7 and 8, Ms. Sheehy refers to a number of environmental impacts arising from the proposed development. I am advised and so believe that these are planning matters which were extensively addressed in the documentation submitted to the Board and at the oral hearing convened by the Board and extensively considered in the Inspector’s report. I am further advised that it is not appropriate for the Applicants to seek to re-argue such issues in these proceedings, which do not institute an appeal on the merits of the Board’s decision….
At paragraph 9 of the Affidavit under reply, it is asserted that Ms. Sheehy and her sister are in an uncertain position of not knowing how access to lands will be achieved. However, this statement is incorrect. [Mr Fitzgerald then exhibits certain correspondence sent to Ms Sheehy and continues as per the below]….
In relation to the content of paragraph 10 of [Ms]…Sheehy, wherein issues are raised in relation to matters such as long-term effects of pylons on machinery, dangers of electrocution and potential for pollution during construction such as through spillages. I say that all of these matters were addressed in very considerable detail in the documentation submitted to the Board on the application and, in particular, in the EIS (and the Outline Construction and Environmental Management Plan appended thereto) and indeed these issues were discussed at length at the oral hearing. As noted earlier, the EIS contains a schedule of mitigation measures and commitments which addresses many of these concerns and these mitigation measures and commitments have been incorporated into the grant of approval by way of Condition 1(b)….Accordingly, Ms. Sheehy is incorrect in her assertion that the conditions of the Board give EirGrid a ‘charter of flexibility permitted by agreement to do as they like’. Moreover, given that these matters have been set out in the application documentation, which has been publicly available since June 2015, and that there was a ten-week period in which parties could (and did) make submissions and observations on those matters, followed by a 35-day oral hearing at which these issues were considered, she is incorrect in her reference to affected parties being excluded from the terms of the decision made by the Board to grant approval. Finally, EirGrid does not an accept that a sterile corridor is created by the positioning of the alignment, whether in the manner suggested by Ms.Sheehy or at all….
At paragraph 11, Ms. Sheehy refers to the previous application for approval which was withdrawal in 2010. However, as set out in detail in an earlier section of this affidavit, subsequent to the withdrawal of the application, EirGrid engaged in a detailed re-evaluation of the project, which included three round of public and landowner consultation….
The characterisation of the oral hearing set out in paragraph 12 of Ms. Sheehy’s Affidavit is inaccurate. Insofar as there were modifications to the proposed temporary access routes during the oral hearing, it is important to emphasise again that information on the proposed access routes was included with the application documentation as to enable the Board to conduct the required assessment of all aspects of the project, regardless of whether or not development consent is required for any particular aspect of the project. The proposed access routes do not form part of the development. Therefore, no part of the development was changed in any way in the course of the oral hearing. A total of 584 no. access routes were identified within the EIS. Following submissions to the Board in the period June to August 2015, in relation to temporary access routes, EirGrid carried out a review of certain access routes, and an alternative access route was identified in respect of 6 no. locations, which alternative access routes were identified on Day 1 of the oral hearing (7 March 2016). Subsequently, following the submission of a number of observations to the Board in relation to temporary access mutes, EirGrid carried out a further review of all proposed access routes described within the EIS and, as a result, a number of mapping anomalies were identified. An evaluation was conducted of these anomalies and 19 no. redrawn access routes were presented to the oral hearing on 22 March 2016. As the oral hearing progressed, EirGrid carefully considered the submissions made by landowners and other parties to the oral hearing, and continued to keep the issue of access routes under review. EirGrid considered all potential deviations or mapping discrepancies, whether those issues arose from the EIS access route mapping or the larger-scale landowner mapping. The review process revisited aerial imagery, landowner access mapping and EIS figures with follow-up vantage surveys, as necessary. In this context, EirGrid brought a number of access routes to the attention of the attendees at the hearing in order to enable the Board to assess the modifications proposed to those access routes and those modifications were brought to the attention of affected landowners and were all assessed. Furthermore, and contrary to a statement at paragraph 13 of the Affidavit of Maura Sheehy, none of these modifications involved the creation of new entrances or accesses….
The suggestion made at paragraph 14 of the Affidavit under reply that the development has not been properly been properly assessed because of the limitation on access of lands…is completely unfounded and rejected. The Board’s Inspector addressed this issue in the following terms:
‘The majority of the route is situated on lands classified as improved agricultural grassland i.e. with a uniform land cover. It has been selected to avoid sensitive receptors and to ensure that the siting of the towers etc. minimises potential impacts. The appraisal of the existing environment was not limited to desk top studies as contended by the observers. I would point out to the Board that EirGrid were granted access to c. 25% of the lands and were in a position to conduct visual assessment of another c. 38%, resulting in an assessment of c. 63% in total of the lands along the alignment. The appraisal was assisted by the use of LiDAR (recognised to have a high degree of accuracy), high resolution aerial photography, the use of third party published data sets/on line mapping, vantage point surveys, extended ecological surveys etc., allowing a comprehensive and detailed evaluation of existing environmental conditions to be established.
Whilst many of the observers query the efficacy of such measures, and I accept that it was not possible, for example, to obtain the level of detail required to identify specific species types in woodland in the Brittas estate, EirGrid were able to demonstrate the accuracy of the information provided during the various modules of the oral hearing. The Board will note from the various sections of this report the level of detail obtained and presented on the existing environment….Having reviewed the EIS, NIS and all the supporting documentation to the application, the observers’ submissions, applicant’s response and having considered the matters raised at the oral hearing, I am satisfied that the information is sufficiently detailed and comprehensive to allow the Board to carry out the robust and accurate assessment of the development for the purposes of EIA and EIS.”
147. It is useful at this point to turn to the environmental impact statement and the point at which it sets out an explanation of the locations and terrain relevant to the access routes, stating, inter alia, as follows:
“Temporary access routes capable of accommodating construction plant, construction materials and personnel are required for the construction of each tower, installation of the conductor and the setting up of guarding locations….
There are three locations along the proposed route where vehicular access is typically required for construction of OHL:
Access to tower sites….
Access to stringing locations….
Access to guarding locations….
Access routes to tower sites enable the deployment of excavators or piling rigs together with foundation materials…and for the removal of excess spoil. For tower erection, approximately 10 tonnes for an intermediate tower to 32.5 tonnes for an angle tower of steelwork will be delivered to each tower location site and erected using a gin/derrick pole….
As noted previously, appropriate route and site selection is the most effective method of avoiding or minimising the environmental effects of development….
The first part of the identification process is to develop some general principles to guide the decisions about identifying potentially suitable temporary access routes to construct the proposed development.”
148. The general guidelines are identified and the text of the environmental impact statement then continues as follows:
“Temporary access tracks tend only to be laid where there may be poor ground conditions, a sensitive receptor or sensitive land use….While the terrain of the proposed development is generally undulating with favourable ground conditions likely to be encountered for a vast majority of the proposed route, construction techniques and machinery may vary to accommodate localised ground conditions along specific parts of the route and/or as a result of weather conditions during the construction period. For the purposes of this appraisal, all temporary access routes have been assessed based on very wet weather conditions, expansive construction techniques with heavy machinery/equipment.
Details of the alternative types of temporary access route for wet conditions relative to land use, condition and having regard to specific environmental conditions are set out below. It is noted that these are not mutually exclusive in all cases and that a particular temporary access route may incorporate different track types along its length.
Type 1.
Good quality land…: In general, the laying of temporary tracks is not required. Using tracked machinery (low ground pressure vehicles where possible) usually means that access to tower sites can be achieved with relative ease using existing roadways where available and the crossing of fields.
Type 2
Relatively dry/peat land or very sensitive areas: Where a defined track is required, temporary rubber matting or aluminium road panels would be used to distribute the weight evenly. Low ground pressure vehicles would also be used where possible.
Type 3
Very poor, soft, wet boggy and/or undulating land with unfavourable ground conditions: In such conditions roads with stone or wooden sleepers may need to be constructed. This involves the excavation of the topsoil and storage of this to one side of the track. A geotextile reinforcement would be placed on the subsoil surface and stone placed on top and compacted to form the track….
Based on the assessment criteria…the vast majority of access routes identified…will be Type 1. The access routes or part of the routes to the following tower locations and associated ancillary works have been identified as Type 2 which potentially require rubber matting or aluminium tracks….Type 3 roads constructed with stone or wooden sleepers will not be required at any of the proposed tower locations, stringing areas or guarding locations, stringing areas or guarding locations.”
149. Over the next number of pages of the environmental impact statement there follows a detailed appraisal of the methodology that will be used.
150. So built into the environmental impact statement, all of which has been assessed, is a very considerable amount of detail which in turn is supplemented by the draft construction management plan, which was also submitted as part of the environmental impact statement. The sheer level of information that was provided and addressed in the course of the development consent process, coupled with the opportunity that was given to anybody who wished so to do, to make submissions in relation to the access routes means that the applicants’ contention as to any information deficiency in this regard must fail: the information was there and a proper assessment was duly carried out.
(v) The Agricultural Liaison Officer/s.
151. Condition 2 contained in the Board Order provides as follows:
“Prior to the commencement of development, an Agricultural Liaison Officer or Officers shall be appointed and shall be responsible for liaison with landowners, prior to and during the construction phase of the project, to identify and address issues of concern to individual landowners including disease protocols, if relevant, in accordance with the measures set out in the application for approval, and thereafter for the operational phase of the development.
Reason: To ensure the satisfactory completion and operation of the development in the context of agricultural activities.”
152. To the extent that there is any suggestion that the creation of the Agricultural Liaison Officer is somehow objectionable, this is not accepted by the court. The above-quoted condition was suggested by the Inspector and adopted by An Bord Pleanála, not having been proposed by the developer. It does no more than to vest one or more officers with the function of liaising with the landowners, identifying their issues of concerns, and addressing them. It creates a conduit for ongoing engagement. It is not obvious how this could conceivably prejudice anybody, and in point of fact it does not prejudice anybody: rather than being an exclusion from dialogue, the requirement as to the establishment of the role of the said Officer/s involves the landowners in a continuing dialogue concerning matters of importance to them.
(vi) Boland et al.
153. It seems to the court that the conditions as to access come within what were referred to at hearing as ‘the Boland criteria’ as they (the conditions) pertain to matters of detail in the context of the development as a whole. It is as well to pause at this point and deal briefly with the principal case-law to which the court was referred in this regard, being the decisions in Keleghan and Ors v. Corby and Dublin Corporation (1976) 110 I.L.T.R. 144, Houlihan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993) and Boland v. An Bord Pleanála [1996] 3 I.R. 435.
154. At issue in Keleghan was an application by the Holy Faith Sisters for the erection of three fabricated classrooms at St Brigid’s Secondary School in Killester. The application included plans for access. Those plans for access were not approved but when the permission was granted details were required to be resubmitted for agreement. The case focused on the adequacy of the notice of intention to apply for planning permission (which had made no mention that the issue of access was going to be part of the application). So the ratio of the case is not at all on point when one comes to identifying the relevance of Keleghan to the within application. However, the court’s attention has been drawn to the following obiter observation of McMahon J. in the next-to-penultimate paragraph of his judgment:
“I think it is better to reserve any decision on the third point made by Mr. Gaffney, namely assuming that the application had in fact been made as it was constructed by the planning authority, to include access or change of user of the land….Whether permission has been validly granted by imposing a condition that details of the access be submitted for agreement, I can see serious difficulties about that from the point of view of planning law. A planning authority is entitled to grant permission, subject to conditions requiring work to be done, but when that is done the planning permission must specify the work to be done, and any person, who thinks he is prejudiced by it, can appeal because he has before him details of the work to be done, but in this case what was granted was permission for access subject to the details to be submitted for agreement. The public would have no knowledge what details were in fact being agreed and no way of appealing against the details agreed between the applicants and the planning authority.”
155. The critical difference, and it is a very significant difference, between the facts at play in Keleghan and those here presenting, is that, in Keleghan, permission was granted for the relevant access, subject to agreement with the planning authority; here, by contrast, permission for access has neither been sought not granted. A second difference is that in Keleghan the public were to have no knowledge of what details were being agreed; here there is transparency as to what is to be agreed – and what is to be agreed is more detail than substance. So in truth when one gets down to the detail of Keleghan, it is, on its facts, far removed from the circumstances at play in the within application.
156. In Houlihan, Kerry County Council granted permission for the erection of 22 holiday homes, a reception block and the diversion of a road close by Ballyferriter. Mr. Houlihan objected to the development and an oral hearing was conducted into the application by An Bord Pleanála who granted permission for the development subject to nine conditions. Mr. Houlihan sought and obtained leave to apply for an order of certiorari quashing the said decision on a number of grounds. The ground relevant to the within proceedings was that the conditions attaching to the issue of the planning permission by An Bord Pleanála contained so many matters which were to be agreed between the developer and the Council that they could result in a totally different development from that originally sought and that by leaving so many matters to be agreed between the developer and the Council the statutory right of appeal from such decisions had been removed. In the course of his judgment, Murphy J. observes, at 5-7.
‘[T]he conditions attached to the permission granted by the Board do call for discussion and agreement between the planning authority and the developer on many issues….[C]ondition (6) requires that a public access road along the western boundary of the site should be constructed to the requirements of the planning authority. There are, therefore, approximately twelve matters on which the agreement or approval of the planning authority is required before one can say with complete certainty what is entailed in the conditions annexed to the permission granted by the Board. Notwithstanding the number of matters on which agreement is outstanding and the subject matter thereof, counsel on behalf of the Board contends that these are essentially technical matters which in the interests of all parties, that is to say, the developer, the planning authority and the local residents, can and should be delegated by the Board to the local authority and their resolution postponed to a later date. Undoubtedly some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise. The issue then is whether the nature or quantity of the matters left undefined is such as to render the permission granted invalid. In my view – and as I understand it neither party would disagree – the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree. I have little difficulty in concluding that the Board was justified in stipulating that the new access road should be completed in accordance with the requirements of the planning authority. Again I take the view, though in this case with a lesser degree of confidence, that the matters stipulated in condition (4) [which was not concerned with access] are essentially technical matters or matters of detail, decisions on which could be left to the planning authority and developer without invalidating the statutory decision of the Board. However, it does seem to me that the condition in relation to the effluent discharge mains deals with a matter which is rather more serious and delegates a discretion which is very wide in its scope.’”
157. So the condition as to access, at least on the facts before him in Houlihan, was a condition that Murphy J. appears more wholeheartedly to have embraced than various other conditions that were before him.
158. In Boland, application had been made for the extension and refurbishment of the ferry terminal at Dún Laoghaire. The permission was granted with an array of matters being left for agreement with the planning authority. These included such matters as plans for the management of ferry traffic, arrangements for monitoring post-development traffic flows, the new design plans for traffic and egress arrangements, and plans for the carrying out of certain pedestrian works. Mr Boland applied for an order of certiorari in respect of the decision of An Bord Pleanála on the ground that the conditions attached to it constituted an improper abdication of its functions to the local planning authority, thus depriving interested parties of an opportunity to be heard. He was unsuccessful in both the High Court and the Supreme Court, Hamilton J. observing, inter alia, as follows, at 466-7:
“In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the Board is entitled to have regard to:
(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require re-design in the light of the practical experience;
(c) the impracticability of imposing detailed conditions having regard to the nature of the development;
(d) the functions and responsibilities of the planning authority;
(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;
(f) whether the enforcement of such conditions require monitoring or supervision.”
159. In the application now before this Court, the “limited degree of flexibility”, to borrow from the phraseology of Hamilton C.J. (itself borrowing from the phraseology of Keane J. in the court below) is very limited indeed, because there is already extant here the draft construction and environmental management plan, waste management plan and traffic management plan, all of which, together with the mitigation measures, have to be adhered to in any event. Moreover, the matters to be left over for agreement under Condition 3(c) fall properly to be construed as matters of detail, including, it will be recalled, “(i) arrangements for stepping down vehicle size, (ii) arrangements for off-loading of materials, (iii) short-term road closures, (iv) the phasing of construction works which are accessed by single lane carriageways, and (v)…arrangements for the transfer and management of concrete, including wash out facilities.” These are clearly but matters of detail in the context of a major development and thus come within the embrace of item (a) in the above-quoted segment of the judgment of Keane J. in Boland (with items (b) and (c) being variations on the theme of detail) and are also justifiable by reference to items (d), (e) and (f).
160. In the course of argument, the court was also referred to the decisions in Sweetman v. An Bord Pleanála [2016] IEHC 277, Dunnes Stores v. An Bord Pleanála [2016] IEHC 226, and People over Wind v. An Bord Pleanála [2015] IEHC 271, [2015] IECA 272, the court’s attention being drawn to how the imposition of conditions was treated in those cases as well as to such comments as were made therein regarding the limited role of the court in a judicial review application. The court notes, and has had regard to, those decisions but does not consider that it is necessary to engage in a detailed consideration of them; they merely buttress the court in its assessment of the applicable law, as outlined above.
(vii) Some Further Observations as to Access.
161. It seems to the court that the following further observations can be stated as regards the issue of access, some of which have been touched upon above.
162. First, as to the issue of how one can have a condition in relation to access if access is not sought, it seems to the court that the real question is not a ‘how’ but a ‘why’, i.e. ‘why is there a condition for access when access is not sought?’ The reason ‘why’ is because (i) as part of the EIA, An Bord Pleanála looked at access and (ii) for the reasons specified at the end of condition 3 (“In the interest of protecting the amenities of the area, sustainable waste management, preventing pollution of surface waters, protection of existing habitats, and traffic safety”), it has seen fit to impose conditions in relation to access – and those conditions are clearly relevant to proper planning and sustainable development. So access is neither sought nor granted; however, the manner in which access can be exercised, if it is obtained, has been restricted, even if (as may prove to be the case) that access transpires to be exempted development. As to the question whether, assuming that one is not dealing with exempted development, the ‘right’ public have been afforded the opportunity to participate in the planning process (or more exactly whether the public as they exist at any one time have been offered the opportunity to participate at the right time – public views and objections being varying and inconstant) that is something which, it seems to the court, is met through the due application of the full rigours of the applicable approval/permission process at the time when and if access does fall to be sought.
163. Second, the applicants complain that they (and presumably the rest of the public) have been excluded from the process leading to, or emanating from, condition 3(c). But the fact of any (if any) such exclusion is only relevant if it has a particular legal context. Here, the public were entitled to and did participate in the environmental impact assessment process, the public was extensively consulted in relation to the proposed access arrangements (with two rounds of public consultations, even before the application was lodged, and a split oral hearing, the second part of which was devoted to a seriatim examination of each access route and each access point. Some of the amendments and objections and difficulties of the land owners were taken into account during that process and changes made). When matters are viewed in that context it seems to the court that one is far removed from the facts that presented in Holohan & ors v. An Bord Pleanála [2017] IEHC 268, a case on which the applicants placed some reliance and which is considered below, with the contention as to exclusion becoming even weaker (to the extent that it has any strength at all, and the court respectfully does not consider that it does) when one recalls that, pursuant to condition 2, as touched upon previously above, one or more agricultural liaison officers are to be appointed who “shall be responsible for liaison with landowners, prior to and during the construction phase of the project, to identify and address issues of concern to individual landowners”, which concerns will doubtless include issues as to access.
