Planning Injunction
Cases
Limerick County Council v Tobin
[2005] I.E.H.C. 281
JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 15TH AUGUST 2005:
The applicant seeks an order under the provisions of Section 160 (1) of the Planning and Development Act, 2000 which provides as follows:
“Where an unauthorised development has been, is being, or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or cease to do, as the case may be, anything which the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.”
The circumstances in which this order is sought arise from a belief on the applicant’s part that in recent times the respondent is engaged in an unauthorised use and development of land, namely by extracting sand and gravel from certain areas marked on a map attached to the Notice of Motion herein, which I shall refer to as areas “T”, “X” and “Y”, without having the necessary planning permission to do so.
The fact is that the respondent has been engaged in the business of extracting sand and gravel since about 1989 when he purchased three folios of land from the widow of the late owner at that time, Con Frawley. The respondent is making the case that what he is doing now by entering upon the areas referred to as “T”, “X” and “Y” is simply a continuation of the use of this area of land which pre-dates 1st October 1964, and that he does not require planning permission. He says that when he purchased the lands in question from Mrs Frawley he did so in the knowledge/belief that there was pre-existing use as a sand and gravel quarry which pre-dated 1st October 1964. He says he also bought other land – “the Keane lands” – to the east/south of the Frawley land, and that he did so on the same basis of pre- October 1964 use. No evidence of that pre-October 1964 use of the land has yet been adduced at this stage, other than averments to that effect by the respondent. But he says in his affidavit that he intends to locate persons who can give evidence of matters at that time.
The applicant does not accept that there was any pre-October 1964 in respect of the areas of ground now being excavated, even if there may have been such use in respect of other areas to the north. It is also the case that there were planning permissions granted to the respondent’s predecessors in title in respect of two areas to the north of “T”, “X” and “Y” and which are coloured yellow and hatched yellow respectively on the map attached to the Notice of Motion. Those predecessors in title were Patrick Casey, and Phyllis Keane respectively. These areas of the quarry have now been virtually exhausted, hence the desire on the part of the respondent to move into the unexhausted areas the subject of this application.
The grounding affidavit also refers to some other areas, namely those marked “V”, “W” and “P” on the same map, and the deponent, Michael O’Brien, a planning inspector, states that development on these areas, while not enjoying the benefit of planning permission, has been ongoing for a period in excess of five years and consequently are not the subject of the present application. This suggests that either the local authority was not aware that what it may have perceived as being unauthorised development was going on, or if it was so aware it turned a blind eye to it, so to speak.
This Court cannot determine on this interlocutory application the question of whether or not any pre-October 1964 usage of the land as a quarry absolves the respondent from being required to have planning permission for his present activity in areas, “T”, “X” and “Y”. That will have to await the substantive hearing. Such a hearing may well require the hearing of oral evidence from persons with first-hand knowledge of what may have taken place on this land generally before 1964, if such persons are still alive.
This affidavit also refers to the fact that in 1994 the local authority was required to bring a similar application under s. 27 of the 1976 Act in respect of another area, namely one marked “Z” on the same map. The respondent on that occasion was the father of the present respondent. That order was granted on the 28th June 1995. The present respondent refers to this order by saying that the granting of that order was “an unfortunate aberration” albeit one which he must accept. He explains this somewhat strange remark by saying that it was his father’s intention to dispute the application for the order on the same basis as the dispute in the present application, namely pre-October 1064 use, but that his father was not represented in Court on the occasion when the order was made. He goes on:
“whilst he had a solicitor on record for him at the time there was an unfortunate situation in which he managed not to be represented at the hearing of the application, and that should be apparent from the Court documents.”
There is no reference to any appeal having been brought against the making of that order.
As far as the applicant is concerned, the respondent has engaged in these quarrying activities in the “T”, “X” and “Y” areas without any planning permission to do so, and does not accept that any pre-October 1964 use which may have been applicable to any other area gives an entitlement to do so, and refers to the fact that there were permissions obtained in respect of the areas to which I have referred. In that regard, the applicant has sworn to breaches of numerous conditions of two of the permissions granted, and to the fact there are proceedings in the District Court relating to those alleged breaches which have been adjourned to October 2005 pending the outcome of the present application. These proceedings were following the service of an Enforcement Notice on the 20th May 2004 to cease unauthorised quarrying operations outside the areas covered by the planning permissions referred to, and was in respect of the area marked “X” on the map.
Mr O’Brien avers that the present application came about when it came to the applicant’s attention in June 2005 that the respondent had entered upon the “Y” lands and had broken an exit from the lands marked “Y” in the area marked “T” and into an area marked “I” on the same map.
The respondent in his first replying affidavit refers to the Ordnance Survey map of the area which he exhibits and points to the fact that what is described thereon as “Gravel Pit” appears to be on the area herein referred to as area “Y”, and not on the area where the applicant places it on his map attached to the Notice of Motion, and he maintains that this indicates that the gravel pit on “Y” has been in existence for many years. In this regard I should add that Mr Tim Prior, a Chartered Mineral Surveyor, has sworn an affidavit in support of the respondent and he states, inter alia, that where the Ordnance Survey saw fit to mark a gravel pit in an area it means that significant excavation and extraction of sand and gravel has taken place in the area. A question which could arise in that regard for the present application is whether if there was excavation at some stage many years ago, whether it was abandoned, thereby causing a break in the usage prior to October 1964. In this regard, John Edwards SC for the applicant has referred to the objective test as to this question of abandonment, and to the judgment of Budd J. in Westmeath County Council v. Quirke, unreported, High Court, 28th June 1996, where it was held that when a quarry ceased to be used as such in 1965 and a new use commenced for the production of ground limestone, the previous use was abandoned such that its reactivation constituted a change of use. Again, that is a question in the present case which must await evidence at the hearing.
Presumably also, part of the evidence to be relied upon by the respondent would be whatever written assurances were given by the vendor by way of statutory declaration or otherwise as to pre-October 1964 usage as a sand and gravel quarry at the time that the purchase of these lands was being completed by the respondent. No doubt his solicitors’s file in relation thereto would be of assistance in that regard. The onus would be on the respondent to satisfy the Court that there was the necessary evidence of pre-October 1964 use.
The applicant must on this application first satisfy the Court that there is a fair issue to be tried between the parties, before the Court will consider if an interlocutory injunction might be granted pending the determination of the substantive hearing. There is really no dispute about that in the present case, except that Simon Boyle SC for the respondent submits, relying on a passage from the judgment of Morris P. in Dublin City Council v. Lowe and another, unreported, High Court, 4th February 2000, that the applicant ought more appropriately have commenced this application by way of plenary summons, rather than by way of section 160 motion, since there are issues of fact to be determined before the Court can decide the matter, and oral evidence will be required. In that case, the respondents relied upon an existing user as a Defence to an application under the old section 27 of the 1976 Act. Morris P. at page 13 of the unreported judgment states as follows:
“In those circumstances in the ordinary way section 27 proceedings would have been inappropriate as there would be a clear issue to be tried which could only be tried, in my view, on full plenary hearing. The issue being whether there was a pre statute established user.”
In the present case, there is certainly an issue of fact to be determined, namely whether any pre-October 1964 usage can be of benefit to the respondent in order to remove his present activity on the areas mentioned from being categorised as “unauthorised use and development”. But in my view it is clear that where a planning authority, or other person, considers that an authorised development or use is taking place, there would in many cases be an urgency in the situation which s. 160 is designed to meet, so that the Court can be accessed speedily and conveniently. In the case of the concerned citizen, as opposed to a planning authority, he or she may run into locus standi difficuties if proceedings were to be commenced outside the statutory framework of s. 160 since that section specifically recognises the entitlement to invoke it, even where he or she has no interest in the land in question.
Of course even in plenary proceedings, relief by way of interim injunction is available, and at short notice, but in planning matters the legislature has specifically provided the procedure under s.160, and it is reasonable that the planning authority in such circumstances would avail of that in the first instance. If, upon the interlocutory hearing, it appears that a Defence put forward by the respondent is one where oral evidence, and even pleadings and discovery are necessary or desirable, there does not seem to be any reason why the Court cannot order such directions as to pleadings and mode of trial as may be appropriate, and certainly there could in my view be no question that the planning authority could be non-suited as it were, having commenced its application by the method provided for in s.160, merely because the respondent raises a matter by way of defence which for its determination requires either pleadings or oral evidence.
Whether the proceedings are commenced by originating notice of motion or by plenary summons, the task of the court is broadly similar, namely to identify a fair issue to be tried, and give appropriate consideration to the other questions of irreparable harm, adequacy of damages and the balance of convenience.
As far as the question of irreparable harm and the adequacy of damages in the present case are concerned, it is not something which arises for consideration in an application of this kind, where the applicant is acting in the public interest rather than in order to protect some private commercial or other interest.
If the respondent is restrained there may be a claim for damages against the applicant in the event that the injunction ought not to have been granted. The assessment of those damages, given the nature of the business and the length of time that the respondent has carried on that business means that damages should be easily capable of assessment, and it must be presumed that the applicant would be capable of discharging any award of damages which might be made in due course.
The real issue for the Court’s consideration is whether the balance of convenience lies in favour of restraining the activity in these areas pending final determination of the case, or whether the respondent should in the meantime be permitted to continue to extract sand and gravel from the disputed areas, with all that this would imply for the destruction of the land in question. There is of course power under the section for the Court to order the restoration of the lands in due course, should the use and development turn out to be unauthorised and requiring planning permission. But the problem about relying on the power to order restoration of the land in those circumstances is that the Court would be entitled to assume that these lands would be worked to their maximum potential by the respondents during whatever period of time elapses between now and the full hearing. If that be the case, there would be very considerable destruction of the landscape by the quarrying which would take place, perhaps over a period of six months or even twelve months. The prospect of these lands, after such excavation and quarrying, being restored to anything reasonably comparing to its present state is remote in my view. The best that could be hoped for would be that the large excavated area would be filled in some fashion, but its present character would be destroyed permanently.
The respondent has averred that in the event that he is restrained from carrying on his business in the areas affected, it would create great difficulties for him in his business as a sand and gravel quarrier at a crucial time of the year, and that he has contractual commitments on the basis of a continual supply. He states in his second affidavit that while he has other sites where quarrying takes place, his business dealings in connection with the sites the subject of the present application are distinct and that if an order is made as sought he will be unable to supply his customers.
In addition, the respondent has stated that he employs twenty people whose jobs are dependent on the continued excavation of the site in issue herein, so that not only would his business be put in jeopardy, but also the jobs of these employees.
Mr Boyle has submitted that the respondent’s averments as to the consequences for him and his employees as a result of an injunction pending the determination of the case have not been disputed or controverted by the applicant. He has submitted that the Court must accept that if injunctive relief is granted it will result in the closure of the entire of the respondent’s operation at the site in issue, and the respondent would be left with a claim in damages in the event that he was successful at the hearing of the case. He has also pointed to some aspects of the damage which he will suffer as being unquantifiable in the sense of lost contracts and goodwill, and that taking all these matters into account the balance of convenience lies in favour of not granting the interlocutory relief sought by the applicant. He submits that the prejudice to the planning authority does not outweigh these considerations. In sofar as the judgment of Hardiman J. in Dunne v. DunLaoghaire-Rathdown County Council, unreported 24th February 2003, expressed dissatisfaction with the evidence put forward by the respondent County Council in relation to how the alleged financial losses to the respondent were set forth, and the bald statement that that delay in completing the project was not sufficient, Mr Boyle gets over the bald statement of loss that is alleged will be suffered by the respondent in the present case by referring to the averment that there will be a complete shutdown of the respondent’s operation at the site, and he submits that this needs no further elaboration by the respondent.
In the Dunne case the learned judge also referred to the difficulty in determining where the balance of convenience lies in these cases. He stated in this regard:
“The difficulty for a Court in dealing with any case on an interlocutory basis is that there is an ever present risk, either in granting or withholding relief, of doing an injustice to the party who succeeds in the end. One has to balance the risks of injustice to the respective parties. In this context it is significant that, if no relief is granted, the court will be effectively deciding the issue by inaction, since the apprehended interference with the alleged national monument will be complete long before the action can be tried.”
I am of the view that the respondent herein should not be permitted to continue with the present use, because in the event that the applicant is found to be correct that this use is an authorised use (and it certainly seems to this Court at this stage that whatever about the respondent’s assertions on affidavit as to pre-October 1964 use, the proof of the matter may be a matter of some difficulty for him), the damage will have been done or substantially done by the time the case comes top trial, and the victory will indeed by pyrric, even though in his second affidavit the respondent is prepared to limit his further excavation to areas Y and T only pending the hearing, subject to an undertaking as to damages by the applicant.
The planning authority is looking after the public interest in ensuring that unauthorised development or use does not take place. This is a heavy responsibility, and one for which the legislature has provided assistance in the form, inter alia, of provisions such as s.160 injunctive relief. There is no question of bad faith on the part of the applicant. It is, as it sees it at the moment, attempting to put a halt to what it considers to be an unauthorised use of the land in question. It cannot simply accept what the respondent states as the reason for his belief that the use does not require permission. This is a matter which will require evidence to be adduced and tested in due course. Nor has the applicant in my view delayed in any relevant way so as to disentitle it to the relief sought. As far as this relief may be regarded as equitable relief, the applicant has come to court with “clean hands”.
I consider that even though the respondent may well, and in all probability will, suffer some losses by the granting of interlocutory relief pending the hearing of this case, it is a loss which will be quantifiable in the event that the respondent is correct and can prove his case. That prospect of losses does not in my view trump the need to maintain the status quo from this point onwards as far as the integrity of these sites is concerned. Once that integrity is destroyed, even partially, it cannot be restored adequately thereafter, in much the same way as in Dunne, the integrity of the alleged national monument could not be restored in the event that the development was not halted pending the hearing of the case. Not to allow the relief sought in a case such as this would be to permit or at least encourage those intent on breaking the law in this way from taking their chances, so to speak, in the hope, if not the expectation, that by the time matters reach Court for the substantive hearing they will have been able to benefit significantly by their own misdeeds. That would set at nought the intention of the Oireachtas in enacting legislation such as this.
I therefore grant the relief sought and I will hear submissions as to what form of pleadings and discovery of documents should be directed, and what time limits ought to be placed on that exchange, so that as early as possible a hearing date can be achieved in order to minimise as far as may be possible, any prejudice to the respondent.
Approved: Peart J.
Altara Developments Ltd v Ventola Ltd
[2005] I.E.H.C. 312
JUDGMENT of O’Sullivan J. delivered the 6th October, 2005.
The Parties
The first applicant is a development company of which the second is a director. The applicants seek to halt the construction by the respondent, itself a development company, of a residential development comprising 255 houses at Delgany Woods which is between Delgany and Killincarrig Greystones Co. Wicklow. The first applicant has completed a residential development in the immediate vicinity of the respondent’s and says that the latter is being conducted in breach of a condition imposed by An Bord Pleanála which, it says, is intended to ensure that the road network in the immediate area is completed before the last 130 houses are constructed.
There is a background of acrimony between the parties relating to a failed attempt by them to link the internal traffic systems of their respective developments. The proceedings before me were conducted on the basis that this matter would not be ventilated. I agreed because I heard the case on the last two working days of the legal year and the matter seemed urgent. On balance I thought it better to hear the matter there and then rather than postpone it to the new year when further affidavits could be available.
The Issue
The sole issue, therefore, concerns the meaning of a planning condition imposing a phasing of construction in tandem with nearby roadworks.
The condition is as follows:-
“2.(1) No house construction shall commence until the planning authority has confirmed in writing that it is satisfied that road improvement works on route R 762 from the site to Killincarrig Crossroads have reached a stage where site construction traffic can safely use this road.
(2) Subject to the requirements of 2(1) above only 50 houses shall be constructed until the planning authority is satisfied that work is in progress on the Greystones Southern Access Route
(3) Subject to the requirements of 2(2) above, only 125 houses in total shall be constructed until the Delgany By Pass Road (R 762, via Road 1, to the Black Line Road) has been commissioned.
Reason: in the interest of traffic safety and orderly development”.
An Bord Pleanála granted the permission on 9th June, 2000 and by condition 3 provided that it should last for 10 years.
The application originally sought a lifetime of seven years for the permission and it is reasonable, I think, to infer that An Bord Pleanála extended this timeframe having regard to the imposition of phasing of the work in tandem with the development of the road network servicing the area.
The planning authority’s role
On 1st October, 2003 Wicklow County Council served an enforcement notice requiring the respondent to cease unauthorised works which were not in compliance with the permission. Specifically the notice said
“Cease all works immediately at Delgany Wood on houses over 125 number pending compliance with condition 2(3).”
Prior to that the respondent had taken advice from a senior counsel specialising in planning law, an architect and an engineer specialising in planning and environment and all three had advised that the respondent had complied fully with condition 2(3) and was entitled to construct the final 130 houses. Clearly at that time Wicklow County Council had a different opinion.
The road referred to in condition 2(3) is a local distributor road linking Delgany village to the Black Line Road. Approximately three quarters of the road runs through the respondent’s development and has been already constructed and I infer was constructed at the time of the service of the enforcement notice. The remaining quarter, however, runs through lands then and still in the ownership of third parties.