164. Third, it will be recalled that Condition 3(c) of the Board Order provides as follows:
“Prior to the commencement of the development, a construction and environmental management plan, a traffic management plan and a waste management plan shall be submitted to, and agreed in writing with, the relevant planning authority following consultations with [named] relevant statutory agencies….This plan shall incorporate the mitigation measures indicated in the Environmental Impact Statement and shall provide details of the intended construction practice for the proposed development, including:
…(c) site specific arrangements for each temporary access route to include, where necessary:
(i) arrangements for stepping down vehicle size,
(ii) arrangements for off-loading of materials,
(iii) short-term road closures,
(iv) the phasing of construction works which are accessed by single lane carriageways, and
(v) the arrangements for the transfer and management of concrete, including wash out facilities.”
165. A couple of observations might now be made regarding this condition:
(1) one of the points made by the applicants is that Condition 3(c) is concerned with work/s and development. The court respectfully disagrees. There is no application for such permission, no determination that it is required, and EirGrid holds fast to the position that it is not (the issue does not fall to be resolved by this Court at this time).
(2) Condition 3(c) must be viewed in the light of Condition 1(b) which, it will be recalled, provides as follows:
“All environmental mitigation measures set out in the Environmental Impact Statement, Natura impact statement, and associated documentation submitted by the undertaker with the application and the further information received by An Bord Pleanála by way of the ‘Response to the Issues Raised’… shall be implemented in full.”
The court, in the general observations made at the outset of the within judgment, has noted the extent of the EIS that was a feature of EirGrid’s application. The extensiveness and thoroughness of the EIS has, inter alia, the following consequence: when the applicants make the argument that Condition 3(c) goes beyond more detail, it is incumbent on them to establish that this is so. As will be clear from those parts of the EIS that the court has considered in its judgment (and these are just a part of a greater mass of most comprehensive text) it is prescriptive, it is detailed, and it has all been assessed in a process into which the public had a right of participation. In such a context it does not suffice for the applicants merely to say ‘This goes beyond Boland-style detail’. They must show exactly what are the substantive issues that these conditions leave open and, with respect, they have failed to show so. If one looks at items (i) to (v) these seem the almost pernickety details that would classically be left over in the manner in which they have been left over. And if one looks to the types of plan to which reference is made, EirGrid put before An Bord Pleanála detailed draft construction and environmental management, traffic management, and waste management plans which specify various mitigation measures to be taken. These remain as draft plans at this time (apparently because it was not possible to finalise them in advance of the permission) but those protections, as the court understands matters, will be the minimum level of protection going forward.
166. Fourth, the applicants contend that one cannot ‘leave over’ assessment of environmental effects and that this condition breaches that requirement. First, An Bord Pleanála has expressly determined that it has sufficient information to assess the environmental effects of the project. Second, although sufficiency of such information is a matter for An Bord Pleanála, the court notes again that EirGrid put before An Bord Pleanála detailed draft construction and environmental management, traffic management, and waste management plans which specify various mitigation measures to be taken. So, just by way of example, one finds the following in the inspector’s report (under the heading “Construction Environmental Management Plan” or ‘CEMP’):
“Dr Tierney (NPWS) [National Parks and Wildlife Service] expressed concerns regarding the final CEMP and its preparation by a contractor which may include the resolution of technical details and matters that could influence the nature and significance of the effects of the proposed development on the environment. It was made clear by EirGrid that all elements of the outline CEMP will be included in the final CEMP. It sets the minimum standards that must be achieved to ensure the protection of the receiving environment. Any additional measures that may be incorporated in the final CEMP as a result of conditions will provide at least the same or a better standard of protection. I accept that this is standard practice in construction projects and does not mean that an inferior level of protection will be provided.”
167. So in relation to flora and fauna and then seriatim in relation to any other consideration of this issue under any of the other environmental criteria, it is emphasised in each case that the draft plans will be subsumed into the final plans and will provide minimum levels of protection which can be enhanced but will not be diminished.
XIV. Alternatives
(i) Overview.
168. The applicants contend that An Bord Pleanála has failed to consider alternatives to the proposed development. It will be recalled that at para. 135 of the applicants’ written submissions, the deficiencies contended to arise in this regard are as follows:
“135. The First Named Respondent erred in failing to assess the alternatives to the proposed development, including: (i) failing to properly and comprehensively consider the undergrounding option or partial undergrounding option of the proposed development; (ii) erred in determining that the overhead power line was more appropriate and cost effective when compared to other alternatives, including undergrounding; (iii) had no and/or insufficient regard to the rights of affected landowners and the potential health hazards associated with the overhead lines when assessing alternatives to the project; (iv) failed to ensure that a proper cost/benefit analysis of the proposed development was completed; (v) had no or insufficient regard to alternative interconnectors and PCIs, specifically the First Named Respondent had no regard to the potential alternative interconnector between Ireland and the United Kingdom of Great Britain (including Northern Ireland) namely the Interconnection between Srananagh (IE) and Turleenan (UK).”
(ii) The Consideration of Alternatives Undertaken.
a. Route Alternatives.
169. The EIS sets out the rationale for the various route alternatives considered for the proposed development, how these were evaluated against various environmental constraints and how the preferred route was justified. The inspector, in his report, concludes, inter alia, that “Whilst it is correct to say that the study area and the route corridor remain largely similar to the previous proposal…it is incorrect to suggest that this was accepted as a fait accompli.” The inspector then continues:
“The review process took place in a series of steps or phases between 2010-2012 resulting in the publication of two reports both of which were subject to public consultation. The first phase culminated in the publication of the Preliminary Re-evaluation Report in May 2011….It consisted of a comprehensive re-evaluation of the previous application, the EIS and supporting documentation, written and oral submissions made to the Board in connection with the previous application and any new information that emerged since its withdrawal.
It re-affirmed the strategic need for the development and re-evaluated the study area and the rationale for same. One of the principal considerations determining the original study area was the need to connect to the most robust parts of the transmission systems north and south of the border.”
170. The inspector goes on to state that the Woodland substation in Meath and the planned new substation in County Tyrone were identified as the two most robust points, then continues:
“The review process revisited the principal assumptions and recommendations of the various studies previously prepared and concluded that no new environmental consideration or other relevant material had arisen in respect of the original evaluation process….Having established that the previously identified study area remained the most appropriate for the routing of the proposed interconnector, previously identified key environmental and other constraints were re-evaluated. New information was also considered including changes in relation to constraints….Baseline data was updated and while minor variations between current and previous findings were identified…it was established that no new constraints information arose….Once key environmental and other constraints were identified, the next stage in the process was the re-evaluation of the previously identified route corridor.”
171. Given that the two book-ends of the proposed development had been identified, the corridor between them was the next stage in the process. Thus, the inspector continues:
“Addendum reports were prepared to compliment the earlier Route Constraint Reports, providing further analysis of the impacts of each route corridor on the key constraints. It was established that the updated constraints did not have material implications for the locations of the previously identified route corridor options. EirGrid were also satisfied that the process did not result in the emergence of any previously unidentified route corridor of equal or greater merit than those already identified in respect of the previous application….Each corridor option was then evaluated against the identified constraints. The evaluation criteria were reviewed and updated….This route option was evaluated as having the lowest potential for creating long term adverse significant impacts which cannot be mitigated….
Phase I of the re-evaluation process concluded with the identification of a preliminary line route for the proposed interconnector within a preferred route corridor, which was considered a viable and environmentally acceptable preliminary indicative line route. The Preliminary Re-evaluation Report which resulted from the process was then subject to public consultation.”
172. The second phase of the review process resulted in the publication by EirGrid, in April 2013, of the “North-South 400kV Interconnection Development, Final Re-evaluation Report”, which report, like the preliminary report was considered by An Bord Pleanála, as before the court. The inspector continues:
“It [the report] took into consideration the feedback received through the consultation process associated with the Preliminary Re-evaluation report and important documents published in the interim, including the Independent Expert Commission Report….The robustness of the study area was confirmed, following a re-evaluation of the study areas, which included an additional area east of Navan and a straight line option at the request of the Board. No new significant environmental or other constraints were identified and it was concluded that the updated constraints did not have material implications for the previously identified route corridor options. No additional and/or previously unidentified route corridor emerged from the re-evaluation process that was considered of equal or greater merit to those identified route corridors that were considered in respect of the previous application….Corridor Option A in the CMSA [Cavan Monaghan Study Area] and Route Corridor 3B in the MSA [Meath Study Area] emerged as the overall preferred route corridor within which to route the proposed development. This route option was evaluated as having the lowest potential for creating long-term adverse significant impacts which could not be mitigated….Whilst the preferred route…is broadly similar to the 2009 line route, it is not identical. It incorporates localised modifications….Contrary to the suggestion made by the observers…EirGrid did not seek to rely solely on the information presented in the previous application….[I]t conducted a comprehensive re-evaluation….Much of the data contained in the EIS and associated studies remained relevant to the process of identifying and assessing the main effects….This highly iterative process ensured that the public and other stakeholders had the opportunity to engage and feed into this process….I accept that the re-evaluation process conducted by EirGrid is clear, unambiguous and comprehensive.”
173. As to the alleged failure to consider other route options, the inspector observes, inter alia, as follows:
“It is clear that the consideration and evaluation of the various route options is an involved process, which has taken place over a considerable period of time. It is too simplistic to assume that the line can be routed in a particular way, or, away from a particular area, without having due regard to the complexities that surround the evaluation process. The merit of each of the individual route corridors has been assessed in the EIS against a plethora of environmental, technical and other constraints. It is clear that there are environmental constraints associated with each option and the aim of the evaluation process is to find the most appropriate balance (or ‘best fit’) between the various technical, environmental and other evaluation criteria. The geographic positioning of the development is influenced by the strategic need…to connect into robust points on both transmission systems and the desire to seek the shortest environmentally and acceptable route between those connection points. The route alignment put forward for this application has been assessed against viable alternatives and found to be the most acceptable solution.”
174. There has been suggestion by the applicants that not enough consideration was given by EirGrid to an Interconnector route that would go via Srananagh, County Sligo to Turleenan, County Tyrone, instead of by way of the intended Woodland-Turleenan route. This criticism appears to derive from the fact that both Commission Delegated Regulation (EU) No. 1391/2013 and the 2015 Regulation refer, when it comes to clusters of electricity projects on the island of Ireland refer to both the Srananagh-Turleenan and the Woodland-Turleenan routes. However, any concern in this regard appears to the court to have been allayed by Mr John Fitzgerald, the previously mentioned Director of Grid Development and Interconnection with EirGrid who avers, inter alia, as follows in his affidavit evidence:
“In respect of the other project referenced [in the European Union legislation]… namely Srananagh (IE) and Turleenan (UK), I say that the Srananagh/Turleenan (via South Donegal) project (also known as RIDP 1) was identified following a set of studies carried out by EirGrid and NIE to identify solutions to facilitate a connection of existing levels of renewable generation in Co. Donegal and the north and northwest of Northern Ireland. PCI status was sought because the project was cross-border in nature and had the potential to bring benefits to both jurisdictions. However, I say that whilst EirGrid was a promoter for the inclusion of Srananagh-Turleenan in the PCI List, that project was never promoted as an alternative to Turleenan-Woodland high capacity inter-connector….
At all events Chapter 5 of Volume 3B of the EIS considered Route alternatives and set out at Section 5.2.1.1 Broad Study Area Alternatives for a Second Interconnector, including Option 3: Western Study Area, based on a new 275kV transmission line between substations at Coolkeeragh, Co. Derry, and the then planned 220kV station at Srananagh, County Sligo. However, as set out in Volume 3B, it was found that the Srananagh node would not facilitate the level of transfer capacity required due to overloads on neighbouring 110kV circuits. Moreover, there were also transient stability limitations associated with the western option. Accordingly, having considered an interconnector interlinking the Northern Ireland transmission system with the EirGrid transmission system at Srananagh, it was concluded that any option terminating in Srananagh would not provide the required transfer capacity to Northern Ireland, including a line from Turleenan. It should be noted as the Srananagh 220kV node has only one high-capacity link (to Flagford 220kV station), issues of the same magnitude would arise with either a line terminating (there) or directly connected into Flagford station…..
The development of the Renewable Integration Development Project is only possible once the North South Interconnector is completed. This is because the North South Interconnector creates a duplicate high-capacity interconnector to the existing interconnector…with the necessary capabilities to commit the Irish and Northern Irish networks to securely connect and benefit from each other. The RIPD 1 does not provide these capabilities and is not alternative to the North South Interconnector.…
The need for the RIPD 1 project is to enable the export of renewable power from Donegal and west of north western Northern Ireland to other parts of the island. The RIPD 1 project was envisaged to achieve this with three elements. A new extra-high capacity circuit from Donegal…and another from western Northern Ireland back to the nearest extra-high capacity network stations in the Irish and Northern Irish networks (Srananagh and Turleenan) formed the first two elements. The third element is a circuit (at 275kV) that links the terminating stations in Donegal and Western Northern Ireland…across the border. This third element is required to provide an alternative path for the renewable power to be exported following the loss of either of the first two elements….
Subsequently, when addressing SEA-related issues in her report, the Inspector stated:
‘It is contended in the submissions that the statutory process is flawed due to the failure to carry out SEA level on the application and various plans and programmes which set out the framework for the project. Reference is made in the submissions to the Renewable Energy Directive [and]…the National Renewable Energy Action Plan. During the oral hearing Mr. Hillis also referred to the regional Integrated Development Plan’….
As outlined above, it is clear that the ‘need’ identified cannot not be realise from the RIDP 1 (Srananagh-Turleenan) project. In short, a circuit developed in a western study area will not provide the necessary capacity to address the identified (and accepted) need. The North- South interconnector project (Woodland – Turleenan) on its own is sufficient to address this need or ‘bottleneck’. The RIPD project will ultimately provide additional capacity in counties Donegal and western counties of Northern Ireland to connect generation into the transmission network – a need which the North South interconnector project cannot achieve. Accordingly, as the needs addressed by the two projects do not ‘address the same bottleneck’ and cannot be competing projects, and the North South interconnector is not dependent on RIPD, the two projects are not placed in either ‘a cluster of interdependent PCIs’ or ‘a cluster of competing PCIs’….
Moreover, as the level of generation in Donegal and western counties of Northern Ireland does create an ‘uncertainty around the extent of the bottleneck’, in this instance, the market…will ultimately determine if RIDP1 is required. In which case, both projects, and not just the second North South Interconnector project may progress.”
175. What is clear from the foregoing is that in no sense was (or indeed is) the Srananagh-Turleenan route an alternative to the Woodland-Turleenan route. That would, with respect, be like saying that the M50 motorway is an alternative to the M6 motorway; of course, they are both motorways, but they are not alternatives to each other in terms of what they can actually achieve. That simple point being so, i.e. the fact that the two interconnector routes are not alternatives, the decision of the High Court in Holohan, when it comes to alternatives, and a decision on which the applicants have sought to place some reliance, is, with respect, of no relevance.
b. Consideration of Technology, including Undergrounding.
176. Any fair review of the abundant material which is before the court and was before the Inspector discloses that EirGrid gave exhaustive consideration to the feasibility of undergrounding in a number of different guises and respects. Consideration was given to the option of an entire AC undergrounded interconnector. That presented acute technical issues. It considered a complete DC option which would have involved interposing into this part of the grid, which is AC, a DC component of significant length. It considered a partial undergrounding solution – a specific report on this question was requested by An Bord Pleanála and provided. It looked at undergrounding along the local road network, along the M3, and along a disused railway line. All of these alternatives were considered by EirGrid not to be suitable on a variety of different grounds, some concerning cost, others being more technical issues. The AC connector was not a feasible alternative because it would not be compatible with good utility practice. Undergrounding using the DC cable was not in accordance with good utility practice but was also costly. And when it came to partial undergrounding solution there were a range of environmental issues presenting. These issues, each of them the subject of comment in varying degrees by observers in the course of the written submissions were addressed by EirGrid in its responses and agitated at the oral hearing also. A useful summary of the issues presenting this regard is to be found in the affidavit evidence of Mr John Fitzgerald, in which he avers, inter alia, as follows:
“As is clear, and contrary to the assertions made [in certain affidavit evidence furnished by the applicants]…EirGrid considered both an entirely undergrounded option and a partial undergrounded option….
By way of summary, [the] consideration of alternatives, including undergrounding options, comprise[d] the following: (a) extensive consideration by EirGrid of the undergrounding option as part of the project re-evaluation process which followed the withdrawal of the previous application in 2010; (b) specifically commissioned reports in respect of undergrounding in particular the PB Power reports and other reports which were included with the planning application in volume 3B of the EIS; (c) the EIS volume 3B which addressed undergrounding and/or partial undergrounding; (d) EirGrid’s ‘Response to the Issues Raised in Submissions and Observations’ document dated 19 October 2015 which, inter alia, addressed submissions relating to undergrounding; (e) the partial undergrounding report…which was produced in response to request from the Board; and (f) evidence at the oral hearing as part of the alternatives module and throughout the oral hearing in response to specific submissions relating to undergrounding….
In the latter respect, alternatives were discussed in Module 1.6 (Consideration of Alternatives) on 15 and 16 March. At the oral hearing both Mark Norton and Aidan Geoghegan responded on behalf of EirGrid to the submissions made, refuting any suggestion that EirGrid had not fully assessed the underground option. The issue of alternatives, including undergrounding, was also raised by individual landowners in Part 2 of the oral hearing and EirGrid responded to those submissions. The Inspector’s Report deals with Alternatives at section 5.4. Alternative transmission technologies, undergrounding using AC cable, undergrounding using a DC cable, undergrounding under the local road network, the M3, a disused railway and partial undergrounding were all addressed as were alternative tower designs including monopole support structures. The inspector’s report concludes:
‘I accept, following the comprehensive re-evaluation process undertaken by the applicant, that the Board can be satisfied that EirGrid has justified the final line design as the optimum solution to meet the overall objectives of the development, having regard to strategic and environmental constraints and the technical requirements for the proposed development.
Following the consideration of alternative transmission and technology alternatives, I accept that it has been comprehensively demonstrated that the only way to meet the strategic and technical need for the proposed development is to provide and new and physically separate high capacity interconnector.
I accept, having regard to the strategic importance of the proposed interconnector as part of the all-island transmission network, the lack of strong interconnection between Ireland and Northern Ireland and the overwhelming need for reliability and security of supply in terms of the all-island electricity market, that notwithstanding the alternatives considered and the advancements in technology, on balance it would appear that the most appropriate and cost effective technology to satisfy the requirements of the proposed North-South Interconnector development is an overhead high voltage alternating current power line.’”
177. The material that was relied upon by the inspector in this regard and that was before her was extensive. The court seeks briefly to identify that material hereafter.
178. First, in the EIS, under the heading “Specific Studies Commissioned by the Respective Applicants on Alternative Transmission Documents”, the following text appears:
“The respective applicants have worked together over many years to jointly consider and assess the various technological alternatives available for the proposed second interconnector. In order to ensure that the development process was fully and properly informed with respect to the available technological alternatives (notwithstanding the initial presumption that OHL would represent a superior solution and that an acceptable OHL route could be identified for the proposed interconnector) the respective applicants jointly commissioned five studies to evaluate potential transmission alternatives specifically for the proposed interconnector. The main objective of the studies was to inform both companies about the latest available alternative transmission technologies, and also to assist the on-going consultative and planning processes relevant to the overall project as applicable to elements being proposed within each jurisdiction….
Four of these studies were informed by specific data on the actual technical characteristics of the transmission systems within each jurisdiction on the Ireland and by reference to the geographic locations and prospective routes applicable to the required transmission circuits. The studies were:
The PB Power Preliminary Briefing Note (…2008)….
The PB Power Study (…2009)….