Following the service of the enforcement notice intensive discussions took place between the respondent and Wicklow County Council which resulted in an agreement the salient terms of which were
(a) the respondent would design and provide specifications for the remainder of the road, same to be submitted to and agreed by the council’s engineer
(b) the council would obtain all necessary consents for the construction of this road;
(c) the council would enter discussions with adjoining land owners and if necessary after 12 months set in train a compulsory acquisition process for the necessary lands;
(d) the respondent would hand over to the council the portion of the road on its lands;
(e) provision was made for the respondent to construct the road if appointed by the council;
(f) the respondent would pay all outstanding contributions due or to become due under the permission to assist the purchase of the adjoining lands for the proposed roadway;
(g) the respondent would further lend any land acquisition costs exceeding such contributions if requested by the council, such loan to be repaid within four years;
(h) on receipt of contributions the council agreed to confirm in writing to the developer its acceptance of the developer’s proposal for compliance with condition 2 (and 24) of the planning permission.
In addition by clause 9 of the agreement it was provided that in the event that the council had not acquired the adjoining lands and constructed the roadway within a period of four years from the date of the agreement (26th November 2004) then the agreement should be at an end and the obligations of either party to one another should forthwith cease save that the loan money should be repaid if still outstanding.
The situation contemplated by clause 9 is anomalous: if the council have not managed to purchase the adjoining lands and construct the roadway within four years from the date of the agreement (that is by 25th November 2008) then the agreement is at an end. The agreement, however, includes the basis for the acceptance by the county council of the respondent’s proposal for compliance with condition 2 of the planning permission. If the agreement ceases to have effect what is the status of this acceptance?
This seems less than satisfactory. The respondent is obliged and bound by condition 2 of the planning permission for the entire lifetime of the permission itself that is up to the 8th June, 2010. The planning authority’s acknowledgment of compliance with this condition is made to depend on compliance by the respondent with the terms of an agreement with the planning authority which contemplates the possibility that the agreement itself will come to an end and have no effect during the currency of the permission.
Furthermore, depending on the true meaning of the condition itself (a matter of disagreement between the parties) it could also mean that compliance with the condition, so far as the planning authority by its agreement is concerned, can be watered down to compliance with the terms of the agreement, that is to a bona fide attempt by the planning authority and the respondent to acquire whether by agreement or compulsorily the necessary lands and construct the last quarter of the by pass road within four years of 26th November 2004.
The submissions
Reference has been made to the opinions furnished to the respondent by distinguished professionals specialising in the planning area. I have not been furnished with these advices and in these circumstances clearly they are of little or no relevance to the central issue in the case which is what the meaning of the word “commission” as used in condition 2(3).
I have been furnished with an affidavit from a planning consultant on behalf of the respondent who says that it means “authorised or ordered such that steps have been taken to put in train the construction of the road and to ensure that it will be constructed”, and with an affidavit sworn by a chartered civil engineer on behalf of the applicant which says that it means “operational”.
Whatever about the position before 26th November 2004 it is argued by the respondent that under the agreement between the respondent and the county council of that date the road has been authorised or ordered such that steps have been taken to put in train its construction and to ensure that it will be constructed. The agreement with the county council is clearly a bona fide attempt to ensure that the road will be built but it is nonetheless clear that the road construction is not guaranteed under the agreement and so much is acknowledged in clause 9. In my opinion, however, it is questionable, even on the respondent’s case, whether the road has been “commissioned”, because the steps which have been put in train cannot be said to “ensure” that the road will be constructed. The case put forward by the planning consultant on behalf of the respondent, however, appears to acknowledge that such an assurance is required if the road can be said to be commissioned.
An entirely different meaning is put forward by the applicant. The applicant says that the road is not commissioned unless it is operational. In support of this interpretation it is submitted that if the condition merely requires that the road be contracted for then such a condition offers no adequate solution to the traffic problem which would be generated as soon as the houses as occupied. It makes the condition meaningless.
The Meaning of Condition 2(3)
The instant planning permission was preceded by a number of applications for development on the site which were granted by Wicklow County Council but refused on appeal by An Bord Pleanála. The critical issue was the inadequate road infrastructure. The respondent modified its application and ultimately the present planning permission was granted subject to condition 2.
This condition deals with the concerns about traffic safety and orderly development by creating three barriers to construction work on the houses.
The first barrier is that no house construction can commence until the planning authority is satisfied that road improvement works from the site to Killincarrig crossroads have reached a stage where construction traffic can safely use the road.
Once this has happened only 50 (out of 255) houses can be constructed. If the developer wants to construct more than 50 houses this can only happen once the planning authority is satisfied that work is in progress on a further instalment (the Greystones Southern Access Route) of the road network in the area. If this barrier is overcome then the developer can build between 50 and 125 houses.
But there he must stop because he comes up against a third barrier which is that he cannot continue until the Delgany By Pass Road has been “commissioned”. Only after this road has been commissioned can he proceed to build the last 130 houses.
To my mind condition 2 is concerned with ensuring that additional traffic generated by the proposed development will not cause hazard and can move safely and in an orderly fashion. It requires works to be done which will facilitate this. So much is clear from sub-conditions (1) and (2). It would be highly anomalous, I think, if sub-condition (3) were to depart from the philosophy of relating the phasing of the development to the actual works on the ground in favour, merely, of the putting in place of legal and contractual arrangements for the provision of the by pass road no matter how unqualified. Such arrangements can notoriously take time measured in years rather than months and it is highly unlikely in my opinion that it was within the contemplation of An Bord Pleanála that houses could be constructed and occupied during the period of time which can elapse between the setting up of the legal arrangements for the construction of a public road over third party lands and the day on which such a road becomes operational.
Nonetheless this is the meaning contended for by the respondent who was advised even prior to the making of the agreement with the County Council that whatever arrangements were then in place constituted compliance with this condition. I have not seen these advices. I do not know whether they were unqualified and indeed upon what factual basis they were proffered. At the hearing before me the factual basis upon which it was contended that the respondents had complied with condition 2(3) was in effect the reaching of the agreement with the county council which was arrived at after the service of the warning notice the salient features of which I have summarised above.
In my view, for the reasons given above, the word “commissioned” in condition 2(3) means “has become operational”. If I am incorrect, however, and it means only that the legal and contractual arrangements must have been put in place so as to ensure that the road will be constructed in the future then in my further opinion the agreement with the county council is at least questionable (again for the reasons given above) as an appropriate instrument producing such an effect.
It was submitted on behalf of the respondent that where the meaning of a condition is ambiguous it must be construed contra proferentem. Reliance is placed on the decision of Finnegan J. (as he then was) in Cork County Council v. Clifton Hall Limited and Others (Unreported, 6th April, 2001) where he said
“In any event insofar as the planning permission is ambiguous it should be construed contra proferentem i.e. against the applicant.”
The applicant in that case was the same planning authority as had drafted the condition which it sought to construe against the developer in a way with which the learned trial judge disagreed. In that context it was certainly fair that the planning authority should not be seen to advance an incorrect interpretation of the condition which it had drafted to the disadvantage of the developer.
I do not understand the learned trial judge in that case however in any way to have sought to qualify the long established canon of construction of planning permissions laid down in the Supreme Court per Henchy J. in Readymix (Eire) v. Dublin County Council (which was not even mentioned in Clifton Hall Ltd.) where he said
“Since the permission notified to an applicant and entered in the register is a public document, it must be construed objectively as such, and not in the light of subjective considerations special to the applicant or those responsible for the grant of permission. Because the permission is an appendage to the title to the property, it may possibly not arise for interpretation until the property has passed into the hands of those who have no knowledge of any special circumstances in which it was granted.”
In any event, I do not accept in the present case that there is ambiguity about the word “commissioned” as it appears in condition 2(3).
Nor do I consider that there is any principle of law which proposes that the proper interpretation of a planning condition is the one which is the least onerous to the developer by reference to a principle of contra proferentem or any extension thereof.
Discretion
On behalf of the respondent it was submitted that this application is governed by an improper motive on the part of the applicant who is a competitor of the respondent and with whom discussions aimed at the provision of access to the respondent through the applicant’s lands broke down acrimoniously and were followed by further disputes in relation to rights of way and so on.
Because of the arrangement described at the outset of this judgment I consider that it would not be correct for me to give weight to this submission because I do not think it has been adequately ventilated before the court.
Somewhat more troubling is the point made that the impression was sought to be conveyed that the second applicant was a local resident whereas in fact he appears to live in Stillorgan. I am unhappy, to put it no more strongly, that it was left to the respondent to clarify this.
A further point was made that the application was only brought after undue delay. In reply it is said that the application could only be brought after the development was well underway because of the provisions of conditions 2(1) and (2).