The TEPCO study (…2009)….
The TransGrid Study (…2009)….
The PB Power Technology and Costs Update (…2013)”.
179. A five-page table follows, headed “Reports on Alternative Transmission Technologies Commissioned Jointly by the Respective Applicants” and comprising sections headed “Report Title”, “Context of Report” and “Main Findings/Observations of Report”. All of these various documents and others were before the inspector and considered. Indeed, as the court considers the documentation that went before the inspector, it is apparent that any suggestion that the proposed North-South Interconnector Project was assessed solely on a cost basis – although certainly it was assessed, inter alia, on a cost basis – is patently not correct. Technical (including environmental) considerations were to the fore of the proceedings and deliberations of the inspector and hence, subsequently, An Bord Pleanála.
180. When it comes to the issue of alternative transmission technologies, the inspector was informed by a number of reports examining the technology alternatives available for the proposed development, including by reference to the wider European context, the inspector observing in her report, inter alia, as follows, under the heading “European experience”:
“I accept that different projects require different solutions. EirGrid accepts that the DC option is feasible, but rejects it on the grounds of technical and cost considerations. Having regard to the significant technological advances made and which continue to be made in technology, the Board may wish to seek specific expert opinion on the current feasibility of integrating a HVDC system into the existing AC meshed network [something that EirGrid had said was not possible]. However, having taken into considerations all of the arguments made, the strategic importance of the proposed interconnector as part of the all-island transmission network, the lack of existing strong interconnection between Ireland and Northern Ireland and the overwhelming need for reliability and security of supply, on balance it would appear that the technology currently best suited to satisfy the requirements of the proposed North-South Interconnector development is an overhead high voltage alternating current power line.”
181. The court ends where it starts: any fair review of the abundant material which is before the court and was before the Inspector discloses that EirGrid gave exhaustive consideration to the feasibility of undergrounding in a number of different guises and respects and the inspector’s assessment and conclusion, and the order of An Bord Pleanála, were and are founded on this exhaustive analysis.
c. Cost-Benefit Analysis.
182. The alleged failure of EirGrid to conduct a proper cost-benefit analysis of the proposed development is also considered by the inspector. There is discussion as to how much more expensive undergrounding would be than over-grounding, the inspector eventually concluding as follows in this regard:
“I accept, following the comprehensive re-evaluation process undertaken by the applicant, that the Board can be satisfied that EirGrid has justified the final line design as the optimum solution to meet the overall objectives of the development, having regard to strategic and environmental constraints and the technical requirements for the proposed development.
Following the consideration of alternative transmission and technology alternatives, I accept that it has been comprehensively demonstrated that the only way to meet the strategic and technical need for the proposed development is to provide a new and physically separate high capacity interconnector.
I accept, having regard to the strategic importance of the proposed interconnector as part of the all-island transmission network, the lack of strong interconnection between Ireland and Northern Ireland and the overwhelming need for reliability and security of supply in terms of the all-island electricity market, that notwithstanding the alternatives considered and the advancements in technology, on balance it would appear that the most appropriate and cost effective technology to satisfy the requirements of the proposed North-South Interconnector development is an overhead high voltage alternating current power line.”
(iii) Some Legal Issues Presenting.
183. It is difficult in the confines of a judgment to do justice to the extensive consideration of alternatives that has been undertaken by EirGrid, as assessed thereafter by the inspector. Suffice it for the court to note that in its consideration of alternatives, EirGrid has clearly gone above what the EIA Directive requires. Article 5(3)(d) of the EIA Directive requires a developer to set out “an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects.” Nowhere in the EIA Directive is there any language which requires or suggests that the rigours of an EIA have to take place with regard to alternatives that are discounted.
184. Here, the applicants contend that there should be a full assessment (in terms of an environmental impact assessment) of all rejected alternatives. But this is not what the EIA Directive requires. It clearly states that a proposed development should be assessed for its likely significant effects on the environment. It states that to enable the competent authority so to do, information has to be provided. But this information is not required to comprise a statement of the likely significant effects of alternatives that are studied and discounted but rather, as referred to above, “an indication of the main reasons for his choice, taking into account the environmental effects.” If the same assessment was required for alternatives as is required for the proposed development, the EIA Directive would have said this, and it does not. Whether the obligation contended for by the applicants is to be read into the EIA Directive by reference, say, to the precautionary principle or the rules of interpretation of European Union law will be the subject of welcome enlightenment by the CJEU following the reference made to it in Holohan. But for now the court prefers to proceed by reference to the unvarnished wording of the EIA Directive and sees naught in European Union law that requires it to do otherwise. Support, in domestic precedent, for the reading of the EIA directive that is being adopted by the court in this regard is to be found in the decision of MacMahon J. in his, if the court might respectfully observe, customarily helpful judgment in Klohn v. An Bord Pleanála [2009] 1 IR 59, the import of which is that a developer is under no obligation to describe the full range of likely significant effects of options which have been fully discounted on objective and transparent grounds. And there is, it seems to the court, much to recommend such an approach. After all, the choice for a competent authority is not between a development as proposed and a development as not proposed, but rather as to whether or not it should consent to a proposed development in light of an understanding of the likely significant effects of same on the environment. To the extent that the applicants contend, if they contend, that the most environmentally friendly option must be put forward or chosen, this does not appear to be what European law requires. As A-G Kokott observes in her Opinion in Case C-420/11, Leth v. Republik Österreich, para. 42, “[T]he EIA Directive does not preclude the implementation of a project even in the case where the environmental impact assessment establishes that there are significant negative effects on the environment.”
XV. Health Impacts
(i) Electric and electro-magnetic fields.
185. Among the points contended for by the applicants at the hearing of the within application were the alleged deficiencies presenting in terms of the assessment of health impacts. Again, it is necessary to turn to the detail of the inspector’s report to assess the contentions made in this regard. Turning then to that report, one finds under the heading “Health Service Executive” (‘HSE’) the following text:
“Electromagnetic Fields
Based on the weight of research in the field, the HSE is satisfied that as long as the development complies at all times with the international exposure limit guidelines as established by the INCIRP [the International Commission on Non-Ionizing Radiation Protection], there will be adequate protection for the public from any electromagnetic field sources”,
and, later again, after touching on an alleged association between proximity to overhead lines and childhood leukaemia, the inspector observes as follows:
“Following the publication in 1979 of an epidemiology study by Wertheimer and Leeper that suggested an association between childhood cancer and proximity of the children’s homes to powerlines, numerous epidemiology studies have been published. These studies investigated many health outcomes, in both adults and children, including cancer and non-cancerous diseases such as heart disease, and reproductive effects.
By the turn of the millennium independent review bodies were carrying out weight of evidence reviews of the ELF EMF [electric and magnetic field] health research literature. These included the World Health Organisation (WHO) and the EU organisations. In 2001, the International Agency for Research on Cancer (IARC) carried out such a review. As an agency of the WHO, which is considered the primary organisation for cancer risk assessment, it regularly and systematically reviews various physical and chemical agents and exposure scenarios, to determine their potential for carcinogenicity in humans.
The IARC classification of ELF EMF in the 2B category as ‘possibly carcinogenic to humans’ was heavily influenced by two pooled analyses that combined and analysed data from available childhood leukaemia epidemiological studies. Whilst the pooled analyses showed a statistical association, it did not provide any support for a carcinogenic effect. This classification implies that the reported association was considered credible but causality was not established….
The second and most comprehensive weight of evidence review of both cancer and non-cancer health outcomes and ELF EMF exposure has been conducted by the WHO, which published its Environmental Health Criteria (EHC) report on ELF EMF in 2007. The EHC report confirmed the earlier conclusion of IARC about the limited evidence from epidemiological studies of childhood leukaemia and ELF EMF and inadequate evidence from in vivo studies. The EHC report did recognise the statistical association between childhood leukaemia and exposure to high levels of magnetic fields, but could not rule out the possible effect of other factors… on these results. For all other cancers… the evidence does not support an association with ELF EMF.
The third review of note was conducted by the Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR). It is the European Union’s scientific committee….[Its reports] did not confirm the existence of any adverse health effects.
In Ireland in the same year, the Department of Communications, Marine and Natural Resources…assembled an expert group that also reviewed the evidence on ELF EMF and health effects. The conclusions of this group were consistent with those of the EHC [that being the World Health Organisation report]….
[T]he paper by Draper et al (2005) is one of the reports most commented on by the observers….I note that that Brunch et al., 2014 updated and extended the previous report by Draper and it reported no overall association with residential proximity to 132kV, 275kV and 400kV power lines for leukaemia or any other cancer among children. The statistical association with distance that was report in the earlier study was not apparent in the extended analysis.
There is also frequent reference by the observers to another report which supports an alternative view….the Bio-Initiative Report 2007.
[The Bio-Initiative Report]…has been heavily criticised by heavily independent and governmental research groups for its lack of balance and rigorous evaluation of the scientific evidence. It was not sanctioned by any professional or scientific organisation. The review did not follow the weight of evidence approach and the conclusions were not developed as consensus opinions, but were the opinions of individual authors. The ‘evidence’ is contrary to previously mentioned weight of evidence reviews, such as the WHO (2007) and SCENIHR (2009)…and (2015)….
The conclusions reached in the report are in line with the conclusions of the SCENIHR in its 2015 Opinion and it re-affirms the overall conclusions of the 2007 Expert Group commissioned by the Irish Government. It concludes that based on current findings, the evidence for the various potential long-term health effects of exposure to ELF with strengths below the limits in the European recommendation is limited or inconsistent.
In response to the argument made by Dr. P. O’Reilly… I would point out to the Board that the Council of the European Union has recommended limits on the strength of EMF to which members of the general public may be exposed. These recommendations are based on guidelines [from the ICNIRP]….
The European recommendation is not legally binding but has been adopted by the Commission for Energy Regulation. EirGrid is required to comply with the EU/ICNIRP limits to ensure both the protection of the health, safety and welfare of its staff and the general public. There is no suggestion in the application that the proposed development will be developed other than in compliance with the guidelines. With regard to siting of powerlines, the proposed development is routed away from towns and major centres of population, through rural countries with low population densities”.
186. The inspector’s summary conclusion on the above-mentioned issues is as follows:
“[T]he relevant scientific literature has been repeatedly and systematically reviewed by a number of international and national health, scientific and governmental agencies, all of which conclude that the available evidence does not confirm the existence of any health consequence from exposure to ELF EMF. The proposed development will be designed and operated to comply with ICNIRP guidelines to ensure protection of public health.”
(ii) Childhood leukaemia.
187. The inspector then moves on to consider the alleged “Increased risk of childhood leukaemia” that the proposed pylon-focused North-South Interconnector project is contended to present, the inspector noting, inter alia, as follows:
“Several…studies are documented in the EIS and in [the] applicant’s response…none of which establish a statistically significant or causal relationship between childhood leukaemia and residential proximity to power lines….
In conclusion, while epidemiological research carried out over an extended period has shown some association between long term exposure to ELF magnetic fields from high voltage overhead power lines and an increased prevalence of childhood leukaemia, the health effects are unproven. The relationship fails to show how long lasting exposure to ELF magnetic fields from power lines actually causes an increase in childhood leukaemia, i.e. causality has not been established. I would point out to the Board that it is the view of the ICNIRP that ‘the currently available existing scientific evidence that prolonged exposure to low frequency magnetic fields is causally related with an increased risk of childhood leukaemia is too weak to form the basis for exposure guidelines. In particular, if the relationship is not causal, then no benefit would accrue from reducing exposure’”.
(iii) Other cancers.
188. The inspector then moves on to consideration of the alleged “Increased risk of other cancers”, observing, inter alia, as follows:
“The potential health effects of ELF EMF fields on various cancers has been researched. To date, there is insufficient evidence for a relationship between exposure to ELF magnetic and electric fields and adult cancers.”
(iv) Non-cancerous diseases.
189. As to the alleged “Increased risk of other non-cancerous diseases”, the inspector makes, inter alia, the following observations:
“Potential links with various reproductive outcomes such as miscarriage and low birth weight have been extensively studied. Research by SCENIHR did not show an effect of ELF EMF on the reproductive function in humans.”
(v) Children with Autism.
190. When it comes to the issue of alleged “Impacts on children with Autism”, the inspector, after noting that particular over-ground cable will be replaced with under-ground cable to allay the concerns arising in respect of a particular family, then continues as follows:
“Dr Hogan (EirGrid) noted that the WHO guidelines are health based and are designed to protect the most vulnerable, which would include individuals with ASD [autism spectrum disorder]. He reiterated that noise levels for the proposed development had been calculated and that not alone is it in compliance, but is significantly below the guideline level. He hoped this would provide some level of comfort to the observers….
The question is whether the OHL [overhead lines] will make the situation significantly worse. He said the WHO guidelines do consider sensitive individuals and for something like noise, one has to consider those with ASD as most sensitive. The WHO levels are set very low and the levels that will be experienced will be below those values.”
(vi) Compliance with the ICNIRP Guidelines.
191. Certain observers at the hearing conducted by An Bord Pleanála raised issues regarding electromagnetic exposures on their property. In this regard, the inspector observes, inter alia, as follows:
“Mr Geoghegan (EirGrid) confirmed two surveys were undertaken by EirGrid in 2010 and 2013. The surveys were carried out at various locations….[T]hese surveys confirmed that the fields measured were extremely low, relative to the levels set down in the INCNIRP and EU Guidelines.”
192. At a later point, under the heading “Other matters”, the inspector notes that among the views urged on her by counsel for one of the objectors at the hearing which preceded her report was the suggestion “that the hearing should be advised independently by experts on the effects of electromagnetic fields”. However, the inspector did not consider this necessary: “Having regard to the substantial information available to the Board on this topic the reviews from scientific agencies including the updated opinion from the SCENIHR and the…report commissioned by the Government and published in 2015, I do not consider that this course of action is warranted”.
193. The inspector then moves to her conclusion regarding the issue of electromagnetic fields, stating as follows:
“Ireland has adopted the ‘precautionary principle’ by adopting the internationally recognised standards and guidelines for both occupational and public exposure to electromagnetic fields.
The proposed development will be designed and operated to comply with international exposure limit guidelines for EMF as established by ICNIRP.
Significant research has been carried out and published opinions consistently find that exposures to EMF does not represent a health risk if the exposure remains below the existing limits set by the European Council’s recommendations.
There are currently no epidemiological studies published on autism to support a link with EMF.
Various studies have been carried out in different scenarios on the impacts on pacemakers and other medical devices and none suggest significant evidence of interference from high voltage lines.
Current evidence does not confirm the existence of any health consequence from exposure to ELF EMF. Similarly, there is no evidence that proximity to high Voltage power lines on crop production or quality.”
194. The foregoing is a succinct summary of the abundant evidence that was put to An Bord Pleanála through its planning inspector and her report, which evidence itself is itself backed up by even more abundant evidence that includes, in the environmental impact statement, a lengthy section devoted specifically to the analysis of health risks, which chapter is engaged with in detail in the portion of the report touched upon above. The environmental impact statement itself cross-refers to some 250 medical texts that are listed in an appendix to the environmental impact statement. So it is not only difficult for the applicants convincingly to make (and the court does not in any event accept) the contention that appropriate matters were not assessed by An Bord Pleanála, or that An Bord Pleanála did not have adequate material before it to meet a conclusion broadly akin to that which its inspector had previously reached.
XVI. The Whooper Swan
195. In his oral submissions, counsel for the applicants made reference to the Whooper Swan, a large swan that winters in Ireland. The court must admit to some surprise that the issue of the Whooper Swan was raised at all at hearing. This is because there is nothing in the statement of grounds about the Whooper Swan. So, to that extent, its fate is simply not part of the application at hand. Second, insofar as counsel referred to the portions of the inspector’s report which deal with the whooper swan, he did not, with respect, point to any deficiency or alleged deficiency in the manner in which impact on the Whooper Swan was assessed. Third, Condition 6 of the Board Order makes provision as regards whooper swans and provides as follows:
“Prior to commencement of development, the undertaker shall agree a monitoring programme for the Whooper Swan with the relevant planning authority following consultation with the National Parks and Wildlife Service. The monitoring programme shall be based on standard good practice and shall include details in relation to location, frequency, duration and methodology. A copy of the results of the monitoring programme shall be submitted to the relevant planning authority and to the National Parks and Wildlife Service.
Reason – To ensure appropriate monitoring of the impact of the development on Whooper Swans.”
196. Insofar as any point was made about this condition, the point appears to be that including a requirement for a monitoring programme must have as a logical premise that the assessment which preceded the imposition of such condition has been deficient in some manner. Perhaps the best way to answer this complaint is by referring to the rationale offered in the inspector’s report (under the heading “Monitoring”) as to the inclusion of such a condition, viz:
“The DAHG [Department of Arts, Heritage and Gaeltacht] suggest that in order to confirm the effectiveness or otherwise of the mitigation measures and to provide a greater understanding of the frequency of bird collision events with overhead lines, a targeted monitoring programme should be undertaken.
EirGrid have responded positively to such a proposal. The monitoring programme proposed will include mortality surveys at high risk areas carried out fortnightly to assess the number of fatalities arising from collision….It will also include [inter alia] flight activity monitoring surveys….These will provide information on any spatial or temporal shifts in bird abundance and distribution relative to baseline data. It will also determine whether additional sites require vantage point monitoring for flight activity based on any changes in the distribution of key species and whether additional mitigation is required.
There is no centralised database for collision data and the monitoring proposed by EirGrid will be advantageous in terms of accumulating information on bird movements, collision risk and the effectiveness or otherwise of the bird diverters. Should the Board be minded to grant approval for the development, I recommend that a condition be attached requiring an operational monitoring programme in accordance with the requirements of the DAHG.”
197. When one has regard to the just-quoted text, it is apparent that the reason for including Condition 6 is not because there has been inadequate assessment prior to imposition of Condition 6, but rather with a view to ascertaining the ongoing effectiveness of the mitigation measures, and ascertaining whether or not further surveys might be required or further mitigation measures required.
XVII. Closing Submissions
198. The court turns now to deal with a number of matters that were the subject of especial focus in the closing stages of the hearing of the within application.
(i) Section 182B(10)(f).
199. Section 182B(10) of the Act of 2000 provides, inter alia, as follows:
“In considering under subsection (1), information furnished [under s.182B(1)] relating to the likely consequences for proper planning and sustainable development of a proposed development in the area in which it is proposed to situate such development, the Board shall have regard to…
(f) the provisions of this Act and regulations under this Act where relevant.”
200. Does the above-quoted provision have the effect of importing, inter alia, the requirement as to landowner consent that one finds in Art. 22(2)(g) of the Planning and Development Regulations (S.I. No. 685 of 2006) whereby, a planning application must be accompanied by, inter alia, “where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make the application”? Three points might be noted in this respect:
(1) section182B(10) requires the Board merely to “have regard to…”, no more – and certainly not ‘slavishly to adhere to…’;
(2) when referring to “the provisions of this Act and regulations under this Act where relevant”, the Oireachtas presumably intends to refer, inter alia, to regulations that apply to the application, not to regulations that do not apply…and so not, say, to Art.22(2)(g). The court does not read s.182B(10) as rendering applicable that which is not.
(3) section 182B(10) commences “In considering under subsection (1), information furnished [under s.182B(1)]…”. If one returns to s.182B(1), the information required to be considered by An Bord Pleanála is identified there and one simply cannot extrapolate from the provision there made an obligation to provide landowner consent.
(ii) Ordinary and legal intent.