The respondent also points out that considerable hardship has already being caused to it by the existence of these proceedings and considerably more hardship will arise in the event that an order is made curtailing the development. The respondent was due to close sales on 13 houses in July and August and a further 13 were due in the September/October period. The value of these 26 sales exceeds €11 million. Sales with a value of in excess of €20 million were due in the six months from the beginning of July 2005. The loss (or protraction) of these sales would greatly damage the respondent company’s cash flow and put at risk the employment of 33 persons working on site. It would also cause great hardship it is said to third parties being the buyers involved in these sales many of whom it is suggested would already have entered into agreements for the sale of their existing homes in anticipation of closing sales with the respondent.
For the reasons indicated I am not taking into account the position of the applicant as competitor of the respondent. I am however taking into account the fact that the application was presented on the basis that the second applicant was a local resident who lives in the immediate vicinity of the site. This has proved incorrect.
I am also taking into account the fact that a number of third parties will sustain disruption and damage if an order is made curtailing the respondent’s work on this site.
Most of all I am taking into account that the respondent has proceeded with caution and care in dealing with this development. It had been advised that it was in compliance condition 2(3) even before the serving of the warning notice by the county council and in response to the service of that warning notice entered negotiations with the local authority.
This is not a case of a developer pushing ahead regardless. On the contrary it has proceeded since November 2004 with the active support and blessing of the planning authority and in the reasonably held opinion that it was not in breach of the planning permission. In the circumstances I decline to make any order curtailing the respondent’s construction works as requested by the applicant.
Approved: O’Sullivan J.
PM Cantwell v McCarthy
[2005] I.E.H.C. 351
Judgment of Mr. Justice Roderick Murphy dated the 1st day of November, 2005.
The applicants sought an order prohibiting the respondents from carrying out any or any further alleged unauthorised development relating to a storm water outflow through the streets of Kilkenny. The development has involved the digging up of roads and the laying of pipes at Granges Road, Golf View Terrace, Thomas Street, Dean Street, Butts Green and adjacent car park to a new outfall at the Breagagh River beside the Butts roundabout, situate in the city of Kilkenny.
The applicants also sought an order directing the respondents and each of them to reinstate the lands and roadways aforesaid. However, the time the action came for hearing last month the development had been completed and the roadways had been reinstated to the satisfaction of the planning authority.
In addition to the present s. 160 application, judicial review proceedings have been initiated by the applicants.
The hearing took place from 3rd to 6th October last.
Permission had been granted in respect of 66 houses (P56/03) on Granges Road, the main site. The present application relates to the surface or storm water outfall from the main site, (P04/126).
2. Grounding Affidavit
By affidavit of Mark Cantwell, director of the first named applicant company, sworn 30th July, 2005, the planning permission P04/126 of the first and second respondents is exhibited.
Permission was granted subject to seven conditions for a revised storm water system with attenuation, discharging via a new drain through Granges Road, Golf View Terrace, Thomas Street, Butts Green and adjacent car park to a new outfall at the Breagagh River beside the Butts roundabout and ancillary related works.
Reference was made to planning permission P56/03 which related to the respondents’ permission for a residential development and ancillary related works granted also to the first and second named respondents in respect of the development of 66 housing units from which the revised storm water system flows.
The first condition provided that the development should be carried out in accordance with the plans and particulars submitted on 3rd December, 2004 and further information submitted on 17th February, 2005. That information was by way of drawing No. DP/01 in relation to the drains inside the site of the planning permission for the housing units (P56/03) and the further drawing No. DP/02 in relation to the storm outfall from the site.
The third condition required that the surface water outfall sewer should be fully constructed and tested and in proper working condition prior to the commencement of any construction works on the (housing) site.
The fourth condition required the developer to obtain written agreements of appropriate landowners where the construction of the outfall necessitated entry onto lands other than public roads or the applicants own lands. I understand that the outfall did not fall outside public roads or the developer’s lands.
The seventh condition relates to the monitoring of the works on the site by a suitably qualified and licensed archaeologist to ensure the preservation (either by record or in situ) of the places, sites, features and other objects of archaeological interest and notification to the Department of the Environment.
The remaining three conditions did not appear to be relevant to the application for judicial review.
Mr. Cantwell believed that the permission was granted in breach of the statutory requirements of the planning regime and as a result of the alleged developer’s breaches and the failure of the local authority to rectify them he was denied his right to participate in the planning process. He made a distinction between the judicial review application and his s. 160 application. The judicial review proceedings sought to challenge the validity of the grant of permission. The s. 160 application was concerned with the development that had occurred in breach of pre-development conditions or development occurring outside the scope of the permission. He took particular issue with works taking place outside the area outlined in red on the planning application. The present application was, he said, a challenge to unauthorised development.
In this regard he referred to the copy of the map in relation to the application for planning permission date stamped 2004, No. P04/126, which referred to the storm water outflow from Granges Road, Kilkenny. The map outlined the housing site in red. The storm water system is not referred to on that site map. The planning permission P04/126 application is in respect of development on the local authority roads leading from the site to the Breagagh River. In the circumstances the deponent submitted that the respondents do not have permission to carry out the works, which, as exhibited in the photographs, are of a significant nature, in that they are unauthorised.
Mr. Cantwell refers to conditions 2, 3 and 7 which he says are in the style of preconditions and instances.
In particular condition 2 provided that no work whatsoever should be carried out until formal agreement with the planning authority with regard to the method statement. There was no record that the method statement was submitted or agreed.
Mr. Cantwell also refers to condition 3 relating to the surface water outfall sewer being fully constructed and tested prior to the commencement of any construction works on the main site. He says that an inspection of the site revealed that foundations had been laid by the respondent.
There was no record of any commencement notice being filed; that excavations had commenced on 18th April, 2005 and that the respondents had commenced work some five weeks before the submission of the archaeological report on 23rd May, 2005. Mr. Cantwell says that the respondents filed a commencement notice with the local authority on or about 21st March, 2005 but did not obtain a grant of permission until 17th April, 2005.
The deponent objected to the carrying out of works which involved the closing of roads to traffic. He says that the works were carried out without notice to any third parties or to the public and implies that no temporary closing orders pursuant to s. 75 of the Roads Act, 1993 were obtained and that this incursion on the public roadway was unauthorised and that the intention was to continue excavations in the public road.
The judicial review proceedings were served on 21st June, 2005. Mr. Cantwell said that since that date the respondents had accelerated their work to try to complete as much as was possible before the application for judicial review was due before the court.
The applicants wrote to the respondents and to the local authority on 23rd June, 2005, specifying the unauthorised nature of the works. The local authority replied by letter of 27th June, 2005 that it was open to the applicants to enforce the matter of their own accord.
Further correspondence between the parties ensued.
3. Replying affidavit of Anthony McCarthy
3.1 By affidavit dated 8th July, 2005 the second named respondent referred to the previous grant of planning permission, P56/03 (the permission for the main site) the installation of which was unsuccessful due to engineering difficulties. In consequence permission was sought for a revised storm water system as granted by planning permission 04/126 on 16th March, 2005, which was expressly for:
“A revised storm water system with attenuation, discharging via a new drain through Granges Road, Golf View Terrace, Thomas Street, Butts Green and adjacent car park to a new outfall at the Breagagh River beside the Butts roundabout and ancillary related works.”
He referred to two copies of drawings on foot of which such permission was granted and expressly referred to in the permission which the Court understands to be drawing No. DP/01 and DP/02.
3.2 Mr. McCarthy believed and was advised that the works were permitted by and were in compliance with the planning permission; that prior to the commencement the necessary legal consents were obtained from the planning authority to commence works on the site.
He referred to an application of 1st April, 2005 and a licence granted on 22nd April, 2005 and 20th May, 2005. The application was in respect of the opening of the roadway at Granges Road, Golf View Terrace, Thomas Street and Butts Green for the purpose of surface water outfall. The road opening licence issued on 23rd April, 2005 was somewhat more extensive. It related to Granges Road, Golf View Terrace, Thomas Street and St. Canice’s car park – installation of a surface water pipeline. It was subject to nine conditions. Condition 4 referred to the method statement submitted being of insufficient detail in relation to S7 to S8 on DP/02 and request to address the issues prior to the commencement of works.
The second road opening licence, RO(13) – 2005, related to Dean Street (close to Butts Green roundabout) and was subject to eighteen conditions, the first of which related to a works programme and method statement for approval by the local authority area engineer at least one working week prior to commencement.
3.3 Mr. McCarthy says that, contrary to the averments in Mr. Cantwell’s affidavit, that an initial method statement dated November, 2004 with three addenda agreed the method of such works with the planning authority prior to the commencement of the works. The method statement exhibited, dated November, 2004, with addendum of 17th February, 2005, together with a further two undated addenda, were prepared by Occupational Safety and Training Organisation Ltd. on behalf of the third named respondent and by Frank Fox & Associates, civil and structural consulting engineers respectively.