201. The court has touched previously above on the phrase “intends to carry out development” which appears in s.182A of the Act of 2000. But in his closing submissions counsel for the applicants touched upon a point which had not previously been focused, viz. whether there is a distinction between ‘intending to do something’ and ‘legally intending to do something’, with the latter being the intent applicable in the within context, extending only to something which, as a matter of certainty, one can achieve using powers and abilities within one’s own absolute control. The court respectfully does not accept the purported distinction arising between intent and legal intent, a proposition which is not supported by authority. But apart from the absence of authority, it is an interpretation which makes little sense when one has regard to the customary meaning of the word ‘intent’, being a determination to do something. A person may intend to do things which are contingent on a finite or infinite number of potential contingencies, but the existence of those contingencies does not compromise the fact or integrity of that person’s intent. In truth, the court sees in this line of contention as to ordinary and legal intent but a further attempt to carry home the notion that for EirGrid to proceed with the North-South Interconnector, it must first have landowner consent. But that notion has been examined at some length by the court previously above, by reference to the applicable legislative scheme, and respectfully rejected by it.
(iii) ‘Brexit’ as an issue of need.
202. Counsel for the applicants, in his closing submissions, appeared somewhat to re-cast the ‘Brexit’ issue touched upon previously above as an issue pertaining to need. The issue of ‘Brexit’ as originally tended to the court has been addressed comprehensively elsewhere above and the court does not propose to re-visit same. As to need, that is an issue that has been comprehensively touched upon in the planning inspector’s report, and the court understands there to be no issue to be taken with the assessment of need per se, but rather with the alleged fact that ‘Brexit’ is a need issue and that need ought to have been assessed in the context of same. But there is not a jot of evidence before the court by reference to which the court could properly conclude that ‘Brexit’ has impacted on need in any way. The truth is that changes occur in economic and/or political circumstances all the time. Those changes do not mean that there is an obligation on planning or other authorities to re-assess every assessment which has transpired simply because of the possibility, no matter how remote, that there may be an impact on aspects of the matter that they are addressing, notwithstanding that nothing has actually occurred which can be identified as having a concrete impact.
(iv) Vires.
203. Another point touched upon freshly in the closing submissions of counsel for the applicants was a vires point, being that conditions which involve matters being addressed with local authorities, e.g., a condition such as Condition 3(c), are impermissible where approval is sought under Section 182B. To address this it is necessary to return to return to applicable statute and contrast the manner in which conditions are addressed under s.34 of the Act of 2000 with the approach adopted in s.182. Section 34 of the Act of 2000 provides, inter alia, as follows:
“(1) Where –
(a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) all requirements of the regulations are complied with,
the authority may decide to grant the permission subject to or without conditions, or to refuse it….
(4) Conditions under subsection (1) may, without prejudice to the generality of that subsection, include all or any of the following…[a long and wide range of conditions follow]….
(5) The conditions under subsection (1) may provide that points of detail relating to a grant of permission may be agreed between the planning authority and the person carrying out the development; if the planning authority and that person cannot agree on the matter the matter may be referred to the Board for determination.”
204. The position under s.34 falls to be contrasted with that which pertains under s.182B, sub-section (5) of which provides as follows:
“The Board may, in respect of an application under section 182A for approval of proposed development-
(a) approve the proposed development,
(b) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,
(c) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or
(d) refuse to approve the proposed development, and may attach to an approval under paragraph (a), (b) or (c) such conditions as it considers appropriate.” [Emphasis added].
205. To borrow a colloquialism, it seems to the court to be ‘comparing apples and oranges’ to say, in effect, ‘Under s.34 there is express facility to impose conditions of the kind now in issue; however, there is not like provision in s.182B and so the imposition of conditions such as Condition 3(c) is not possible’. The generality of the power that An Bord Pleanála enjoys under s.182B(5)(d) to impose conditions must and does encompass a power to enable An Bord Pleanála, subject to the Boland criteria, to impose, as it did, conditions such as Condition 3(c) involving the agreement of points of detail with “the relevant planning authority”.
(v) Which Routes Were Approved?
(The ‘Yellow and Purple’ Issue)
206. Counsel for the applicants, in his closing submissions, advanced the argument that the decision of An Bord Pleanála, by approving “the proposed development” only relates to the (yellow) access routes as originally presented and does not encompass the (purple) routes as modified during the course of the hearing before the inspector. To test that line of argument, the court proposes to return to the inspector’s report and trace through exactly what was determined by the inspector and how that is reflected in the impugned decision of An Bord Pleanála.
207. Turning then to the inspector’s report, she concludes her section on the proposed construction methodology with the following observations:
“The key issues arising in this section of the report relate to the ability of the applicant to predict ground conditions and assess the viability of access routes, based on the limited access to lands for survey.
It is considered that the applicant has demonstrated that the use of primarily desktop survey work (which includes LiDAR survey), supplemented by walkover survey, shallow augers and vantage point survey where possible, is consistent with the approach taken by the applicant in respect of other electricity transmission projects in the State and is sufficient to predict ground conditions for the design of foundations.
It is noted that the methodology adopted in respect of the proposed access routes (which was not subject to LiDAR survey) has resulted in alterations to access routes during the course of the oral hearing. As the applicant is not seeking approval for the proposed access routes, it is considered that this approach is acceptable. Furthermore, it is considered that the applicant has demonstrated a viable access route to each tower site, guarding location or stringing area for the entire route corridor and has set out clear principles regarding the proposed use of access routes for environmental impact assessment, should the indicative routes change.
The remaining technical sections of this report assess the environmental effects of the indicative access routes and the environmental effects of the proposed construction methodology for the use of these.”
208. There follows an “Alterations Table in Respect of Access Routes to Towers, Guarding Locations or Stringing Areas” identifying the changes which have occurred, and there is in the report considerable reference to the modifications. However, it is as well to pause and assess what the inspector is in fact saying in the above text. The historical sequence of events is that the maps furnished by EirGrid had access routes marked in yellow on them; a number of changes occurred and a suite of maps was produced bearing a purple dot which showed the revised access routes. Viewed in that context, what the inspector is saying is that the developer has demonstrated in respect of each tower, a viable access route to same, and that based on the information the inspector has been given in relation to the access routes (original and varied) she is in a position to conduct an environmental impact assessment, which she then does in the ensuing sections of the report. (And in this context it is perhaps worth noting that an environmental impact assessment is an iterative process, i.e. it is a process which includes the environmental impact statement, the submissions made on the strength of same, the responses to those submissions and, of course, and the forum for public participation which is afforded by way of a public hearing and in which, in this case, the alterations (the purple lines) were clearly considered).
209. Later still, in the “Reasons and Considerations” section of her report, the inspector writes as follows:
“Whilst it is recognised that the proposed development will result in a limited number of localised impacts, having regard to the identified strategic need for the development, the routing and detailed design of the alignment to avoid environmental constraints, it is considered that subject to compliance with the mitigation measures set out in the EIS, the NIS and the response document and the conditions set out below, the proposed development would be in accordance with the proper planning and sustainable development.”
210. The inspector then makes her recommendation (being “that approval for the development be granted, subject to the conditions set out below”), following which she identifies the range of considerations to which she has had regard arriving at her conclusion and recommendation. In this regard, the inspector refers to all the documentation on file, including, inter alia, the environmental impact statement and the Natura impact statement, “and the submissions and observations made in respect of the application, including at the oral hearing”. One cannot read this text and then properly arrive at the conclusion that the inspector (whatever about An Bord Pleanála) has ignored the routing modifications and has failed to have regard to them in framing her conclusion and her suggested conditions. Among those suggested conditions are a proposed Condition 5, viz:
“Prior to the commencement of development, a construction management plan, a traffic management plan and waste management plan shall be submitted to, and agreed in writing with, the relevant planning authority following consultations with relevant statutory agencies, including Inland Fisheries Ireland and the Department of Arts, Heritage and the Gaelteacht and Irish Water. This plan shall incorporate the mitigation measures indicated in the environmental impact statement, and any others deemed necessary, and shall provide details of intended construction practice for the proposed development, including…
(c) site specific arrangements for each temporary access route, to include, where necessary:
(i) arrangements for stepping down vehicle size,
(ii) arrangements for off-loading of materials,
(iii) short-term road closures,
(iv) the phasing of construction works which are accessed by single-lane carriageways,
(v) the arrangements for the transfer and management of concrete, including wash-out facilities.”
211. The temporary access routes to which reference is made in the just-quoted text can only be the varied temporary access routes which the inspector has just assessed.
212. What then of An Bord Pleanála? Despite the planning inspector having assessed, inter alia, the varied temporary access routes, did An Bord Pleanála in its order close its mind to those variations and return to the original proposed temporary access routes? In the “Reasons and Considerations” segment of its order, An Bord Pleanála states as follows under the heading “Matters Considered”:
“In making its decision, the Board had regard to those matters to which, by virtue of the Planning and Development Acts and Regulations made thereunder, it was required to have regard. Such matters included the submissions and observations received by it in accordance with statutory provisions.”
213. The court notes in passing the reference to “included”, rather than ‘included and were limited to…’.
214. Under the heading “Reasons and Considerations”, An Bord Pleanála then moves on to indicate that it had regard, inter alia, to
“all documentation on file including:
(a) the environmental impact statement,
(b) the Natura impact statement,
(c) the joint environmental report,
(d) the submissions and observations made in respect of the application, including at the oral hearing, [and]
(e) the applicant’s response to the submissions received”.
215. So those are the ‘channels of information’ to which regard was had by An Bord Pleanála in reaching its decision and formulating its conditions. Later, under the heading “Environmental Impact Assessment”, An Bord Pleanála indicates that it has considered, inter alia:
“ the submissions from the planning authorities, prescribed bodies and from the observers in the course of the application, including submissions made to the oral hearing;
the applicant’s response to the submissions received; [and]
the Senior Planning Inspector’s report and recommendation dated the 14th day of November, 2016”,
and continues:
“The Board considered that the environmental impact statement supported by the ‘Response to the Issues Raised in the Submissions/Observations’ document, identifies and describes adequately the direct and indirect effects of the proposed development on the environment….
In doing so the Board adopted the report of the Senior Planning Inspector.”
216. Thereafter, the conclusions are recorded, which conclusions, of course, overlap with the conclusions reached by the Inspector. And then, after all these matters are listed, An Bord Pleanála states as follows:
“In conclusion, it is considered that, subject to compliance with the conditions set out below, including compliance with the mitigation measures set out in the environmental impact statement, the Natura impact Statement and the ‘Response to the Issues Raised in the Submissions/Observations’ document, the proposed development would be in accordance with the proper planning and sustainable development of the area.”
217. Then comes the “Conditions” section, with a Condition 3(c) that precisely replicates the inspector’s proposed Condition 5, as quoted above.
218. Despite all of the foregoing and notwithstanding the assessment by the inspector, notwithstanding the clarity as to the temporary access routes to which she was referring, notwithstanding the fact that An Bord Pleanála adopts, in relation to the environmental impact assessment, the inspector’s report, notwithstanding the fact that An Bord Pleanála refers to and had regard to all documentation on file, notwithstanding that An Bord Pleanála refers to and had regard to the submissions made at the oral hearing, notwithstanding all of the foregoing, the court is asked to believe that the Board addressed its order to temporary access routes frozen in time for no apparent reason, notwithstanding the process of assessment which had been undertaken and notwithstanding the specification by the developer of what the modified routes actually were. That, with respect, is a remarkably difficult construction to place on the decision and not one that the court places upon it.
XVIII. Jus Tertii
219. The thrust of the within judgment, which is not at all favourable to the applicants, is such that the issue of jus tertii (in effect the pleading of the rights of a third party) is not of the significance that it might otherwise have been. Be that as it may, the court considers that (i) while, in broad terms, the applicants have standing to bring the within proceedings, (ii) when the court has regard to the observations as to standing made by Henchy J. in Cahill v. Sutton [1980] I.R. 269, 283, as applied in the context of judicial review applications in Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 IR 270, it does not see that either of the applicants, neither of them being landowners, has the requisite standing to make such claims as were made in their pleadings and submissions concerning allegedly affected landowners. That, to borrow from the phraseology of Henchy J., seems to the court to be a near-classic example of allowing “one litigant to present and argue what is essentially another person’s case”.
XIX. Closing
220. Few if any of us would welcome the news that a great line of electricity pylons and linking wires was due to be erected on or across property that we chanced to own or otherwise enjoyed. The applicants to these proceedings, living in a beautiful part of Ireland and enjoying some of the best of the Irish countryside, understandably object to the fact that the North-South Interconnector development, as proposed, is to be built upon their properties, by their homesteads, or across their townlands. But when it comes to the decision of An Bord Pleanála, on 19th December last, to grant approval to EirGrid for the proposed North-South Interconnector development, the court, for the reasons identified in the preceding pages, is coerced as a matter of law into concluding that there is no lawful basis presenting that would justify it granting any of the reliefs that the applicants now seek. It follows that all of the reliefs sought by the applicants at this time must be and are respectfully refused by the court.
Marshall & Anor v. Arklow Town Council
[2004] IEHC 313
Judgment of Mr Justice Michael Peart delivered the 19th day of August 2004:
Nothing is more likely to disturb the peace and tranquillity of a small rural neighbourhood than the unexpected commencement of building upon a site. When some mystery surrounds the identity of the developer, and when the development is one which has taken those in the neighbourhood by surprise, folk who normally enjoy a quiet and gentle disposition become agitated, and are wont to don, for a time at least, the unfamiliar mantle of combatants in support of those who wish to examine the process by which such a thing could happen. That is what has come to pass in the area of Ticknock Lane near Arklow, Co. Wicklow.
At the heart of this application for an Order of Certiorari in respect of a Decision to Grant Permission for the erection of two houses on that lane, is the question of whether there was or was not a site notice erected and duly maintained at the site in accordance with the requirements of Article 17(1)(b),19 and 20 of the Planning and Development Regulations, 2001 (S.I. 600 of 2001) (“The Regulations”). That is one purely factual matter which the Court has to consider.
Another matter for consideration is whether, especially in the light of the applicants’ allegation that no such site notice can have been so erected, and so maintained in position, the fact that the Respondent Planning Authority for the area, as is admitted by it, failed to inspect the site within that five week period in order to satisfy itself that a site notice was duly erected and maintained, is a breach of any obligation upon it under the said Act and Regulations which is sufficient to render the Decision to Grant Permission invalid.
Background Facts:
In about May 2003 Bridget and Terry Keogh (“the Keoghs”) bought and moved into a house at the corner of where the Dublin Road meets Ticknock Lane. Mrs Keogh stated in her cross examination that they had bought the property as an investment. Their entrance is on the Dublin Road, but behind their house is a site capable of development.
In about June 2003 they decided to apply for planning permission for the erection of a single dwelling on that site. They placed the usual notice in the Evening Herald newspaper and erected a site notice on the Dublin Road in accordance with the Regulations. But, in addition, they also consulted their neighbours, including the applicants herein, and discussed with them what was proposed. When the Marshalls became aware of this application, they lodged an objection, as was their right. Planning Permission was granted in due course, but in order to satisfy their objection a condition was attached to the permission which was granted, and they were content.
However, after permission was granted and without any further consultation with their neighbours, the Keoghs decided not to develop this site themselves, but rather to sell it with the benefit of the planning permission which had been obtained. For some reason the site was not publicly advertised. No “for sale” notice was erected. Negotiations for the sale of the site were conducted through a firm of auctioneers and appear to have been concluded by about the 10th December 2003. A Contract for Sale was executed by a solicitor in trust for the purchaser on the 19th December 2003. The identity of that purchaser was not disclosed on the contract document, but included among the Special Conditions in the contract was one at para 8 thereof, by which the Keoghs agreed as follows;
“No objection shall be made by or on behalf of the Vendors to any proposed development by the purchaser on the site the subject of this sale.”
That clause is written in handwriting, and replaced the original typed para. 8 which read as follows:
“The (sic) should the vendors at any time in the future grant the purchaser a way-leave over the retained lands to enable the purchaser to lay pipes in order that he may connect into the vendors existing septic tank.(sic) This way-leave agreement shall be for a single dwelling only. It is expressly agreed between the parties, that they shall share equally the costs of insertion of a bio cycle system if required, and it is further agreed that each party shall be responsible for 50% of the costs of general maintenance of the septic tank.”
It seems clear from the wording of this original clause that the Keoghs envisaged that only one house was to be constructed by the purchaser, but some further discussion must have taken place prior to final execution which resulted in the deletion of this clause and its replacement by the one which appears above. I have no evidence as to whether or not the Keoghs were aware at that time that the purchaser intended to apply for a new permission to erect two houses on the site.
As I have stated this contract was signed in trust on the 19th December 2003, and on the very same date an application was lodged by the first named Notice Party for permission to erect two houses. She and one Gary Doyle were the actual purchasers of the site. The application form itself was signed by the second named Notice Party who is a brother of the first named Notice Party, and is a Consulting Engineer who prepared the plans and the application for planning permission.
It would appear from the evidence which I have heard that prior to the agreement to sell to them, she and Mr Doyle were confident that they would be successful in the negotiations for purchase, and were able therefore to be in a position by the 19th December 2003 to have all the necessary plans and documentation ready for lodgment in the planning office of the Respondent immediately after the contract was executed in trust on their behalf. In fact the application form itself is dated the 17th December 2003. In addition they were able to lodge the notice with the Evening Herald which actually appeared in the edition of that newspaper on the 19th December 2003 itself. That presumes that it was submitted to that newspaper at least the previous day. It is certainly clear that everything was in readiness as far as the new application for planning permission was concerned prior to the actual execution of the contract, so that not even twenty four hours was lost in making the application.
No objections to the application for permission were received by the respondent, and by Notice dated 18th February 2004 the Respondent notified the first named Notice Party that it had decided to grant permission for the erection of two houses on the site in question. Fifteen conditions were attached to the decision, four of which have some relevance. Those relate to financial contributions which would have to be made to the Respondent in respect of the cost of providing roads, water and sewage, recycling facilities, recreation and amenity, facilitating the site development. The conditions in question require that these contributions be made “before development commences”.
There followed the four week appeal period before final permission would be granted. No appeal was lodged during that period. But prior to any Grant of Permission being issued on foot of the Decision dated 18th February 2004, and prior to making any of the financial contributions, or the service of a Commencement Notice, work was commenced for the erection of two houses on the site. This date of commencement is generally accepted to have been about the 18th March 2004 – in other words immediately after the expiration of the appeal period.
The commencement of work did not go unnoticed by those in the neighbourhood, but it was assumed at first that the work being done was in relation to the development of one house pursuant to the earlier planning permission obtained by the Keoghs.
It would appear that Mr Keogh happened to be in the planning office in Arklow on the 18th March 2004 in connection with some unrelated matter, and saw a notice on a notice board in that office indicating that permission had been granted for two houses on the site which he and his wife had sold. He was surprised at this since he could not recall seeing any site notice even though he passes the site regularly. This must have been around the time work had actually commenced, but it would appear that Mr Keogh had not become aware of the fact by the time he spotted this notice in the planning office. He made further enquiries about the matter and spoke to a couple of officials in that office. It was confirmed to him by them that no inspection of the site had taken place within the 5 week period from the date of the application, to enable it to be confirmed whether during that period a site notice had been in place. It is worth referring at this point to the fact that the site was inspected on 4th February 2004 by Mr Sean Dunne, a planning technician with the Respondent. He completed a form, as is his habit following an inspection, which is headed “Arklow Town Council – Inspection of “site notice” in accordance with article 17(1)(b) of Planning Regulations”.
On this form there are four boxes underneath which the words “Yes/No” appear. This implies that the person completing the form must write either of these words, as appropriate, in each box. The boxes relate to whether there was a site notice present at the site when it was inspected, and whether it was legible, easy to see, sufficient, and in compliance with the requirements of article 17(1)(b) of the Regulations. In each box on this particular form, Mr Dunne inserted an “X”, rather than the word “Yes” or the word “No”. The “X” in each box was intended by him to mean “No”. For some reason which I do not understand, the “X” in each box was taken by the relevant official examining the file for the purpose of the Decision to Grant Permission, to read “Yes”. However, the fact of the matter is that if the site notice was erected at the site on the 19th December 2003, the 5 week period during which it must remain in place would expire on the 23rd January 2004, whereas this inspection was not made until 4th February 2004 by which time there was no longer any requirement to have the notice in place. Mr David Dempsey, the engineer brother of the first named Notice Party, stated in evidence that on the very day that the time for having the notice in place expired, he attended at the site and personally took it down and put it and the post to which it had been attached into the back of his Jeep. He did not keep it.
On discovering these matters, the Keoghs felt obliged, according to their evidence, to tell their neighbours about the fact that the new owners had been granted permission for the erection of two houses, since it is a close community and they had sold the site with permission for one house which the neighbours knew about. They did not consider that two houses were appropriate on that site and felt morally bound to tell the neighbours what they had discovered, even though there was a clause in the Contract for Sale by which they had agreed not to object to “any proposed development by the purchaser on the site”. They consider the development to be too big for the site and are concerned that some of their neighbours will be overlooked. They are also concerned that none of those affected by the development had any opportunity to lodge objections to what was proposed since no site notice was in place, and they think it is wrong. In cross-examination, the Keoghs were challenged over the fact that they were now, allegedly in breach of their contractual obligation not to do so, making an objection to the application for permission by the first named Notice Party and Mr Gary Doyle. However, they believe that by supporting the applicants in the present application for Judicial Review they are not in breach of the Special Condition to which I have referred, which is in their view confined to lodging an objection to an application for permission within the time specified for doing so after the application is lodged.
By the 24th March 2004 the neighbourhood had become aware of the second application for permission for two houses, and galvanised themselves into action. For example, Mr Coates met two people walking in the lane who made some remark to him about two houses being built. He was surprised as he had assumed it was the single house development which he knew about. He went to the planning office the following day to make enquiries about how it could arise that permission was granted in the absence of any site notice. He was told that the matter of the site notice was being investigated. Mr Coates was contacted the following day by Mr Dempsey who wanted to discuss the question of a boundary wall between the site and Mr Coates’s house which adjoins, and who apparently indicated to him that no windows would overlook his house. He says that there is no way that he would not have spotted a site notice if one had been erected in the lane at the site as he walks past the site several times a day, and that if he had seen the notice he would certainly have exercised his rights to lodge objection and to appeal, if necessary.
Mr Coates also spoke to Mr and Mrs Marshall, the applicants herein. Other neighbours were equally concerned as they also could recall no site notice, such as Mr McGuire who lives immediately opposite where Mr Dempsey states he placed the site notice. He says he could not have missed the notice if it had been there for the 5 week period, as he would have passed it several times each day. Other neighbours have sworn affidavits saying that they pass the site on foot regularly and never saw any notice at the site. They have each been cross-examined on their affidavits also, and there is nothing to be gained by setting out each of the evidence in full. Suffice to say that each denies that there could possibly have been a site notice otherwise they would definitely have seen it, and each have denied that they saw the notice which was inserted in the Evening Herald on the 19th December 2003.
On the 25th March 2004 a warning letter pursuant to s.152 of the Planning and Development Act, 2000 was sent by the respondent to Mr Dempsey, stating that work had commenced without compliance with the conditions contained in the planning permission, and calling upon him to cease all works. Mr Dempsey responded by letter dated 31st March 2004 enclosing a part payment of €10,000 and making a proposal to make further payments in the months following, and enclosed some revised drawings related to footpath layout, and showing the location of sewerage connections, and manholes. He concluded by expressing the hope that what was now supplied was sufficient to comply with their requirements, and that he would expect to commence works again as soon as possible.
Mr Dempsey had stated in his replying affidavit that the Commencement Notice was served ahead of actual commencement but that appears to be incorrect. He also stated in his cross-examination that it was normal enough in his experience for works to be commenced ahead of the financial contributions being made, and even ahead of a Commencement Notice being served. He felt that a lenient approach to such matters was taken by the Council.
I am presuming that significant work was done on the site thereafter since by the time the application for Judicial Review was prepared, photographs show significant blockwork in place in relation to both houses. These proceedings were commenced on the 28th April 2004 by the filing of the Notice of Motion herein dated 26th April 2004. I have already ruled on the question of an extension of time, and have granted same. On the 20th May 2004 the Respondent served an Enforcement Notice requiring the first named Notice Party “to cease the unauthorised use (buildings under construction)” at the site, and “to remove the unauthorised structure within 4 weeks of the date of this Notice.” Work ceased. But I am not sure whether it ceased as a result of the commencement of these proceedings or only as a result of the service of the Enforcement Notice. Nothing turns on that in any event.
The Marshalls, the Keoghs and Mr Coates had sought legal advice at the end of March 2003 from solicitors now acting on behalf of the applicants. A letter was written immediately by those solicitors on the 5th April 2004 to the Respondent. The problem about the site notice was referred to, as well as the fact that building appeared to have been commenced ahead of compliance with statutory requirements – presumably a reference to the absence of a commencement notice, the failure to make the financial contributions, as well, presumably, as the fact that a final grant of permission had not issued following the expiration of the appeal period.
Be3fore dealing with the legal issue arising, I need to summarise as best I can the evidence relevant to the existence of the site notice, contained in the affidavit of Mr David Dempsey who has been in charge, so to speak, of this development on behalf of his sister, as well as Mr Gary Doyle, Mr Edward Doyle. I will also outline the evidence of Mr Sean Dunne, a planning technician with the Respondent, and the cross-examination of each.
David Dempsey’s evidence:
In his affidavit he refers to the agreement to purchase the site in December 2003 by his sister and Gary Doyle, and to the fact that he was instructed to inspect the site and determine the level of development for the site. He says that having done so, he concluded that two houses could be put on the site and he had discussions about this with the Respondent and he understood that such a proposal would not meet with objection from the Council. It has to be the case that these discussions took place some considerable time prior to the contract for the purchase being signed on the 19th December 2003, because on that date all plans had already been prepared and the application was ready to be lodged with the Council on the same date as the contract was signed, as I have already mentioned.
He says that he is very familiar with the statutory requirements relating to site notices and public notices, since his offices handles “five to six planning applications each week to various local authorities.” He says that prior to the lodgement of this application he caused a notice to be published in the Evening Herald (this appeared in the edition of that newspaper on the 19th December 2003). He then refers to the site notice which he says he prepared and which he personally erected on the site on the 19th December 2003. He then states that the application for permission was lodged also on the 19th December 2003. In relation to the site notice, he states as follows at paragraph 8 of his affidavit:
“………I say that I am absolutely certain that such notice was erected because I say that I was the person who erected it on the site in accordance with the regulations and I say that given that it was an application being lodged by my wife (sic) as co-owner of the lands I say that I was particularly scrupulous to ensure that all the requirements of the regulations were complied with.”
At paragraph 10 he states:
“I say that during the course of the application I inspected the site at least twice a week to ensure that the site notice had been erected and was maintained in position. I say that on one occasion did I find (sic) that a Notice had been interfered with and I say that I immediately replaced the notice with a new notice, r-erected it and I say that the site was kept under constant review not least because I was aware that I had a duty to do so but also because of the family connection with the development and I say that I am absolutely that the notice was erected prior to the lodging of the application and was maintained on the site during the period which the application was before the planning authority in accordance with the Planning and Development Regulations.”
He cannot understand how the applicants failed to see the notice which he erected.
He was cross-examined by Mr David Hardiman SC, on behalf of the applicants. In relation to the site notice he was asked about the lack of detail in his affidavit about the erection of this site notice, how it was constructed, where exactly and how it was placed in position. He stated that he had placed the notice itself in some laminate which he tacked to a piece of plywood, which in turn was nailed to a wooden post which he drove into the ground at the point marked on the site map. He drove this post into the raised clay mound which is in front of a hedge bordering the site. He also stated that about one week later, in fact on the morning of Christmas Eve, he spotted that the sign had been taken down and left lying in the ditch. He concluded that this had been done maliciously since he had driven the post into the ground very firmly with a lump hammer, and it could not have been down by accident. He re-erected the same notice, and not a new notice (as is incorrectly stated in his affidavit).
He was referred to the fact that when solicitors had replied to the applicants’ solicitor’s letter, those solicitors had referred to the sign being down “on a couple of inspections” and that it had been erected again “each time”. Mr Dempsey said that he had told the solicitor that the sign had been down on one occasion. He also stated that it was a common enough occurrence in his experience that a site notice would be knocked down or might be blown down by wind. He had had three such instances himself in the previous three months. He stated that he took the notice down on the 18th February 2004 which he said was about three days after the 5 week period had expired. That however must be an error either in his evidence or in my notes, since the period of 5 weeks from the 19th December 2003 expires on the 23rd January 2004, and Mr Dunne from the Council inspected and found no notice on the 4th February 2004. Later he said that he had left the sign in place for about ten days longer than the required period to allow for the Christmas period. However, nothing in particular turns on that since it is clear one way or the other that by the 4th February 2004 there was no site notice in situ.
Under cross-examination, Mr Dempsey stated that he would always be aware that some person from the Council would inspect a site after an application was lodged, and that the consequence for not having a site notice in place is that the application is returned as invalid. It would, therefore, be madness in his view, if he were not to have erected a site notice in this case and that he definitely did so. In his experience the Council nearly always carry pout an inspection and he would never take the chance that they might not.
Evidence of Gary Doyle:
He states in his affidavit that he himself is a building contractor and that he is a co-owner of this site. He is building the houses in question. He refers in his affidavit to a conversation which he says took place at the site between himself and Mr Keogh on the 23rd March 2004. He says that Mr Keogh informed him that there was disquiet among the neighbours about the fact that permission had been granted for two houses. But in relation to the site notice he states that he inspected the site “on a number of occasions” and as often as once a week, and that on each occasion there was a site notice in place, and that there was no attempt to conceal it, and that he was well aware that the Council would be inspecting the site to ensure that such a notice was in place.
In cross-examination Mr Doyle stated that he called regularly to this site during the application period because he is in the habit of so doing in relation to all the sites where he would be building from time to time. He was not aware of the time the sign is said to have been down, and that he was just told about that by Mr Dempsey. He could not understand how it could be that the neighbours had not seen the notice. He had not made any contemporaneous notes or diary entries about his inspecting the site and observing the site notice in place.
The evidence of Mr Edward Doyle:
He is no relation of Mr Gary Doyle, and just happened to be an unsuccessful bidder for the site in December 2003. He had been interested in buying the site around September 2003, and had some discussion with the Keoghs in that regard. However in his affidavit he states that his father died in November 2003 and went to Sweden for his funeral. By the time he returned he discovered that the site had been sold and he was anxious to find out the identity of the purchaser, in case for any reason that purchaser might wish to sell it on to him. Both Mr Keogh and the auctioneer, Mr Nulty apparently disowned any knowledge of the identity of the successful purchaser, as it was bought in trust. He then goes on to state that as part of his effort to locate the identity of the purchaser he called almost every day to the site in the hope of meeting the new owner, and he says “it was on these occasions that I noticed that a new site notice had been erected.” He goes on to say that in April 2004 he was speaking with Mr Keogh who told him that there was some problem about the planning permission due to the absence of a site notice and that Mr Keogh asked Mr Doyle to swear an affidavit stating that he had not seen any notice at the site. However, Mr Doyle said he would not as he had seen the notice. He also states in his affidavit that he inspected the notice on the site “on a daily basis between the 18th December 2003 and 4th January 2004 or thereabouts.”
In cross-examination, this Mr Doyle stated that when he had come back from Sweden he had put in a sealed bid for this site on the 17th December 2003, but that in spite of the fact that his bid was higher than the bid accepted by the Keoghs, his was not accepted. It was stated that this was because there may have been thought to be some uncertainty as to whether he had the funds to complete the purchase, but Mr Doyle said that he proved to the auctioneer that he had the money. He feels somewhat aggrieved about the fact that his bid was not accepted and suspects something underhand was going on. But in any event that is why he wanted to contact the successful bidder in order to see if he would sell on to him. He remembers looking at the site notice to try and find out who to contact. While he knew of David Dempsey he did not know the first named Notice Party whose name alone, he says, was on the site notice.
Evidence of Mr Sean Byrne:
He is a planning technician with Arklow Town Council. In his affidavit he outlines the progress of this planning application from the time it was lodged on the 19th December 2003. He states that the application included a copy of the site notice, and he exhibits same. He says that this application was acknowledged to the applicant on the 23rd January 2004, and that he inspected the site on the 4th February 2004 “and observed that no site notice was in place.” He also states that on that date he completed what he describes as a “standard form for the planning file”. This is the form to which I have already referred, and which Mt Dunne states “was misinterpreted by the Town Engineer when he issued his report and recommendations to the Director of Services for decision who subsequently accepted the recommendation and approved the application.”
His affidavit goes on to deal with other matters such as the warning letter sent on the 25th March 2004 and the Enforcement Notice dated 20th May 2004. Finally he states that as of the date of swearing of his affidavit, namely the 7th July 2004, no final grant of planning permission has been issued.
Under cross-examination by Mr Hardiman he stated that inspection of sites the subject of a planning application is on a random basis only, but that between 80%-90% of sites get inspected within the prescribed time. He works off a list of such sites. He inspected this site outside the 5 week period. He completed the “standard form” on the basis that the requirements had not been complied with as far as the notice was concerned, but that this form was misinterpreted by the Town Engineer. He stated that in a case where inspection occurs within the period and no site notice is found to be in place, his normal procedure is to go back to the planning file and try and ascertain if there is evident a reason for no site notice – for example the application might have been withdrawn. In the present case, there was no point in making any further enquiries about the matter, apart from looking at the file, as the inspection had taken place outside the time and at a time when there was no obligation to have a site notice in place.
He also stated in cross-examination that once he has inspected all the sites on the list he gives all the standard forms in a bundle to the Town Engineer at the same time, and that the Town Engineer must then check through the forms in relation to the requirements as to the site notice, but that in the present case the form was misinterpreted by him. Mr Dunne conformed that when he found no site notice in place he did not check with the developer as to whether there had been one in place during the requisite period. It was put to him that in these circumstances, in the absence of any enquiry at all, he could not have had any basis for believing that the requirements had been complied with. But Mr Dunne stated that there was nothing further he could have done since the time had expired. He stated that there would have been no point in going to the developer as he would simply have been told that there was such a notice in place. He would have no way of knowing whether he was being told the truth. He said that where the inspection had not taken place within the appropriate time, an assumption was made that there had been compliance, and no positive step was taken to establish the position in any way. It is assumed to have been done in the absence of evidence that it was not. He said that they did not have the necessary resources to ensure that such notices were in place on each of the days of the 5 week period during which the Regulations require the notice to be in place. He confirmed that the consequence of non-compliance is that the application is deemed to be invalid and the applicant must re-commence the application process.
The Regulations:
The articles of the Regulations which are relevant to the present case are those set forth hereunder:
Article 17(1):
“An applicant shall within the period of two weeks before the making of a planning application –
(a) give notice of the intention to make the application in a newspaper in accordance with article 18, and
(b) give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19.”
Article 19(1):
“A site notice erected or fixed on any land or structure in accordance with article 17(1)(b) shall be –
(a) in the form set out at Form No.1 of Schedule 3 or a form substantially to the like effect,
(b) subject to sub-article (4), inscribed or printed in indelible ink on a white background, affixed on rigid, durable material and secured against damage from bad weather and other causes, and
(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or where there is more than one entrance from public roads, on or near all such entrances, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road, and shall not be obscured or concealed at any time.”
Article 19(3):
“Where a planning authority considers that the erection or fixing of a single site notice is not sufficient to comply with the requirements of sub-articles (1) and (2), or does not adequately inform the public, the authority may require the applicant to erect or fix such further site notice or notices in such a manner and in such terms as it may specify and to submit to the authority such evidence as it may specify in relation to compliance with any such requirements.”
Article 20:
“In addition to the requirements of article 17(1)(b), a site notice shall be maintained in position on the land or structure concerned for a period of 5 weeks from date of receipt of the planning application by the planning authority and shall be renewed if it is removed or becomes defaced or illegible within that period.”
Article 26:
“(1) Subject to sub-article (3), on receipt of a planning application, a planning authority shall –
(a) stamp each document with the date of its receipt, and
(b) consider whether the applicant has complied with the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25.
(2) Where a planning authority considers that a planning application complies with the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25, it shall send to the applicant an acknowledgement stating the date of receipt of the application as soon as may be after the receipt of the application.
(3) Where, following consideration of an application under sub-article (1)(b), a planning authority considers that –
(a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25 has not been complied with, or
(b) the notice in the newspaper or the site notice, because of its content or for any other reason, is misleading or inadequate for the information of the public,
the planning application shall be invalid.
(4) Where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met, the planning authority shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid.
(7) Sub-articles (3) and (4) shall not apply where the planning authority is satisfied that the applicant complied with the provisions of articles 17, 18 and 19 but that any site notice erected by the applicant has been maliciously defaced or destroyed by any person other than the applicant.”
Legal submissions:
On behalf of the applicants, Mr Hardiman has referred to the provisions of Article 17(1)(b) and Article 20 of the Regulations, which, taken together, require that a site notice be erected or fixed at the site and that it be maintained in position for a period of five weeks from the date of receipt of the planning application, namely in this case the 19th December 2003. It is submitted that this Court cannot be satisfied in this respect having regard to the preponderance of the evidence from what I refer to collectively as the neighbours that they saw no such notice during the period, and that it would have been impossible for them not to see it if it was there. The applicants in this case, the Marshalls and some of these neighbours have said that if they had seen the notice at the site they would have availed of their right to lodge an objection to the erection of two houses on the site. Mr Hardiman has suggested that the evidence on the applicants’ side is as clear and positive a statement as to the non-existence of a site notice as it would be possible to muster. He refers in particular to the evidence of Mr McGuire whose entrance gate is directly opposite where the notice is said to have been erected and yet he says that he saw none. In relation to the evidence of Mr Dempsey that he himself erected the site notice, and re-erected it on one occasion when he found that it was down, Mr Hardiman seeks to cast doubt on this evidence when he states that it is of note that in his affidavit evidence there was a paucity of detail contained in the affidavit as to the manner in which the site notice was erected, and that the detail as to this was extracted only in cross-examination.
He has also referred to a number of factual inaccuracies which emerged only in cross-examination – for example in paragraph 10 in relation to the placing of a new notice on the site; in paragraph 13 where it is suggested that before any work was commenced on the site, the planning conditions were complied with; and paragraph 15 where he stated that a commencement notice had been lodged with the planning authority before the commencement of work on the site.