3.4 In relation to the allegation regarding the foundations having been laid on the housing site prior to the installation of the storm water system in breach of condition 3 of the planning permission, Mr. McCarthy said that the planning permission permitted a storm water system with attenuation and in accordance with the planning permission engineers on behalf of the respondents designed an attenuation area of 630 sq.m. on the housing site to retain storm water. Its location lay extremely close to a depression on the lands and in order for the attenuation to be constructed the depression had to be filled. Rather than excavating and refilling the depression only to re-excavate it to construct the house foundations, the foundations of two houses were laid to facilitate completion of the attenuation area. It was not intended to carry out further works on the housing site until the planning conditions regarding commencement were adhered to and no such works were undertaken. The works carried out were done so for technical reasons to prevent duplication of excavation works and unnecessary interference with the structure of the attenuation area at a later stage. It was de minimis and had no detrimental affect on the proper planning and sustainable development of the area.
3.5 In relation to the averment that the respondents had failed to provide the appropriate notice to the Department of the Environment, Heritage and Local Government in accordance with condition 7 of the planning permission, Mr. McCarthy said and believed and so advised that the appropriate notice being an application for a licence to excavate, was made on 6th April, 2005 by Kilkenny Archaeological Consultancy, which notice expired on 5th May, 2005. Monitoring commenced on 11th May, 2005 and the licence was granted on 23rd May, 2005. The works were professionally monitored by Kilkenny Archaeological Consultancy. The licence was granted for a period of thirteen weeks, commencing 7th June, 2005. An invoice in relation to (radio) advertising from 27th to 28th May, 2005 was exhibited.
Mr. McCarthy avers that the respondents were in constant communication with the planning authority in relation to method statements, programme of works, commencement dates and provision of test holes. The authority was fully appraised of the respondents’ intentions to proceed with the works and liaised to ensure that the least disruption would occur.
3.6 In relation to the alleged breach of the Road Acts, 1993, in failing to obtain temporary closure orders for the roads under excavation, Mr. McCarthy was advised that such breach was not a planning matter and was, accordingly, not justiciable in an application pursuant to s. 160. In any event, once it became apparent that, in the interest of public safety, a small proportion of a laneway should be closed, the local authority agreed, subject to conditions of advertising, already referred to and notification to the Gardaí and Ambulance Service. He was informed that the local authority received no complaints in relation thereto.
3.7 Mr. McCarthy referred to a letter dated 4th July, 2005 from the solicitors acting on behalf of the planning authority in relation to proceedings issued against the respondents by the first named applicant. In relation to the respondents seeking clarification in relation to the licence issued from the local authority dated 22nd April, 2004, the local authority’s solicitor confirmed as follows:
“Our clients instruct us that they are entirely satisfied with the work done in relation to the water main and its manner of construction to date and the manner technically in which the work has been carried out. From their inspections of the works to date (and subject to anything that might arise in the future) our clients accept that the work, so far as they can tell, has been done in a technically proficient manner and to their requirements and that they are satisfied that the efficiency and integrity of the water pipe network has not been in any way compromised. Our clients accept that the technical methodology of the approach of the work satisfied our clients’ requirements. It is fair to say that our clients are more or less satisfied about what has been done and do not have any real concerns about the manner in which your clients have carried out the work done.”
The applicants had, by letter of Monday, 17th January, 2005, addressed the planning officer of the authority in relation to the planning application 04/126. The letter acknowledged that the latest date for receipt of submissions was Saturday, 15th January but, in their view, the submission was made within the appropriate time. A number of comments were made in relation to the surface water pipe being upgraded to serve the adjoining zone lands at Loughmacask or why a new foul water drain could not be laid in tandem with the new surface water drain, given that the said lands were inadequately serviced. In their view an opportunity existed within the planning application for the planning authority to undertake its duty to provide for serving all lands zoned for development in the Loughmacask area. The letter continues:
“(7) If it is found that the above planning application is not sustainable development the planning authority in our opinion has the power to make the necessary changes by way of planning conditions.
(8) We would obviously be happy to contribute to the cost of any additional works undertaken to service our lands at Loughmacask.
We would wish to emphasise that we do (sic) have an objection principle to the above planning application. In fact we would welcome this development subject to it being sufficient to service the lands at Loughmacask in a sustainable manner.”
A letter was sent from the respondents’ quantity surveyor to the applicants on 21st March, 2005, confirming the decision to grant P04/126 in relation to the surface water drain on 16th March and that the local authority condition 3 required surface water outfall to be fully constructed and tested prior to any construction work on the site.
Mr. McCarthy referred to discussions taking place between the respondents and the applicants. He said that the applicants had unsuccessfully objected to the planning application by letter dated 17th January, 2005, already referred to. He further said that the applicants took no steps, even in correspondence, from the date of their letter informing them of the grant of planning permission until the applicants’ letter of 1st June, exhibited in a later affidavit of Mr. Cantwell. That letter notified the respondents that the applicants had instructed their solicitors to make an application to the High Court for leave for judicial review and that their clients believed that the development was proceeding contrary to conditions attached to the planning permission. That letter was replied to by solicitors for the respondents who said that they were entitled to proceed with the development on foot of a valid planning permission, that they had a launch date for the development on 16th June, 2005 and that any intrusion by the applicants into the surface water pipe would not be permitted under P04/126 and would invalidate the respondents’ development. The motion for leave to seek judicial review was dated 20th June, some six weeks after the commencement of the works and thirteen weeks after the letter of 21st March advising the applicants of the grant of permission. Mr. McCarthy said that it was not appropriate that the applicants instigate separate proceedings pursuant to s. 160 of the Planning and Development Act, 2000, prior to the determination of the judicial review proceedings.
He denied that there had been acceleration in the works but rather that the pace of works had been agreed with the local authority to minimise disruption to the public and that the respondents were behind in that programme. He says that the applicants had expended approximately €400,000 plus VAT (as part of the total investment of €3m.) and that if the works ceased prematurely they would suffer significant financial loss and prejudice and that the demobilisation and remobilisation would leave the public roadworks unsafe. At the date of the swearing there was approximately one week’s work left on the installation of the storm water drain pipe.
The deponent says that the applicants’ sole motivation in all of the proceedings was to prevent the respondents from constructing a pipeline with capacity to serve only the respondents’ housing units. The applicants were owners of a neighbouring (but not adjoining) property and wanted an “upsizing” of the surface water sewer and the additional installation of a foul sewer along the route undertaken by the respondents in accordance with the planning permission. He believed that the present proceedings were of a merely “spoiling” nature as none of the proceedings prosecuted by the applicants could achieve their aim of obtaining access to an expansion of the storm water system. The issues should more properly be dealt with between the applicants and the planning authority. The applicants had an opportunity to be heard by the planning authority but failed to make a submission within the relevant time limit. He referred to the various meetings held.
4. Further affidavit of Mark Cantwell dated 10th July, 2005.
Mr. Cantwell said that it was significant that the respondents had not disputed that significant works were carried out outside the red line area identified on the map lodged with the planning application ref. 04/126. He said he had been disadvantaged by the fact that he had not received copy of the drawings. He referred to article 23 of the Planning and Development Regulations of 2001 which he says is a mandatory requirement directing that plans accompanying the application must identify by delineating in red the nature and extent of the proposed development.
Further, he says that no reference was made to Dean Street.
He cited s. 254 of the Planning and Development Act, 2000 in relation to the prohibition on the construction of, inter alia, a pipeline over or along a public road save in accordance with the licence granted by a planning authority under the section. He further takes issue with the letter from the local authority’s solicitor dated 4th July, 2005, and that it was a matter to be established in the course of judicial review proceedings.
In relation to the provision of a method statement and his concern that addenda 2 and 3 are undated and that there was no letter of acknowledgement from the local authority that pre-dated the road opening licence of 24th April, 2005. He also takes issue with the works carried out by the respondents in the preparation of the attenuation area. He says that the issue regarding the temporary road closing orders was a matter for separate proceedings.
The applicant also takes issue with the respondents prejudice and financial loss, and reiterated the respondents purpose to carry out as much work as possible prior to the hearing.
Mr. Cantwell says that the applicants did not seek to restrict the respondents but sought to establish that the local authority had incorrectly applied a private planning permission to works that were in the nature of public development which matter was set out in the judicial review proceedings.