In so far as the Notice Parties suggest that they are hampered and prejudiced by construction being halted pending the determination of these proceedings, Mr Hardiman submits that they cannot do so, since work ceased following the service upon them of an Enforcement Notice by the planning authority, and also they in fact commenced construction of the houses before they had complied with planning conditions, before they had lodged any commencement notice, and even before the final grant of planning permission had been issued on foot of the Decision to Grant dated 18th February 2004. In all of these circumstances it is submitted that it is not open to the Notice Parties to assert prejudice, so as to assist them in their submission that the balance of convenience would be in favour of the Court not exercising its undoubted discretion to grant the reliefs sought by the applicants in these proceedings.
Mr Hardiman has referred to the provisions of Article 26 of the Regulations which impose certain obligations on the Respondent. He submits that the provisions of Article 26(4) of the Regulations are specific in so far as it is provided that “where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met, the planning application shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid”(my emphasis). He refers also to the fact that in sub-article (5) of Article 26 the foregoing shall not apply where the planning authority is satisfied that the absence of the site notice or the non-compliance with articles 17, 18 and 19 is due to same having been maliciously defaced or destroyed by some person other than the applicant. It is submitted therefore that there is a clear obligation upon the planning authority to inspect the site, at least on one occasion during the 5 week period, since if it does not do that, it is not in a position to comply with its obligation to consider that the requirements of article 17(1)(b) or under article 19 have been met in a particular case. It is submitted that in view of the fact that the consequence of non-compliance is that the planning application “shall be invalid”, it must follow that the obligation is an absolute one, and that it is not possible for the authority to inspect sites on a random basis, as happens according to the evidence of Mr Dunne, since some possibly invalid applications will inevitably be granted where site notices have either not been erected at all, or have not been maintained for the required period of time. In other words, if the authority does not inspect it is not in a position to “consider”.
Mr Hardiman suggests that to be required to inspect the site to ensure that at least a site notice is in place on the date of such inspection is not an onerous obligation, and must be complied with. He submits also that the facts of this case demonstrate very clearly why Article 26 of the Regulations is in place, and that it is the only protection which the citizen has against a possible abuse of the system.
In relation to the evidence given by Mr Edward Daly, the unsuccessful bidder for the site who says that he saw the notice in place, Mr Hardiman submits that this evidence is not sufficient to overwhelm the evidence of so many other persons who have stated that they saw no site notice, and that it cannot be evidence that the site notice was in place for a 5 week period from 19th December 2003.
Mr Patrick Butler SC for the respondent has said that there is purely factual matter to be decided by the Court. In that regard he says that Mr Hardiman never put it to Mr Edward Doyle that he might be mistaken about seeing the site notice around and after Christmas time, and that he must therefore accept his evidence, and that there is no reason why this Court should not believe him. He also suggests that the evidence which is contained in the affidavits and in the cross-examinations of the deponents shows that it was in fact the Keoghs who have instigated this objection to the planning decision, and that it is they who told the others about the lack of a site notice, and that the Keoghs are prevented by the terms of the Contract signed by them for the sale of the site from making objection to the application for permission.
It has also been submitted that the obligations imposed on the Respondent by Article 26 of the Regulations do not extend to inspecting the site to ensure that Article 19 is complied with, and that under the latter it is only “when on inspection of the land………the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met” that the application is invalid. That, he submits, is not a positive obligation on the authority in all cases to so inspect.
On behalf of the Notice Parties, Mr Michael O’Donnell BL (led by Mr Colman Fitzgerald SC) adopted Mr Butler’s submissions and submitted also that the Respondent was under no statutory obligation to inspect a site to ensure that a site notice was in place, and that the extent of the obligation upon it was to ensure, as provided in Article 17 of the Regulations that any application received by the planning authority is accompanied by a copy of the newspaper notice, and a copy of the notice intended to be placed on the site to ensure that the contents of that notice complies with the requirements of Article 19. He submits that the authority can take it “on faith” that the site notice is going to be erected and maintained in position for the 5 week period.
As far as the evidence given to the Court is concerned, Mr O’Donnell has submitted that the onus of proof in relation to the failure to comply with the requirements as to the site notice is on the applicants and that they have not discharged that onus given in particular the evidence of Mr Edward Doyle and also of Mr Dempsey. He makes the point that if Mr Doyle is correct that on a day around Christmas he saw the notice, then if the representative of the authority also happened to inspect the site on the same date and saw the notice it would be impossible to say that the site had not been inspected, and therefore even if the site notice was immediately thereafter taken down in breach of the Regulation it would be impossible to say that the permission which followed was invalid. He submitted that the obligation, if any, on the authority must be reasonably interpreted and the authority must carry out its obligations, such as they may be found to be, in a reasonable manner. He submits that it is an impossible obligation for the authority to fulfil if the obligation is to ensure by inspection that on each day of the 5 week period the site notice was properly in place at the site.
Mr O’Donnell accepted that it would have been preferable if the Notice Parties had not commenced the work at the site until all matters were properly in place, such as compliance with the financial conditions and the lodging of a commencement notice, but he submits that at the end of the day these are matters between the authority and the Notice Parties and can be of no avail to the applicants.
Conclusions:
As far as the evidence is concerned, the conflict which arises between that given by Mr Dempsey and by Mr Doyle on the one hand, and the applicants and the other witnesses called on their behalf, on the other as to the existence or non-existence of the site notice, is impossible to reconcile, and it is impossible therefore for the Court to determine that factual issue with absolute certainty.
All the Court can do with certainty is state that it accepts completely the fact that even if the site notice was in place for the full five week period following the 19th December 2003, none of the persons who have given evidence saw it. I accept the sincerity with which they gave their evidence under cross-examination. A Court might endeavour to stretch to an inference that if, as it accepts to be the case, none of these persons saw the notice despite passing by it frequently on foot and being interested in such matters, then it must follow that while the notice may have been placed on a post and the post driven into the ground, it cannot have been in such a way or in a conspicuous position “so as to be easily visible and legible by persons using the road”, as is mandated by Article 19(1)(c) of the Regulations.
Equally while I have some criticisms of the contents of Mr Dempsey’s affidavit which certainly has been shown to contain a number of factual inaccuracies, those can be explained in all probability by the haste with which these documents sometimes have to be prepared and signed.
However, I would like to stress that the time constraints imposed on those involved in the legal processes cannot be an excuse or a reason for matters being deposed to on affidavit which on cross-examination have to be accepted as not quite accurate. An document which it is proposed to swear as an affidavit must be read and understood to be the complete truth by the proposed deponent prior to its swearing. A deponent must ensure that the contents of the document accurately reflect his/her instructions, since it is inevitable that in the drafting thereof by solicitor or counsel, some minor inaccuracies may occur, or even inaccuracies of a more serious nature, but falling short of any deliberate intention to mislead either the Court or the other side. I do not put what happened with regard to Mr Dempsey’s affidavit in the latter category at all, but it is useful to make the point that an affidavit is sworn evidence, just as if it were given viva voce in the witness box, and the importance of its accuracy cannot be over-stressed.
It is difficult to disbelieve Mr Dempsey’s evidence. Despite certain weaknesses which emerged in cross-examination, and despite the lack of detail in his affidavit as to the precise manner in which he fixed the site notice to the post, and drove the post into the ground in front of the ditch, and so forth, I have no basis for supposing that he being untruthful when he says what he says. He is a professional man, familiar with the planning process and is aware of the severe consequences of a failure to comply with the requirements in relation, inter alia, to the site notice.
It cannot be the case that he is being deliberately untruthful when he recounts his finding on one occasion that the post was down and re-erecting it immediately, because the consequences of swearing an untruth of such magnitude would be too awful to contemplate, and the Court would need very clear evidence of that before his sworn evidence could be disbelieved. Mr Edward Doyle has also sworn that the post was there on the occasions when he passed the site. Again, there is no suggestion that Mr Doyle has any reason to give untruthful evidence. In fact it could be said that if he has any axe to grind, he might grind it against the interests of the current development since he had wished to have his higher bid for the site accepted at the time of sale.
It is impossible therefore, as I have said, to reconcile these two conflicting accounts. I therefore have decided to base my decision not on any acceptance or rejection of the evidence which I have heard, but on the basis of whether the process by which the Decision of the Respondent dated 18th February 2004 was arrived at in accordance with the statutory and regulatory framework. If it is not, then the Decision is one which lacks legality and must be quashed.
It is beyond any dispute that the planning authority did not during the 5 week period concerned carry out any inspection of the site which enabled them to be satisfied that the site notice was in place and that it conformed to the regulations. That fact is admitted. All we know is that on the 4th February 2004, some 12 days or so after the expiration of the 5 week period, the site notice was not in place, and that fact was reported to the appropriate officer within the Respondent, and that he or she misinterpreted the standard form and believed that the form showed that a site notice was in place when the inspection took place. That misinterpretation is also a matter not in dispute.
Mr Dunne has stated that inspections are carried out on a random basis, but that between 80% and 90% of sites are in fact inspected. That means that 10% to 20% of sites do not get inspected and there is therefore a possibility, however long the odds, that the absence of any site notice will not be spotted before an application is granted. In those circumstances the persons whose interests are protected by the requirement to erect a site notice have received no protection at all. It is true that Article 17(1)(a) of the Regulations requires the insertion in a newspaper of an intention to apply for permission, but for that to be a failsafe method, or even a reasonable method of protecting the interests of persons likely to be affected. It would be necessary for citizens each day to purchase a copy of each newspaper in which such a notice might appear. It was presumably to give added protection to citizens likely to be affected by a planning permission, that the legislature introduced the additional safeguard of requiring a site notice to be put into position in a conspicuous manner at the proposed site.
It follows that the requirement of having a site notice in place and in conformity with the Regulations is a very important requirement. The purpose which it serves is a vital one, if the intention of the legislature that each person likely to be affected by a planning decision shall have the right to lodge an objection and have their views heard before a planning decision is made, is to be achieved. The Regulations themselves, to which I have referred, reflect the importance which is attached to the right of such persons to be on notice of an intended application. Firstly in Article 17(1) there is the requirement upon the applicant for permission to give notice in the newspaper and by the erection of the site notice. These notices must conform to strictly defined specifications as to clarity, visibility and content, as provided in Article 18 in respect of the newspaper notice, and as provided in Article 19(a)(b) and (c) in respect of the site notice. Article 19(3) goes on to provide that where the authority considers that a single site notice at a site is insufficient or “does not adequately inform the public”, the authority may require further steps to be taken as set forth therein. Article 20 proceeds to state that the site notice must be in place and maintained for a period of 5 weeks from the date of the application. That is a lengthy period from which the importance attached to the site notice can be gleaned.
Turning then to Article 26 it is apparent immediately that there are certain powers given to or duties imposed upon a planning authority in relation to applications made to it for planning permission. It sets out what shall happen on receipt of an application, such as sub-article (1) which provides that each document received will be stamped with the date of its receipt, and sub-article (2) which provides that the authority shall consider at that stage whether the applicant has complied with the requirements as to the content of the newspaper notice (Article 18) and whether the copy site notice submitted with the application conforms with Form No.1 of Schedule 3 of the Regulations (Article 19(1)(a) ), and whether the application documentation complies with Article 22, and possibly also Articles 24 or 25.
Once the authority is satisfied that the documents comply with these requirements, it is mandated by Article 26(2) then to send a receipt of same to the applicant. Where on the other hand having so considered the documents, the authority considers that any of these requirements as to the newspaper notice, the copy of the site notice intended to be erected, or the documents generally do not comply, then it is provided that the application “shall be invalid”.
Importantly for the present case, Article 26(4) then provides, as I have already set forth, that where on inspection of the land, the planning authority considers that the requirements of Article 17(1)(b) or 19 (the erection of an appropriate site notice, but not its maintenance for 5 weeks which is a requirement of Article 20), have not been complied with, the application “shall be invalid”, notwithstanding that it has been acknowledged pursuant to the provisions of sub-article (2) of Article 26. It is only where the authority is satisfied, as stated in sub-article (7) that the reason for the non-existence of the site notice on the date of inspection is due to malicious defacing or destruction that the provisions of Article 26(3) or (4) shall not apply.
I have set out these provisions in some detail again in order to highlight the care which has been taken to create a structured procedure for dealing with planning applications. Each step is clearly set out. It is clearly envisaged that the planning authority shall (not “may” or shall to the best of its ability” or “shall, as far as may be practicable”) on inspection of the land consider whether the requirements of the Regulations as far as the site notice is concerned have been complied with. The only matter left in some doubt is how the authority ought to ensure that the notice has been maintained in place for the five week period and not just for a period which happened to include the actual date of inspection. But in my view there is no room whatsoever to conclude that, because that matter is not clearly spelt out, there is no obligation as such to carry out an inspection at all within that five week period. The intention is clear from the wording of the Regulations themselves and the particular provisions to which I have referred. It is perhaps clearest in Article 26(4) of the Regulations. If no inspection is carried out within that five week period, and that is the admitted situation in this case, then the Decision subsequently contains a legal infirmity and must be quashed, since there has not been compliance with the provisions of s. 34(1) of the 2000 Act which provides:
“Where –
(a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) all requirements of the regulations are complied with,
the authority may decide to grant the permission subject to or without conditions, or to refuse it.” …my emphasis)
In the instant case, “all requirements of the regulations” have not been complied with, and it follows that the interests intended and sought to be protected by the existence of these regulations have not been protected by the planning authority. The consequences of non-compliance with Article 26(4) are spelt out in that article – the application “shall be invalid”.
Since all the regulations were not complied with, this application for permission was invalid, and it follows therefore that the Respondent had no power to make the Decision to Grant Planning Permission dated the 18th February 2004, and I therefore grant the relief sought at paragraph (a) in the Statement of Grounds filed herein on the 28th April 2004.
Kelly -v- Cork County Council & Anor
[2013] IEHC 122 (22 March 2013)
Neutral Citation [2013] IEHC 122
JUDGMENT of Kearns P. delivered the 22nd day of March, 2013
These proceedings concern the adequacy of site notices on lands at Moneycusker, Tomes, Macroom, Co. Cork in respect of which the notice party on 16th September, 2011 lodged a planning application for a development comprising an extension to an existing farm building. The respondent herein granted planning permission for the said extension on 11th November, 2011.
The applicant is a neighbour of the notice party and lives in residential property virtually opposite the site of the proposed development. He owns a small plot of land on the other side of the public road over which the notice party enjoys a right of way into the site of the proposed develepment. The proximity of the proposed development to the applicant’s dwelling house, and the location of the right of way enjoyed by the notice party are best understood by reference to the map annexed to this judgment. That map indicates an access or entrance point to the notice party’s lands from the public roadway opposite the applicant’s house. The right of way is over a dirt road the surface of which shows evidence of user by vehicular traffic. There is a gate at the road end of the right of way and another gate at the point where the right of way enters the notice party’s property at a point very close to the proposed development. As is also apparent from the map, there is a separate or main entrance to the notice party’s lands some distance away along the same road at or near a bend in the roadway.
It is common case that the notice party, in the context of his planning application, posted a site notice at the main entrance to his property but did not erect any site notice at the point opposite the applicant’s house where the right of way commences.
In these circumstances the applicant seeks an order of certiorari quashing the decision of the respondent to grant planning permission for the proposed development on the basis that there was non-compliance with the requirements of the Planning and Development Regulations 2001 (as amended).
Article 17 of the Regulations provides:-
“(1) An applicant shall within the period of two weeks before the making of a planning application –
(a) give notice of the intention to make the application in a newspaper in accordance with article 18, and
(b) give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19.”
Article 19 provides:-
“(1) A site notice erected or fixed on any land or structure in accordance with article 17 (1)(b) shall be –
(a) in the form set out at Form No. 1 of Schedule 3, or a form substantially to the like effect,
(b) subject to sub-article (4), inscribed or printed in indelible ink on a white background, affixed on rigid, durable material and secured against damage from bad weather and other causes, and
(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or where there is more than one entrance from public roads, on or near all such entrances, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road, and shall not be obscured or concealed at any time.
(2) Where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure, and shall not be obscured or concealed at any time.”
Article 20 provides:-
“In addition to the requirements of article 17 (1)(b), a site notice shall be maintained in position on the land or structure concerned for a period of 5 weeks from the date of receipt of the planning application by the planning authority, shall be renewed or replaced if it is removed or becomes defaced or illegible within that period and shall be removed by the applicant following the notification of the planning authority decision under article 31.”
The grounds upon which judicial review are sought may be summarised as follows:-
(a) The site notice at the main entrance to the development was in breach of Article 19 (1)(c) of the 2001 Regulations in so far as it was not erected “in a conspicuous position on or near the main entrance to the land or structure concerned from a public road … so as to be easily visible and legible by persons using the public road …”
(b) The notice party failed to comply with the requirements of Article 19 (1)(c) to erect a site notice “where there is more than one entrance from public roads, on or near all such entrances …” in circumstances where no sign was erected or fixed on or near the entrance to the right of way to the application site.
(c) The application failed to comply with the requirements of Article 23 (1)(a) whereby site or layout plans are required to show “bored wells, … and other features on, adjoining or in the vicinity of the land or structure to which the application relates …”. In particular, the application drawings failed to show a public well located 65 metres from the proposed site and adjacent to the right of way into the site, and a stream located 85 metres from the site and downhill from it.
(d) The application and/or the statutory notices failed to comply with the requirement to state the “nature and extent” of the proposed development having regard to the provisions of Article 17, 18 and 19 of the 2001 Regulations, as amended. In particular, the description of the proposed development as, “an extension to an existing farm building comprising of a slatted unit and machinery shed” did not accurately describe the nature of the proposed use of the machinery shed, namely the storage of equipment and plant for hire, which is a commercial, as distinct from agricultural, use.
Both sides to the case agreed that if the requirements of Article 19 with regard to the site notice were not complied with, the decision by the respondent to grant permission in this case would inevitably fall to be quashed. The hearing before this Court thus focused almost exclusively on that issue.
In its Statement of Opposition, the respondent contends that the site notice which had been posted by the notice party was fully in compliance with the requirements of Article 19 and, in particular, the notice party was under no obligation to erect any other site notice. The respondent’s defence may be summarised as follows:-
(a) The site notice was erected on or near the main entrance to the land or structure concerned from a public road in accordance with Article 19 (1)(c).
(b) The requirement to erect site notices on or near all entrances from public roads, only applies where there is more than one entrance from public roads (plural). If there is more than one entrance to the site, such entrances in this case were on the same public road, namely the local secondary road.
(c) If, which was denied, there is a multiplicity of accesses to the development site, the requirement is to erect a site notice on or near entrances from public roads and not at access points from public roads. The right of way was an access point and not an entrance.
(d) If (which was denied) there were other access/entrances to the site, the site does not adjoin a public road at such points and there is no requirement to erect a site notice at such accesses/entrances.
It was contended by the respondent that the only entrance/access where the lands adjoin a public road is the entrance where the site notice was erected.
Alternatively, in so far as there were access/entrances at or near the applicant’s property, the lands at such points of access were not under the ownership or control of the notice party so that he was precluded from erecting a site notice on such lands which do not form part of the site.
In all these circumstances, it was contended that the erection of a single site notice was sufficient and in accordance with Article 19 of the Planning and Development Regulations 2001, as amended.
DECISION
It is clear that Article 17 of the Planning and Development Regulations 2001 (as amended) requires compliance with both the newspaper notice and site notice requirement under Article 17(1) of the Regulations. In Marshall v. Arklow Town Council [2004] 4 I.R. 92, Peart J. stated as follows at p.122:-
“It is true that Article 17 (1)(a) of the Regulations requires the insertion in a newspaper of an intention to apply for permission, but for that to be a fail-safe method, or even a reasonable method of protecting the interests of persons likely to be affected, it would be necessary for citizens each day to purchase a copy of each newspaper in which such a notice might appear. It was presumably to give added protection to citizens likely to be affected by a planning permission, that the legislature introduced the additional safeguard of requiring a site notice to be put into position in a conspicuous manner at the proposed site.”