5. Further affidavit of Mr. McCarthy
In a supplemental affidavit of Anthony McCarthy it is stated that while the service water pipeline the subject matter of the proceedings extended beyond the red line boundary in the planning application the said works formed part of the development in respect of which planning permission was granted and that statutory notices made reference to the development of the pipeline. Accordingly, the applicants could not claim to have suffered any prejudice. He did not accept that the conduct of the works in the areas outside the red line boundary identified in the planning permission constituted unauthorised development. The block work in relation to the two houses in the attenuation area represented two per cent of the bills value of both houses. The attenuation area was an integral part of the service outfall sewer and provided levels from source. It was imperative to conduct the attenuation area in order to satisfy condition number 3.
At the time of the swearing of the supplemental affidavit (sworn the 17th July, 2005) all that remained was 17 linear metres of excavation on the footpath of Granges Road and that agreement had been reached with both land owners involved to remove their boundary walls and reinstate them on completion.
He referred to the failure of Mr. Cantwell to disclose the applicants’ letter of 21st March, 2005 relating to the decision of the planning authority and referred to the very significant delay in the issue of proceedings.
6. Experts Affidavits
6.1 The affidavit of Peter Bluett, Architect engaged by the respondents was sworn on the 15th July, 2005 who says that the facts deposed to in the affidavit of Anthony McCarthy, the second named respondent, sworn the 8th July, 2005 accorded with his professional opinion. He could not see how the works done by the respondents in anyway damaged the proper planning or sustainable development of the area and said that the procedure by way of licence in the Council was entirely in accordance with normal practice. He referred to the two planning permissions: P58/03 and 04/126. He said that the latter expressly and clearly granted permission for an attenuation pond on the housing site and a storm water pipe entering onto the public road and discharging into the Breagagh River. The area marked red on the plans and drawings submitted with the application showed clearly to any member of the public consulting the planning file that the storm water outfall system was along the route identified therein and coloured on the map in accordance with the legend identified thereon.
The legend showed the foul drain in red and the storm drain in relation to which planning was sought and granted in blue. It also showed the public sewer in hatched red line and the limited area in drawing DP/01 in relation to the housing site in respect of road drainage area diverted to the new storm drain as been shown by a hatched navy line.
The planning authority receipted the application and regarded it valid. He had been in general practice for over 24 years and had experiences of similar applications and said that such a system for the description of the said proposed works represented the current and good practice. The applicants on inspecting the planning file called their engineers to prepare a revised system in May 2005 and there was no difficulty whatever in identifying what was proposed in respect of the disposal of storm water.
The unexpected necessity of a brief road closure for public safety reasons in consultation with the planning authority was entirely practical, prudent and in accordance with good practice and, indeed, necessary in the interests of public safety.
The suggestion from the applicants that they were not notified of the date of the decision to grant permission arose as there was no obligation to notify them as they had not made any submission to the planning authority on the application. Mr. Bluett found it difficult to comprehend that they were not aware of the decision given their familiarity of the planning process and their interest in a number of developments in the environs of Kilkenny. They were informed by the respondents by letter of 21st March, 2005 of the decision and that they had retained professional planning consultants to advise them generally in the matter.
6.2 The affidavit of Mr. Gavin Lawlor MSc, Chartered Town Planner and Senior Associate in Tom Phillips and Associate on behalf of the applicants said that the issue was not whether the work carried on by the respondents damaged the proper planning or sustainable development of the area but whether the works were authorised. The issue of licences from the local authority did not in their own right authorise works in the nature of those carried on by the respondents.
He said that he had not come across a case where a development authorised by a planning permission allowed work to be undertaken outside the scope of the works as defined by the red line boundary nor was he aware of any developer who would rely on the text of a permission as comprising the scope of works. The site map had to identify the extent of that work which had to be outlined in red as required by Article 23 of the Planning and Development Regulations, 2001. This identification of the area under development is basic legislative requirement so determined to allow the scope of the works and the impact thereof to be readily identified. The absence of a red line lodged with the applicants identifying the works and the scope thereof becomes inaccurate and misleading. It was incorrect to present the drawings submitted as being similar to or in compliance with the requirements of Article 23 which drawings were most commonly utilised to illustrate the manner in which the developer would connect the proposed development to existing infrastructure but were not fundamental to the planning application. Pipeline connection to existing infrastructure was an exempt development and did not of itself need to be identified within the scope of the works to be undertaken. The works undertaken by the respondent was not exempt development and it was incumbent on them to properly identify not only the nature of the works to be undertaken but the scope thereof in order to obtain the authority therefore. It was incorrect that persons should be required to refer to technical drawings. The receipt by the planning authority and its validation does not, of itself, authorise the works undertaken. For works to be authorised by any permission they must meet the legislative requirements. The permission granted did not provide authority for the works undertaken. Such works that fall outside the scope of the permission constitute unauthorised development.
6.3 Mr. Bluett filed a supplemental affidavit where he asserts that the works were in compliance with planning permission and/or were an exempted development and that the issues of licences from the local authority was a matter of legal argument.
The validity of the planning permission was the subject of related judicial review proceedings before the court. In the present application the applicants were retrospectively seeking to call into question the validity of the planning permission which, in the circumstances, was not an appropriate matter to be raised in an application pursuant to s. 160.
He noted that Mr. Lawlor accepted the lodgement of drawings was common and good practice in planning applications, and the lodgement in the present case was merely to highlight that they showed clearly to any member of the public consulting the planning files the storm water outfall system was along the route identified thereon and coloured in accordance with the legends identified. The planning permission did provide authority for the works undertaken by the respondents. It was clear from the text of the permission, the description of the proposed development, the plans and drawings lodged with the application that the works the subject matter of the proceedings fell within the scope of the planning permission 04/126.
6.4 Ms. Aoife Smithwick, Solicitor referred to the orders sought restraining the respondents from carrying out the works which he said were authorised and the necessary legal consents were obtained.
She says that on 10th June, 2005 the local authority served on the respondents a warning letter pursuant to s. 152 of the Planning and Development Act 2000 asserting that the respondents were not in compliance with condition no 3 of the planning permission PO/126.
That letter stated, in part, as follows:-
” … it has come to the attention of Kilkenny Borough Council that you have not complied with the following condition of planning permission PO/126, which is an offence under the Planning and Development Act, 2000.
Condition No. 3 which states;
The service water sewer should be fully constructed and tested in a proper working condition prior to the commencement of any construction works on site.
REASON: in the interests of proper planning and sustainable development.
In this regard you are advised that you may make a submission or observation in writing to the planning authority regarding this offence not later than four weeks from the date of this warning letter.
Where Kilkenny Borough Council considers that unauthorised development is being carried out, I am to advise that you that an enforcement notice may be issued.”
Ms. Smithwick then referred to the letter from the Solicitor of the local authority dated 4th July, 2005 confirming that their clients instructed them that they were entirely satisfied that the work done (see 3.7 above).
7. Legal Submissions on behalf of the Applicants
7.1 Mr. Hardiman S.C., on behalf of the applicants, submitted that the storm water system was not in accordance with the planning permission. It was outside the site location of the map outlined in red on the application and was over public roads. He said that, at the date of the hearing, the pipeline was in place and, accordingly, the application for an injunction was to restrict the use of the system.
He submitted that Article 23 of the Planning and Development Regulations, 2001 was a mandatory provision and not simply directory and referred to Slough Estate v. Slough Borough Council (No. 2) (1971) AC 958; Crodaun Homes v. Kildare County Council [1983] I.L.R.M. 1; Dublin City Council v. Marren [1985] I.L.R.M. 593.
Counsel submitted that there were three parties involved the developer, the planning authority and the public. The regulations provide that the location of the land be “readily and reasonably identified”. In Dublin City Council v. Marren, where planning permission was obtained by default, Mr. Justice Barrington said in relation to a second application which referred to the plans in the first application that the plan was mandatory (at 600).
Accordingly, development outside the red line was unauthorised. There was valid planning permission for development within the red line. Moreover the description was limited to three streets. Dean Street was not included.
Counsel referred to Dunne v. Dublin County Council [1974] I.R. 45. The notice published in the newspapers did not contain “as a heading”, the name of “the area and the city, town or county in which the land” was situated. Mr. Justice Pringle held that the area contained in the notice “of the heading” is merely directory and not imperative but considers that the requirements with regard to the plans are inserted in order that the lands may be readily identifiable and that the requirements in regard to scale and north points are merely directory and not imperative (at 51-52).
Counsel submitted that there was a possibility that someone could be misled. The matter cannot be cured by the text of the planning permission if three streets are excluded. He referred to Monaghan UDC v. Alf-a-Bet Promotions [1980] I.L.R.M. 64 in relation to the nature and extent of development (at 68).
Section 160(1)(c) requires that the development be carried out in conformity with planning permission pertaining to land development.
There was no hardship or inconvenience to the respondent as matters could be resolved before the houses, the subject of the original planning permission, were built.
8. Submissions on behalf of the Respondents
Mr. Galligan S.C. submitted that the respondents have carried out development outside the scope of the grant of planning permission by Kilkenny Borough Council. It was necessary to construe the terms and conditions of the permission to ascertain whether the works associated with the drain fall within the scope of the permission. The principles for the construction of planning documents, including planning permissions, were set out by McCarthy, J. in X.J.S. Investments Limited [1986] I.R. 750.
The “development as described” is –
“A revised storm water system with attenuation, discharging via a new drain through Grange Road, Golf View Terrace, Thomas Street, Butts Green and adjacent car park to a new outfall at the Breagagh River beside the Butts Roundabout and ancillary related works – take note that planning permission P.56/03 relates to a residential development and ancillary related works. ”
It was submitted that the ordinary layman reading this decision to grant planning permission would understand it to mean that it permitted the developer to construct a revised storm water system and a new drain and that permission had already been granted for a residential development with associated infrastructure but an alternative method of provision of this infrastructure was being put forward. This is the literal meaning of the words used. The terms of the notification of the grant are equally clear.
It was further submitted that the Respondents were not only authorised to carry out the works complained of in these proceedings on foot of planning permission Ref. No. 56/03, they are also obliged and, indeed, could be compelled by the Courts under Section 160, to carry out the works in accordance with that condition. The Applicants have contended in these proceedings that the development must be carried out in accordance with the “site layout map” which is contained in exhibit “MC.2” in the grounding Affidavit of Mark Cantwell. This map would more appropriately have been described as a “site location map”. There is no development shown on this map and, therefore, it is inappropriately described as a “layout map “. Condition No. 1 requires the development to be carried out in accordance with the plans and particulars submitted with the application. This must include the plans which show the layout of the pipeline which form the subject matter of the application and the permission. The Applicants have sought to relegate the significance of these plans by describing them as “engineering drawings “. These plans are marked in block capitals – PLANNING – and are drawings forming part of the application. The fact that they have been prepared by engineers is hardly surprising considering the subject matter of the plans or drawings.
The Applicants are precluded from questioning the validity of the planning permission in these proceedings as Section 50 provides that any such challenge is confined to Judicial Review proceedings brought within the parameters of Section 50 of the 2000 Act.
It was also submitted that the applicants were not in a position to raise any issue as to the validity of the permission in the Judicial Review proceedings for three reasons:
1. The applicants do not have locus standi as they did not make an observation or submission on the planning application within the prescribed period under the Regulations so as to establish their locus standi for the purposes of Section 50 of the Planning and Development Act, 2000 (“the 2000 Act”)
2. The applicants’ proceedings were commenced outside the eight week time limit under Section 50 of 2000 Act.
3. The respondents also submitted in order to establish an entitlement to an order under s. 160(1) of the 2000 Act, the applicants have the onus of proof of establishing that an “unauthorized development” has been, is being or is likely to be carried out or continued.
In the present case, it is submitted that the works carried out associated with the surface water drain were carried out in compliance with the permission and, in particular, with Condition No. 1 of the permission which required the development to be carried out, inter alia, in accordance with the plans of the surface water drain. In this regard, it is submitted that the words “the development” in condition No. 1 can only refer to “the development as described” as set out on the face of the grant of planning permission. Furthermore, condition No. 3 expressly requires the surface water outfall sewer to be fully constructed prior to the commencement of any construction works on site. It is therefore submitted that in so far as the construction of the drain is necessitated by both condition Nos. 1 and 3 of the permission, and is being carried out in compliance with the said conditions, it does not constitute “unauthorised development” or “unauthorised works” for the purposes of Section 2(1) of the 2000 Act.
Finally, Mr. Galligan S.C. submitted that s. 13(10) of the Roads Act, 1993 (“the 1993 Act”) was relevant in so Far as it requires a person damaging or excavating a public road to have “lawful authority” or “the consent of a Road Authority”.
Section 254 of the 2000 Act provides for the granting of licences for, inter alia, the construction of a pipeline on, under, over or along a public road. Such a licence is not necessary where the construction of the pipeline is authorised in accordance with a planning permission. The Road Opening Licences in the present case are not expressly granted under Section 254 of the 2000 Act. If the Respondents had not applied for and obtained planning permission for the surface water drain, they would have been entitled to apply for and obtain a licence pursuant to Section 254 of the 2000 Act. On the assumption that the Road Licences granted by the planning authorities were not intended to be granted pursuant to Section 254 of the 2000 Act, it is difficult to imagine that the planning authority would have refused to grant such a licence in circumstances where they were prepared to grant Road Opening Licences.
The surface water drain the subject matter of these proceedings was separately considered by the planning authority in the context of two different consent procedures and, in each case, the planning authority was willing to give its consent to the development proposed
9. Decision of the Court
9.1 The rationale behind the statutory constraints imposed upon judicial review, initially by Section 19 of the Local Government (Planning and Development) Act, 1992, is to ensure that there was certainty in relation to the legal status of substantial commercial developments. In K.S.K. Enterprises v. An Bord Pleanála [1994] 2 I.R. 128 at 135 Finlay, C.J. stated as follows:
“From these provisions, 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 substantial 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.”
9.2 There are three proceedings running somewhat in parallel only one of which concerns this court. The first is the s. 160 application. The second is an application for judicial review against the planning authority in relation to the alleged unauthorised development. There are also proceedings in relation to compliance with the Roads Act by way of notice of motion dated 18th July, 2005 seeking an order directing the respondents to open up the public roads and preventing them from closing any of the roads without the statutory consent required under s. 75 of the Roads Act, 1993.
At the date of the hearing earlier this month, from the 3rd to 6th October the development had been completed. Accordingly, I am unsure as to the practicality of the order sought by that motion.
In respect of the judicial review proceedings which is not before the court I understand that an application for an extension of time is required. Those proceedings are, of course, ones in which the respondent is the planning authority and the respondents herein are, presumably notice parties.
The present application is for orders pursuant to s. 160 of the Planning and Development Act, 2000. The first relief seeks an order prohibiting the respondents from carrying out any or any further unauthorised development in relation to the specified roads.
The second order is to reinstate the lands and roadways aforesaid. It is common case that the lands and roadways have been reinstated and, indeed, that the local authority is satisfied, according to its solicitors letter dated 21st June, 2005, that this has been done in a satisfactory manner.
Mr. Hardiman S.C., says that, in the circumstances, he requires an order prohibiting the use of the surface water system by way of blocking up the access from the respondents housing site the subject of the previous planning permission P56/03.
While no formal application was made to amend the notice of motion no argument was made by the respondent that such relief was ultra petita. I, accordingly, proceed on the basis that the pleadings be amended so that the court can consider that relief.
9.3 Once planning permission has issued, the onus is on an objector to prove that it is invalid. Section 50(2) of the Planning and Development Act, 2000 provides that a person shall not question the validity of –
(a) a decision of the planning authority –
(i) on the application for a permission under this part, or
(ii) under s. 179 other than by way of an application for judicial review under Order 84 of the RSC.
Section 179 refers to a local authority’s own development. While there had been some argument in relation to whether the respondent was carrying out development on behalf of the local authority and, indeed, the court was not pressed on this point, it seems clear that the development was that of the respondent and, accordingly, s. 179 has no application.
The applicant has, as already noted, also proceeded by way of judicial review proceedings pursuant to s. 50.
An initial point arises whether the court has any jurisdiction to deal with a s. 160 application when the basis for such an application is the question of the validity of the planning permission granted. In passing it it should be noted that leave will not be granted for an application for judicial review unless the applicant shows to the satisfaction of the court that the applicant had made submissions or observations in relation to the proposed development or that there were good and sufficient reasons for his or her not making objections, submissions or observations as the case may be (see 50(4)(c)).
The reliefs available under s. 160 are limited:
(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or Circuit Court may, on the application of the planning authority or any other person, whether or not the person has an interest in the land the Court by order require any person to do or not to do, or cease to do, as the case maybe, anything that the court considers necessary and specifies in the order to ensure, as appropriate, the following:-
(a) that the unauthorised development is not carried out or continued;
(b) insofar as practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
(2) In making an order under sub-section (1), where appropriate, the court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”
Leaving aside for the moment that the applicant in the present case bases his claim on unauthorised development which properly requires determination in judicial review proceedings, the reliefs which the court may grant by order is restricted to (a) (b) and/or (c).
Unauthorised development is defined in s. 2 as follows:-
“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 use is defined in the following terms:-
“Unauthorised use” means in relation to land, use commenced on or after the 1st October, 1964, been 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 s. 4 of the Act of 1963 or s. 4 of this Act) or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 or under s. 34 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 the permission is subject.”
Unauthorised works are defined in similar terms.