In this case the notice party only erected or fixed a site notice on the gate post at the entrance to his dwelling. This gate post is located at a distance of between 5 and 6 metres from the metal surface of the public road and is somewhat recessed from it. While under Article 19 (1)(c), the site notice is required to be erected or fixed “in a conspicuous position”, so as to be “easily visible and legible by persons using the public road”, I do not accept the applicant’s submissions that the site notice at the main entrance to the applicant’s property failed to satisfy tests of visibility or legibility. It was further submitted that the site notice which had been erected must be “easily visible” by persons travelling the public road in both directions. It was submitted that the notice was only visible by persons using the public road in one direction. I think this is an over-exacting interpretation of the statutory requirements. The requirement is not to be measured against what someone passing by motor car along the roadway might or might not see. In reality the kind of site notice employed in this jurisdiction admits only to being read by pedestrian traffic. This is because of its size and dimensions. I am of the view that this particular site notice complied with the requirements of Article 19.
The real contest in this case turns on whether or not the requirements of Article 19 (1)(c) were complied with. More particularly, was there compliance with those words of Article 19 (1)(c) underlined hereunder which require that a site notice be erected in a conspicuous position on or near the main entrance to the land or structure concerned of a public road, or where there is more than one entrance from public roads, on or near all such entrances ?
Quite apart from the technical requirements of Article 19, it is common case that the notice party approached his neighbour, the applicant herein, prior to taking any steps in respect of the planning application to ascertain if Mr. Kelly was agreeable to the development, or at least would acquiesce in it and not object. Mr. Kelly made clear his strong objection to such a major development being carried out in close proximity to his dwelling house, not least because in his view the applicant had substantial other lands which would have permitted him to locate the development elsewhere than at the proposed location. It is, I think, fair to describe this particular entrance as being almost straight in front of Mr. Kelly’s dwelling house. Of course, had a site notice been posted at that location it would have been visually prominent from the perspective of the applicant in exiting his own property.
While the respondents have argued with great vigour that the entrance opposite the applicant’s house is nothing more than an “access” point, I am satisfied from the photographs, map and other evidence placed before the court that it is both an access and an entrance to the development site and I accept the applicant’s submissions in this regard. A photograph exhibited in the third affidavit of the applicant shows the notice party closing the gate at the entrance to the right of way on 28th February, 2012. The notice party himself does not deny using the right of way, although he contends it is used by him on a limited basis only. The fact of limited user does not convert the entrance from the public road into something else merely by dint of the fact that it is used on a limited basis.
Counsel for the applicant argued that the reference to “from public roads” in the passage underlined in Article 19 (1)(c) should, in accordance with the Interpretation Act 2005, be read to include both the singular and the plural. I agree. It seems clear to me that this particular portion of the regulation was worded to cover a situation where a development site might have several entrances bounded by more than one public road. For example, if the applicant’s lands were bounded by another roadway some miles away, and if there was an entrance to the site from that location, there would clearly be an obligation to post a site notice there also. However, the critical consideration is not just the number of roads but the existence of more than one entrance and in this context I am satisfied that the words “public roads” must be interpreted as including a single stretch of roadway, as otherwise the intention of the statutory requirement could be nullified. The submission advanced on behalf of the respondent that an applicant effectively can ‘opt’ for any one of the three alternative scenarios outlined in Article 19 (1)(c) because the word “or” separates them in the statutory provision strikes me as illogical. The provisions of Article 19 (1)(c) are clearly addressed to different “on the ground’ situations and the obligations on an applicant clearly hinge and depend on which particular ground conditions apply in his case. This is a case where there are two entrances from public roads.
I find it equally difficult to accept the notice party’s contention that it was impossible to post a site notice at this particular entrance because the notice party did not own the lands in question. It is clear that the notice party never sought the permission or consent of the applicant to the posting of a site notice at this location. In the alternative I would in any event be of the view that the consent of the applicant was not required as the notice party must be taken as enjoying all ancillary rights as are reasonably necessary to the exercise and enjoyment of his easement. (See Bland, Easements (2nd Ed., Roundhall,). paras 2-45 at pp. 63-64.) The posting of a site notice for a mere 5 weeks must be seen as such a right.
This brings me to the fourth and final point. The respondent contends that the requirement under Article 19 (1)(c) does not apply in relation to any second entrance because the land or structure to which the planning application relates in this case does not adjoin a public road. In this regard the respondent relies on Article 19 (2) of the regulations.
However, counsel for the applicant contends, and I accept, that the main entrance to the land or structure is from a public road and the line delineating the application site includes the main entrance/access to the development which itself adjoins a public road. Therefore, I am satisfied that the relevant land or structure does adjoin a public road. Furthermore, the right of way forms part of the land to which the application relates. It therefore follows that Article 19 (2) is not applicable in the present case as it only applies “where the land or structure to which a planning application relates does not adjoin a public road …”. Accordingly, the requirements under Article 19 (1)(c) are applicable where there is at least one entrance from the public road. There is no requirement that the application site should adjoin the public road at the point where there is a second entrance from public roads before the site notice requirement under Article 19 (1)(c) applies.
For all these reasons, I am satisfied that the failure of the notice party to post a site notice at the entrance opposite the applicant’s house amounted to a non-compliance with the requirements of Article 19. It follows therefore that the decision to grant planning permission in this case must in consequence be quashed.
I should in conclusion perhaps briefly address the contention that the application drawings failed to identify significant features as required by Article 23 (1) of the Regulations. Article 23 (1)(a) provides as follows:-
“(1) Plans, drawings and maps accompanying a planning application in accordance with article 22 shall all be in metric scale and comply with the following requirements:-
(a) site or layout plans shall be drawn to a scale (which shall be indicated thereon) of not less than 1:500 or such other scale as may be agreed with the planning authority prior to the submission of the application, the site boundary shall be clearly delineated in red, and buildings, roads, boundaries, septic tanks and percolation areas, bored wells, significant tree stands and other features on, adjoining or in the vicinity of the land or structure to which the application relates shall be shown …”
In the instant case the application drawings failed to identify a public well located 65 metres from the proposed site and adjacent to the right of way into the site and also failed to display the stream located 85 metres from the site and downhill from it. These omissions were, in my view, material departures from the requirements of Article 23(1)(a).
O’Shea v. Kerry County Council & Ors
[2003] IEHC 51 (01 September 2003)
JUDGMENT of Mr. Justice Aindrias O Caoimh delivered the 1st September, 2003.
The applicant resides at Greenane, Kenmare, County Kerry and describes herself as a widow and seeks the following reliefs:
1. An order by way of certiorari quashing the grant of planning permission which issued by the respondent on the 19th November, 2002.
2. A declaration that the respondent acted ultra vires in deciding to grant and then subsequently granting the aforesaid planning permission to the first named notice party in circumstances where the respondent knew or ought to have known that the site notice was not erected or fixed on the lands, the subject matter of the application in accordance with art. 14(1)(b) of the Local Government (Planning and Development) Regulations, 1994 or at all.
3. A declaration that the respondent acted ultra vires in granting the aforesaid planning permission to the notice party in circumstances where the respondent
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knew or ought to have known that the site notice was not maintained in position on the said lands for a period of at least one month after the making of the planning application in accordance with the provisions of arts. 16(1), (4) and (5) of the Local Government (Planning and Development) Regulations, 1994.
4. A declaration that the respondent acted ultra vices in granting the aforesaid planning permission to the notice party in circumstances where the respondents knew or ought to have known that the position of the site notice on the land or structure concerned was shown in a manner that did not comply with the provisions of arts. 16 (1) to (5), where the site notice was positioned (and shown to be so positioned on the plan accompanying the planning permission) so as it was not easily visible and legible to persons outside the land or structure or was not securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from the public road, or in any other part of the land or structure on the public road, so as to be easily visible and legible for persons using the public road.
The grounds upon which the application is sought include the following:-
1. The notice party Elmpath Limited applied for a planning permission to the respondent for permission to build 29 “ancillary” holiday homes with a proprietary treatment system at Greenane, Templenoe, in the County of Kerry in December, 2001.
2. Article 14 (1) (b) of the Local Government (Planning and Development) Regulations, 1994 (which apply herein) provided that, not later than the
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making of the planning application, the applicant give notice of the application by the erection and fixing of a site notice in accordance with art. 16.
3. Article 16.1 specifies that “A site notice erected or fixed on any land or structure pursuant to art. 14(1)(b), (a) shall be painted or inscribed, or printed and affixed on a durable material, and (b) subject to sub-article (2), shall be securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road.”
4. Article 16(2) provides “where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure.”
5. Article 16(3) provides; “the position of the site notice on the land or structure concerned shall be shown on a plan accompanying the planning application.”
6. Article 16(4) provides that the contents of the site notice shall indicate that the planning application may be inspected at the offices of the planning authority.
7. Article 16(5) provides that a site notice shall be maintained in the position on the land or structure concerned for a period of at least one month after the making of the planning application and shall be renewed or replaced if it is removed or becomes defaced or illegible in that period.
8. The first named notice party herein failed to provide a site notice in accordance with arts. 14 and 16 of the Regulations of 1994. In particular the site notice was positioned in such a way that it was not in a conspicuous position or near the main entrance to the land or structure concerned from a
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public road, or in any part of the land or structure adjoining the public road so as to be easily visible and legible by persons using the public road and further, even if an argument can be made that the land or structure to which the planning application related did not adjoin the public road, the site notice was not erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible for persons outside the land or structure as provided by art. 16(2).
9. The positioning of the said notice was marked on a plan accompanying this planning application and was shown to be at a point 23 metres from the nearest boundary and hundreds of yards from the public road.
10. The said site notice was not close to any public road and was not easily visible or legible by persons using the public road or in the alternative was not easily visible or legible by persons outside the land and structure.
11. In the premises the notice party failed to erect or fix a site notice on the said lands in accordance with art. 14.1 (b) of the Local Government (Planning and Development) Regulations or at all.
12. There was a complete failure to comply with the provisions of art. 16(5).
13. The respondent failed to request or require that the notice party erect and fix a proper site notice in accordance with arts. 14 and 16 on the lands, the subject matter of the planning application.
14. Notwithstanding that there was a clear and flagrant breach of art. 14(1)(b) and art. 16. (1) to (5) of the Local Government (Planning and Development) Regulations, 1994 and further notwithstanding that no request was made by the respondent to the notice party to erect and fix the said notice on the said lands in accordance with the provisions of arts. 14 and 16, the respondent
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proceeded with the planning application which culminated in the grant of a planning permission to the notice party in respect of the said lands on the 10 November, 2002 which said decision was dated the 17th October, 2002.
15. The applicant herein is a neighbouring landowner to the said land. The sole access to these lands is provided by a right of way granted by the applicant’s son, Donal O’Shea, to the company known as Trentdale Limited which is the owner and operator of the Ring of Kerry Golf Club and its assigns.
16. The said right of way does not confer any rights to exercise the right of way in respect of the building of houses of the nature, type and amount that is envisaged and provided for in the said planning application and planning decision.
17. The applicant was completely unaware of the planning application because the mandatory provisions stipulated by the 1994 Regulations had not been complied with.
18. The applicant would have objected to the said application.
19. In the premises the applicant contends that the site notice was positioned so as to prevent persons interested in objecting to the planning application or making representations in respect of the said planning application from so doing, and the position of the said site notices was meant to defeat the intention of the 1994 Regulations.
20. The applicant and other persons in the locality have no right of access onto the said lands which are private lands and the applicant did not see any such site notice.
21. In the premises, the first named notice party’s failure to erect a proper site notice on the lands, the subject matter of the planning application, and the
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respondent’s failure to require a site notice to be erected, the respondent’s failure to halt the planning application, their decision to continue with the planning application and their decision to grant planning permission and notify the grant of planning permission in respect of the said lands was unlawful, ultra vires and by reason thereof the applicant had been wrongfully denied her right to make submissions to the respondent on the said planning application and further has been denied her rights to appeal the respondent’s grant of planning permission.
22. The decision by the respondent to continue with and conclude the application for planning permission at a time when it was aware that no appropriate site notice had been erected or fixed to the site is in breach of arts. 14.1 (b) and 16(1) to (5) of the 1994 Regulations (the said breach being identified in the plans accompanying the planning application) was ultra vires, void and wrong in law and grossly prejudicial to the rights of the third parties, such rights having been clearly acknowledged by the Oireachtas when passing into law the 1994 Regulations and in particular arts. 14 and 16 dealing with the erection and fixing of site notices on lands the subject matter of planning applications.
23. The applicant is a person substantial in the bringing of this application being a neighbouring landowner whose rights and interests are being affected by the said decision (including a decision to grant permission where access is specifically identified as coming over a right of way granted by the applicant to Trentdale Limited being the owner of the Ring of Kerry Golf Club whose assign it must be assumed is the first named notice party. The applicant has in the premises substantial grounds for contending that the decisions are invalid and ought to be quashed. The applicant further states that she shall if
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necessary rely on the provisions of s.54 (4) (c) (ii) of the Planning and Development Act, 2000 and shall seek the liberty of this Court to extend the time for the bringing of this application.
24. It is stated that the applicant was wholly mislead and deceived by the nature and positioning of the site notice and there is in the premises good and sufficient reason for extending the time for the bringing of this application.
Affidavits have been sworn by the applicant in verification of the statement of grounds of application herein. In her affidavit, the applicant states that she owns certain lands situated at Greenane, Templenoe, Kenmare, County Kerry. A map of these lands is held and exhibited by her and it appears that the lands in question are near to the lands the subject matter of the proposed development herein but separated from same by the Ring of Kerry Golf Club. She says that a number of years ago, Trentdale Limited a company involved in the development of a golf course, specifically the Ring of Kerry Golf Course, purchased certain lands from her late son, Donal for the development of a golf course. She states that as part of the overall agreement between her son and the company he granted a right of way over part of the land which she now owns. Trentdale Limited are the owners and operators of the golf club. The impugned decision refers to the construction of 29 holiday homes and the installation of a proprietary sewage system at Greenane, Templenoe, Kenmare. She says that the right of way to this development is the same right of way which her son granted to Trentdale Limited. She says that had she been aware of the planning application she would have objected to same and would have appealed the grant of any planning permission to An Bord Pleanala. However she admits that at no stage was she aware of this planning application. She says that she and her neighbours
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were not aware of the planning application. It appears that the site notice in question was erected on the subject lands but it is contended that it was not erected at or near the boundary of the proposed development and that it was not erected or maintained in a position that was clearly visible and could be read by persons outside the land or by persons using the public roadway. The applicant in her affidavit says that she believes that the intention of the notice party herein was to deny the rights of objectors who might have legitimately objected to the development. She says that she only became aware of the planning permission when neighbours told her on or about the 30th January, 2003 that the same had been granted. She says that in these circumstances she was unable to bring these proceedings within two months of the date of the grant of planning permission or the date of notification of the grant of planning permission. She contends that she had at all times substantial grounds for opposing the planning permission and she contends that she has a substantial interest in bringing this application. The applicant relies upon the fact that the site notice identified on the planning application appears to indicate that it was positioned within the area of the proposed development and was 23 metres from the nearest boundary. She contends that the respondent should have required the proper positioning of a proper and adequate site notice but failed to do so. She says that no such site notice was provided in the manner as laid out in the regulations. The applicant contends that no other site notice was erected. She states that she is extremely aggrieved by the manner in which this application was made and furthermore, by the manner in which Kerry County Council decided to grant planning permission in the light of clear evidence that the site notice requirements had not been complied with. She says that the place where the site notice was erected cannot be seen from the public road or cannot be seen or read from adjoining lands and was certainly not seen by her
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neighbours. She says that the development is a highly significant development to which she would have strenuously objected.
An affidavit has been sworn by Mr. Gerard O’Keeffe, an engineer on behalf of the applicant, in which he indicates that he inspected the planning file in the office of the respondent. From an inspection of the drawings accompanying the application he says that it showed that the location of the planning notice was north east of holes numbers two, ten and eight on the existing golf course and was within the area of the proposed development and the planning notice was located 27 metres from the edge of the site boundaries. He says that the site location map lodged showed the location of the planning notice as being within the area for the proposed development and being 28 metres from this boundary. He says there was no other site notice on any of the drawings submitted. He refers to the fact that there was a revised planning notice placed in the Irish Examiner on the 14th February, 2002. Mr. O’Keeffe says that if the site notice was placed as per the drawings submitted, then the notice was not clearly visible and legible by persons outside the boundaries of the proposed development.
Further affidavits have been sworn on behalf of the applicant by her solicitor Colm Murphy. In his affidavit he indicates that the applicant contacted him on the 30th January, 2003 when she had discovered that a planning permission had been granted by the respondent herein. He indicated that the steps taken by him included an examination of the file and writing of letters to Trentdale Limited, Hayes and Sons, Solicitors, whom he knew acted for Trentdale Limited, and to the Planning Section of Kerry County Council and to Elmpath Limited. He retained the services of Mr. O’Keeffe, the engineer, to inspect the planning file and to ascertain the distance between the planning notice and the boundary of the area of the proposed
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development. Mr. Murphy indicates that he carried out a company search of Elmpath Limited and learned that it was registered in the United Kingdom and had been dissolved in 1998. He indicates that a further search noted that the only company still in existence that included the words Elmpath in its title was a company registered in Ireland under company registration number IR275193. The name of this company was Elmpath Holdings Limited. He indicated that he does not know and cannot tell from the planning file whether the correct notice parry in this case is Elmpath Limited or Elmpath Holdings Limited or both. He says that if the name of the company used for the planning application was the name of a dissolved company with whom the actual applicants or the beneficial owners of the land had no knowledge or contact than the entire planning application and consequently the decision should be void. He says that from enquiries that he has made he has not met one single person who was aware of the planning application until well after the decision had been granted.
An affidavit has been sworn by Mr. Dominic Reid the company director of Elmpath Holdings Limited, who resides in London, England. In his affidavit Mr. Reid points out that the applicant’s challenge to the respondent’s decision was made over eighteen weeks after the original decision on the 17th October, 2002. Mr. Reid indicates that site notices were erected at the time the application was submitted to Kerry County Council. He says that one notice was identified on the site plan and the other was placed at the main road boundary which is some three quarters of a mile from the site and was not covered by the same site map. He says that this latter site notice was erected just west of the stone wall entrance to the golf club and was clearly visible from the road. He states that the site notice was erected by Mr. Peter Kopik, consulting engineer. The second site notice was placed beside the entrance to the golf club as it was deemed the most appropriate location fronting the main road. He says
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that the signs remained in situ for at least three months and were replaced on the 14th February, 2002 when revised notices were advertised. He says that these revised notices were necessary due to an error with the townland name on the original application. He says consequently it was necessary to place a fresh notice in the newspaper on the 14th February, 2002 and both site notices were replaced with amended notices. Mr. Reid says that planning inspectors from the respondent County Council visited the site on at least five occasions and advised as to where the site notices should be located. The notices were placed in accordance with their advice. The planning application was extensively discussed with public representatives, auctioneers and other people in the area and the plans were available for inspection in the club house of the golf club. He says that the proposal for the construction of the holiday homes was marketed throughout 2002 and he believes that it was common knowledge throughout the area. The proposals were also advertised on the golf club’s website throughout 2002 when the application was being considered and a substantial database with inquiries was compiled. Mr. Reid contends that a wide number of other persons in the County were aware of the application and the decision was published in The Kerryman at the time. He said that it received headline coverage in the newspapers planning section and it generated a lot of enquiries and comments at the time. He says that all local representatives and T.D.s were aware of the application as was Dromquinna Manor Hotel which is based one mile from the golf club entrance and with whom there were various meetings concerning the joint marketing of the site.
Mr. Reid points out that the golf club’s vice captain is married to the applicant’s cousin and was aware of the application from the outset and spent a lot of time negotiating with the applicant’s neighbours on behalf of the notice parties for an
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alternative access for construction traffic over adjoining lands. He points out that these negotiations involved a number of neighbours of the applicant including the Falveys who are first cousins of the applicant. He then points out that these are all neighbouring landowners of the golf club. He says that all the local auctioneers were informed of the planning application, as were some of the contractors who would be interested in the construction work. Mr. Reid points out that the application for planning permission took eleven months to go through and, during this period from the date of the application until the end of March, 2002 a sign was placed at the front entrance to the golf club. He expresses the belief that the applicant would have had to pass this sign on a large number of occasions when she left her residence between December, 2001 and March, 2002. He says that in the circumstances, if the applicant failed to notice the sign, this was due to her own inadvertence. Mr. Reid points out that he met with Mr. O’Keeffe the applicant’s engineer and his own engineer in May, 2002 when the proposals of the planning application were discussed. He contends that a large number of people in the county were aware of the application. With regard to the true identity of the applicant company he points out that the applicant’s name is Elmpath Holdings Limited an Irish registered company rather than Elmpath Limited but that as a result of a mistake the application was inserted in the name of Elmpath Limited.
Mr. Reid contends that should this court grant leave to the applicant to extend time to challenge the decision of the respondent, the notice party would suffer considerable prejudice. He indicates the steps taken to date in regard to the development of the site.
Mr. Reid points out that significant bank loans have been drawn down by the development company and associated companies and the directors in order to fund the
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development. He says that any delay in the development would have significant financial implications for the notice party and for the directors of the company. Secondly he says that in order to comply with the Finance Acts governing the scheme for the development of holidays homes, it would have been necessary for the entire development to be finished by December, 2004. He says that this is the latest date for completion. Any delay to the work will cause severe prejudice to the notice parties in seeking to complete the development prior to that date. He says that the notice party could be forced into receivership if the scheme is not completed by December, 2004. Much of the affidavit of Mr. Reid is taken up with matters which are argumentative in nature and I do not propose to refer to same. Mr. Kopik has sworn an affidavit in which he indicated that in August, 2001 a meeting was held with planners of the respondent county council at which the signage for the planning application was discussed. He says that to avoid any confusion, the planners from the respondent counsel agreed on the position of the planning application notice directly on the development site in question. He says that this was identified on the 1 to 500 site plan for the development. He says that he put up this notice in the agreed location. He says that he also placed another notice on the main road boundary immediately west of the ring of Kerry Golf Club main entrance which was clearly visible from the road. He exhibits a copy of a photograph of the front of the golf club and has indicated by means of an X where he says he placed the site notice. Mr. Kopik points out that due to an error with the townland’s name on the original application, it was necessary to place a fresh notice in the newspaper on 14th February, 2002 and, for this purpose, he replaced both site notices with the correct amended notices required under the new application. Mr. Kopik has exhibited a copy of the site notices which besides containing the clerical error with regard to the name of the company Elmpath
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Holdings Limited indicates that the application was for the erection of 35 ancillary holiday homes.
The applicant has sworn a supplemental affidavit in which she addresses the affidavit of Mr. Reid. She concedes that she never saw the site notice that was allegedly erected at the main road boundary. She says that the gate at the main road boundary is the way into her house. She passes this way on a regular basis and on at least a number of occasions each week. She says that she never saw the site notice that was allegedly based there. While this affidavit is essentially argumentative in nature, the applicant again indicates her lack of awareness of the planning application and contends that she is not aware of any person who was aware of the planning application while it was going on. Again the applicant contends that had she been aware she would have made a planning objection to the proposal and would have appealed the matter to An Bord Pleanala in the event that the permission was granted by Kerry County Council. She concedes that the use of an incorrect name did not confuse or mislead her during the course of the application as she was simply not aware of the application. Had she been aware of the application she states that her inquiries would have lead her to discover the use of the incorrect name and she would have used this as part of her objections. A number of affidavits have been sworn by other residents in the area who indicate that they did not observe this notice at the entrance to the golf club and that they pass that way on a regular basis. They contend that no planning notice was ever erected.
A further affidavit has been sworn by Mr. Reid which is entirely argumentative in nature.
On behalf of the notice parry an affidavit has been sworn by Mr. Ian Morton of Garranes, Bonane, Kenmare, Co. Kerry. He says that he is a green keeper for the
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Ring of Kerry Golf Club. He says that he was responsible for the maintenance and upkeep of the notice which was located at the entrance to the golf club. He says this was slightly to the west of the stone wall entrance and was clearly visible from the road. He points out that this site notice remained in situ for a period of three months and was replaced on 14th February, 2002 when revised notices were necessitated owing to an error in the description of the townland’s name on the original application. He confirms that the revised site notice was erected and maintained in this position until the end of March 2002.
Submissions.
On behalf of the applicant it is submitted by Mr. James Macken S.C. that the site notices in question did not comply with the requirements of the planning regulations. In particular reference is made to precise terms of the regulations and the fact that by reference to the location of the notice on the site of the development it would have been illegible from the boundary of the said lands. On this basis it is contended that the notice in question was insufficient to comply with the provisions of art. 16 of the 1994 regulations. It is submitted that the applicant has shown a certain interest and substantial grounds.
On behalf of the respondent council it is submitted by Mr. Dermot Flanagan S.C. that the role of the county council is to act as a watchdog and not as a bloodhound. It is submitted that the applicant must discharge the requirement to show her potential interest and substantial grounds. It is submitted that the applicant cannot have been mislead by the terms of the notice in question insofar as she never saw the notice in the first place. It is submitted that the purpose of a site notice is to put the public on inquiry. It is submitted that the site notice such as that erected on the lands
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to be developed would have put someone on notice of inquiry presuming they saw the notice. Counsel refers to the decision of Kelly J. in Blessington and District Community Council v. Wicklow County Council [1997] 1 I.R. 273 in which criticism of the newspaper notice was raised. In that case Kelly J. stated that the notice would alert any vigilant interested party to see what was contemplated. He continued:
“If they wish to have further information as to precisely what was envisaged, they could have inspected the plans submitted with the planning application.”
Further reference is made to the fact that in that case Kelly J. observed that the ignorance of the applicant and its supporters was not caused or contributed to by the Act wrongful or otherwise of the developer. They simply never saw the newspaper notices in question. Mr. Flanagan furthermore refers to the decision in the case of Springview Management Company Limited v. Cavan Development Limited [2000] 1 ILRM 437. In that case O’Higgins J. observed that a notice in respect of which complaint has been made in relation to its detail, would have alerted any vigilant or interested party to what was being contemplated and that any person, who wanted further information as to precisely what was envisaged, could have inspected the plan submitted with the application.
It is submitted that the applicant in the instant case has not discharged the requirement of showing substantial grounds. Counsel further refers to the requirement in s.50 of the Act of 2000 that the applicant show a substantial interest. It is submitted that this is something that the applicant has failed to show. Counsel refers to the fact that the applicant did not see either notice and that both statutory notifications passed her by. It is submitted that she relies on ex post facto non compliance. Counsel refers to the fact that the applicant complains that she is
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aggrieved by the manner in which the application was made and would have objected strenuously to the application had it been known to her.
On this basis it is submitted that the applicant has failed to show anything more than the interest of the general member of the public and has in particular failed to show a substantial interest in the matter. Counsel refers to the fact she does not indicate what the effect on her would have been had she seen the site notice. On this basis it is submitted that she has not been directly effected. Counsel refers to the fact that the relief sought by the applicant is purely discretionary relief. Counsel refers to the case of the State (Doyle) v. Carr [1970] I.R. 87 and in particular to a passage of the judgment at p. 93 thereof in which Henchy J. referred to the fact that the prosecutor in those proceedings did not rank as a person aggrieved such as to be entitled to certiorari other than as a matter of discretion and was not entitled to the relief ex debito justitiae. On this basis it is submitted that the court should address the issue of discretion and should refuse the applicant the leave which she seeks.
On behalf of the developer, the notice party herein submitted by Mr. Maurice Collins S.C. that mere ignorance is not of itself ground for giving leave or extending the grounds.
Paragraph 16 of the principle affidavit of the applicant is referred to, in which the applicant contends that the intention of the notice party herein was to defeat the right of objectors who might have legitimately have objected to the development. It is submitted that there is no basis for this contention. Reference is made to the notice as published in the Irish Examiner newspaper, the site notice having been erected in terms agreed and at a location agreed with the planning authority, and submits that there has been no suggestion of any inadequacy in the terms of the notice with regard to the description of the proposed developments. Counsel refers to the fact that it is
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disputed that the consultations with councillors and T.D.’s in the area or that the decision to grant planning permission received extensive publicity at the time and that the plans for the development were published in the clubhouse at the golf club. Counsel refers to the fact that the applicant’s case is constructed entirely by reference to the planning file, in seeking to ascertain whether the site notice was erected at a position either 23 metres or 27 metres from the boundary to the lands to be developed. It is submitted that if the site notice was the only notice in question the applicant would not have any grounds of complaint as she never saw the notice in any event. It is submitted that the applicant could not argue that she had been prejudiced either by the location of same on the land or by its terms. It is submitted that the applicant has failed to show any prejudice having been suffered by her by reference of the location of the site notice. Counsel asserts to the fact that it is of some importance that the location in question of said notice was an agreed location with officers of the respondent’s Planning Department. On this basis it is submitted that there was no concealment on the part of the notice party in its planning application. It is submitted that the applicant’s contention is therefore vexatious. It is submitted that the evidence put before the Court by the applicant and by witnesses on her behalf, to show that they did not see the site notice or the notice published at the entrance to the golf club, in no way disposes of the evidence put before the court by Mr. Reid and by Mr. Morton to the effect that there was in fact a notice erected at and maintained at the entrance to the golf club. On this basis it is submitted that this evidence is sufficient to refute the applicant’s case.
With regard to the issue of time counsel refers to the fact that the application was not bought until four months after the date of the decision in question. Counsel refers to the consideration of extensions of time, and submits that this is a matter of
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discretion for the Court. It is submitted that the objection raised on behalf of the applicant is entirely technical in nature. With regard to the assertion on the part of the applicant that had she known of the application she would have objected to same and had the application been allowed she would of appealed same to An Bord Pleanala it is submitted that this is insufficient.
It is submitted that it is necessary for the applicant to show a substantial interest in the matter having regard to the requirements of s.50 of the Act of 2000. It is submitted that the applicant has failed to establish any evidence of prejudice on her part. She states that she owns land nearby but does not state anything more in this regard or give details as to how the development would affect her. Counsel refers to the obligation to move in a timely fashion and refers to a number of authorities in this regard. Counsel refers to the prejudice that would be suffered by the notice party if the development in question is stopped at this stage. In this regard counsel submits that while the court has a discretion to enlarge time, the prejudice alleged should be taken into account by the court in assessing whether it should in its discretion enlarge the time for the applicant to bring this application.
It is submitted that the applicant has failed to show substantial grounds in support of her contention that the decision in question should be quashed. Counsel refers to the fact that the right of way to the golf club was one granted by the applicant’s son in favour of Trentdale Limited. Counsel stresses that this court cannot grant the applicant leave unless it is satisfied that she has shown substantial grounds and furthermore that she has a substantial interest in the matter.
In reply Mr.Macken on behalf of the applicant refers again to the applicant not having seen the site notice and would have objected had she seen same and would of appealed to An Bord Pleanala had she been aware of the decision to grant planning
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permission. With regard to the issue of time it is submitted that some delay was contributed to by the time taken in establishing the true identity of the notice party. It is submitted that what is relied upon by the applicant is what was found on the file which shows that the one statutory notice on the lands was not in accordance with the requirements of the planning regulations. Counsel referred to the mandatory purpose of the site notice. With regard to Blessington and District Community Council v. Wicklow County Council [1997] 1 I.R. 273 as relied upon by counsel for the respondent, it is submitted that this case does not address the issue of notice incorrectly placed on the lands. Counsel refers to the fact that the applicant does not believe that a notice was erected and maintained at the entrance to the golf club. Counsel also refers to Kenny v. An Bord Pleanala [2001] 1 IR 565 in which it is indicated that a court in considering whether to grant leave may make some evaluation of the factual basis of the case. Counsel refers to the fact that there is a plain conflict whether there was a notice in question erected here. Counsel submits that had a notice been erected it would have been seen by the applicant or the witnesses who have sworn affidavits on her behalf.
With regard to the question of time and any extension time, counsel refers to s.50 of the Act, 2000. With regard to the position of the applicant it is submitted that the applicant is stated to be an adjoining land owner and she is the person over whose property a right of way exists. On this basis it is submitted that she has shown sufficient interest and that she has shown good and sufficient reasons why she should be granted the relief that she seeks.
It is submitted that either s. 50 applies with the two month time limit therein, subject to the court’s discretion to enlarge the time or, alternatively, that the time limit
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is one of six months having regard to the decision in question of this court in White v. Dublin Cooperation (Unreported, High Court, O’Caoimh J., 25th May, 2001.)
With regard to the inadequacy of the notice, it is submitted that the notice requirement is of a mandatory nature.
Conclusions.
In the first place it must be realised that under the terms of the Planning and Development Act, 2000 the applicant has a number of hurdles to surmount if this court is to grant leave to her to institute these proceedings to challenge the decision of the respondent County Council.
Section 50 of the Act of 2000 provides that any application such as this should be brought within the period of eight weeks commencing on the date on which notice of the decision was first published.
While this Court has jurisdiction to extend the period of eight weeks, section 50 (4) (a) (iii) provides:
“(iii) The High Court shall not extend the period referred to in subparagraph (i) or (ii) unless it considers that there is good and sufficient reason for doing so.”
Two further conditions remain to be satisfied by the applicant as provided for in s.50 (4) (b) (iv), which provides, inter alia:
“…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, and that the applicant has a substantial interest in the matter which is the subject of the application.”
It is clear that in the instant case the applicant’s failure to make submissions to the local authority in the first place or to appeal the decision at issue to the Board relates to her ignorance of the planning application or the decision at the relevant time. This is at the heart of these proceedings.
The applicant concedes that she was not aware of the planning application and rests her case on the basis of her submission that the same was not properly notified in
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accordance with the applicable regulations, being the Local Government (Planning and Development) Regulations, 1994 and in particular art. 16 thereof which provides:
“16. (1) A site notice erected or fixed on any land or structure pursuant to article 14(1) (b)-
(a) shall be painted or inscribed, or printed and affixed, on a durable material, and
(b) subject to sub-article (2), shall be securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road.
(2) Where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure.
(3) The position of a site notice on the land or structure concerned shall be shown on a plan accompanying the planning application.”
In the instant case it is clear that the lands in question do not adjoin a public road and accordingly the applicable site notice was one to be placed on the land in a conspicuous position so as to be easily visible and legible by persons outside the land or structure. Accordingly, the regulations did not require the placing of any site notice on the lands of the golf club adjoining the public road as the same were owned by and in the occupation of a third party.
It is clear that while the actual placing of the notice on the lands was at a location agreed by officers of the planning authority, the location of same may not have been such as to make the same legible by persons outside the lands in question. However, it has not been suggested that the notice in question would not have been visible from outside the lands and no case has been made by the applicant that she was prevented from reading the notice in question by reason of its location.
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It is furthermore apparent that the applicant has failed to advance any evidence to show or even suggest that had the notice in question been placed closer to the boundary of the land in question she would have observed same as no case has been made that she attended at any time at or near the boundary to the land in question.
With regard to the further notice adjacent to the entrance to the golf club, the evidence adduced by and on behalf of the applicant is that neither she, nor the other witnesses, who have sworn affidavits on her behalf, observed same, while the contrary evidence is that the same was erected at the location denoted and maintained in that position for a number of months.
With regard to the identity of the applicant for planning permission, it is clear that no case has been sought to be made by or on behalf of the applicant that she was mislead by reason of the misdescription of the notice party.
Accordingly, the applicant’s case reduces to an assertion, based upon reference to the planning file, that the location of the site notice at a point agreed with the planning officials, which may not have rendered the notice easily legible and visible to persons outside the lands in question, is such as to amount to the establishment of substantial grounds that the impugned decision is invalid or ought to be quashed. However, it is clear that the applicant cannot show that she was damnified by the location of the site notice in question.
As indicated previously, the provisions of s.50 of the Act of 2000 introduce a new requirement on the part of an applicant who seeks to impugn a planning decision and who seeks the leave of the court to institute judicial review proceedings to that end. This is the requirement that the applicant shows that he or she has a substantial interest in the matter the subject matter of the application.
As this is a new provision in the Planning Code it has not been the subject matter of any prior decision whereby assistance can be given as to its construction. However, by reference to the provisions of s.50 (4) (d) of the Act of 2000, it can be seen that the term “substantial interest” is not to be narrowly construed. The sub-section reads as follows:
“(d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest.”
Clearly different circumstances may arise giving a substantial interest to the applicant concerned. For example, an applicant may be able to show that he or she is directly affected by the proposed development. I am satisfied that the fact that a member of the public may have an interest in seeing that the law is observed is not such as to amount to the existence of a “substantial interest” within the terms of the section.
Can it be said that the applicant in the instant case has shown a substantial interest? The applicant has indicated that she is the owner of the land over which a right of way exists to the golf club. No particular point has been made by the applicant showing how she will be affected by the proposed development. She has confined herself to indicating that had she been aware of the application for planning permission she would have objected to same and would have appealed to An Bord Pleanala had a decision been made in favour of the grant of planning permission and had she been aware of same. I am satisfied, however, that the applicant has failed to show in what manner, if any, she will be affected by the proposed development and in this regard I am satisfied that she has failed to show a substantial interest in the matter.
I am also satisfied in the circumstances of this case, that the matters complained of by the applicant with regard to the notification of the planning application do not amount to “substantial grounds for contending that the decision is invalid or ought to be quashed”, especially where the applicant has not been damnified by the matters complained of which are essentially technical in nature.
With regard to the time within which these proceedings should be initiated, I am satisfied that the provisions of s.50 of the Act of 2000 govern the matter as that enactment had come into force at the time of the making of the impugned decision. The proceedings should have been taken within a period of eight weeks of the publication of the decision. It is conceded that this period had elapsed at the time of the bringing of these proceedings. It is also clear that when the applicant first became aware of the impugned decision the period had expired. The applicant accordingly
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must satisfy this court that there are good and sufficient reasons for extending the time concerned. While some confusion may have resulted from the misdescription of the applicant for planning permission by the absence of the word “Holdings” in the name of the applicant for planning permission, it is clear that the applicant in these proceedings cannot and has not sought to suggest that the entire of the delay in bringing this application is referable to same.
In all of the circumstances the applicant has failed to satisfy this court that she has established substantial grounds or that she has a substantial interest, and in the circumstances outlined by the applicant I am not satisfied that she has advanced good and sufficient reason why I should extend the time for the bringing of this application. In these circumstances I refuse the applicant the leave which she seeks.