Now it seems clear that, in the present case planning permission has issued and has not been revoked and, accordingly, the works are not unauthorised and the use is not unauthorised.
The permission with regard to the restoration to its condition prior to the commencement of any unauthorised development does not arise.
Moreover, the development would appear to have been carried out in conformity with the permission pertaining to that development and, indeed, notwithstanding the warning letter of 10th June, 2005, the conditions would appear to have been complied with as evidenced by the letter from the local authority’s solicitor dated 4th July, 2005.
Moreover s. 160(2) does not appear to allow the court to restrict the user of development even if it is proved to be unauthorised. The power of the court is to order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature. This, of course, only arises where it is proven that the development is unauthorised.
It follows, accordingly, that an application for an order pursuant to s. 160 must fail so long as the permission remains unrevoked. There is no application before the court to have the permission revoked for indeed, that is a matter for judicial review and not for injunctive relief in relation to unauthorised development.
It is clear that s. 160 applies to development in respect of which no planning permission has been applied for or, having been applied for, is refused.
It may not, accordingly, be necessary to deal with the issues of non-compliance raised by the applicant regarding the application.
If I am wrong in so holding, I should proceed to deal with the issues raised.
9.4 It is clear that the impugned application arose because of the engineering difficulties in relation to the previous planning permission which was granted. Some of the issues raised by the applicant have been answered in relation to the permits granted by the local authority and the notices given to the public. The non-inclusion of Dean Street could not have been relevant. The fact that the applicant did not appear to have had sight of the warning letter is not conclusive in relation to whether or not it was on the main file or on an enforcement file. The drawings DP/01 and DP/02 which in fact were civil and structural engineer drawings, were on the file and were, indeed, copied by the applicants’ own engineers, were part of the planning application.
9.5 The site map surrounded in red was clearly part of the previous application and, to that extent, had no relationship to the application for planning permission for the outfall.
Full plans had been submitted to the planning authority indicating the location of the new proposed outflow delineated in blue. The description on the face of the planning permission related to the proposed outflow.
The permission granted related to those plans. Condition 1 provided that:
“1. The development shall be carried out in accordance with the plans and particulars submitted on the 03/12/04, and further information submitted on 17/02/05 save as amended by the conditions attached hereto.
REASON: In the interests of the proper planning and sustainable development of the area.”
The wording of Condition No. 3 leaves little room for doubt as to what the planning authority’s intention was. It provides –
“3. The surface water outfall sewer shall be fully constructed and tested and in proper working condition prior to the commencement of any construction works on site.
REASON: In the interests of proper planning and sustainable development.”
The note at the end of the planning permission, is in the following terms:
“A Road Opening Licence from Kilkenny Borough Council must be obtained before carrying out works in/on/to/under a public toad (sic) and/or footpath.”
The only outstanding consent which the applicant/developer was obliged to obtain for the surface water outfall drain was a Road Opening Licence.
While the respondents were incorrect in not including the drain within the red line, this is a matter which does not go to the validity of the planning permission.
It is clear that the engineering drawings, albeit indicating the storm drain in blue on DG/01 and DG/02 do not seem to me to be such a breach of regulation 23 as to invalidate the planning permission granted. In relation to the provision therein that the site boundary should be clearly delineated in red, the identification of the route of drainpipes cannot, in any event, require a site boundary in the same manner as the boundaries of the housing site. The route of the storm water outflow has been outlined through in blue and not in red.
The respondents submitted that the acknowledgement by the planning authority for the purposes of Article 26 signified compliance with Articles 22 and 23. The planning authority in the present case issued an acknowledgement for the purposes of Article 26 of the Planning & Development Regulations, 2001 (“the 2001 Regulations”). It is worth setting out the terms of this Article in full:
“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 he 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.”
Article 23 refers back to Article 22 which deals with the content of planning applications generally.
Sub-article (1) provides that an application is only deemed to be invalid for the requirements of Articles 18, 19(1)(a) or 22 and, as may be appropriate, if Articles 24 or 25 are not complied with. The requirement that “the site boundary shall be clearly delineated in red” is one of the requirements contained under Article 23 and, accordingly, its omission cannot be deemed to invalidate the application for permission.
If the planning authority is not satisfied that plans, drawings or maps accompanying a planning application do not comply with the requirements of Article 23, it can make a request pursuant to Article 33(1) of the 2001 Regulations.
The planning authority chose not to request fresh plans indicating the surface water drain outlined in red.
The remedy originally sought by the applicants to prohibit the development of the storm water outfall and the reinstating of the lands and roadways is rendered somewhat vacuous by reason of the completion of the development at the time of the hearing last month.
The alternative relief sought which was not the subject of an application for amendment seems to the court to be unduly restrictive. To seek to nullify a development even for every non-compliance with an alleged mandatory provision would leave the court with little discretion.
There is no general rule to that effect.
McCarthy J. in Re X.J.S. Investments v. Dun Laoghaire [1986] I.R. 750 at 756 held that:
“Certain principles may be stated in respect of the true construction of planning documents:
(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material.
(b) They are to be constructed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning … “.
These principles have been affirmed, more recently, by McKechnie J. in Kenny v. An Bord Pleanála [2001] 1 IR 565, and also by Quirke J. in Dublin City Council v. Liffeybeat Limited (Unreported, High Court, 10th March, 2005).
The burden of proof was on the respondents as was evident from Frank Dunne v. Dublin County Council [1974] I.R. 45 at 50 where Mr. Justice Pringle stated:-
“It appears that there is no general rule as to when a statutory enactment is imperative and when it is merely a directory. As Lord Campbell said in Liverpool Borough Bank v. Turner (1861) 30 L.J. Ch. 379, “no universal rule can be laid down for the construction of statutes as to whether mandatory enactments should be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be constructed. It appears to be clear that some provisions in an enactment may be imperative and others may be directory”.
While they do not have to, there is no restriction on persons applying for relief to the court showing that they have been prejudiced. The matter of prejudice is a matter that the court can take into account in the exercise of its equitable jurisdiction to grant or not grant injunctive relief.
The injunctive relief now being sought by the applicants, apart from not according with the provisions of s. 160(2), seems to me to be one in which the court could not in any event grant. To block the outfall in relation to the surface water accumulating on the site would be tantamount to perverting the course of nature and, in the case of storm water, would create a nuisance, not only to the respondents, but also to the surrounding area. Such nuisance would become more acute relative to the site density of the development where surface water will not have the same area for absorption.
In the circumstances the court must refuse the relief sought.
Krikke v Barrannafaddock Sustainability Electricity Ltd
[2019] IEHC 825
JUDGMENT of Mr Justice Garrett Simons delivered on 6 December 2019INTRODUCTION1. This matter comes before the High Court by way of an application pursuant to Section160 of the Planning and Development Act 2000 (“the PDA 2000”). Section 160 isintended to provide a summary procedure whereby breaches of the planning legislationcan be brought before the court expeditiously. The procedure is colloquially described asan application for a “planning injunction”. The procedure is available to “any person”, andbenefits from special costs rules under Part 2 of the Environment (MiscellaneousProvisions) Act 2011.2. The principal legal issues which fall for determination in the present case all concern theinteraction between the respective competences of local planning authorities, An BordPleanála and the courts. In particular, an issue arises as to the weight, if any, whichmust be given to a Section 5 declaration in subsequent enforcement proceedings. Anissue also arises as to the legal status of a decision made by the local planning authoritypurporting to agree points of detail pursuant to a planning condition.3. The facts of the case are straightforward. The respondent is the operator of a wind farm(hereinafter “the Developer”). The wind farm is located in the townland of Ballyduff,County Waterford. The relevant planning permission had authorised the erection of windturbines of a particular scale and dimensions. In the event, wind turbines of a differentscale and dimensions have been erected instead. The principal distinction between the“as permitted” and the “as built” turbines is that the rotor blade diameter has increasedfrom 90 metres to 103 metres. This deviation is said, by the Developer, to have beencompensated for by a reduction in hub height, which has the consequence that the overalltip height has remained at the permitted level of 125 metres.4. An Bord Pleanála has since made a declaration pursuant to Section 5 of the PDA 2000 tothe effect that the alterations to the turbines, including the length of the rotor blades, donot come within the scope of the planning permission. The Applicants contend that theDeveloper is precluded by the existence of this Section 5 declaration from reagitatingbefore this court an argument that the “as built” turbines are authorised by the planningPage 2 ⇓permission. In response, the Developer seeks to rely on an earlier decision, namely thedecision of the planning authority to “agree” points of details in respect of the windturbines. This earlier decision was made pursuant to a condition of the planningpermission which left over points of detail, including the design, height and colour of theturbines, for agreement with the planning authority. It is said that neither the Applicantsnor this court is entitled to look behind this decision in circumstances where same has notbeen challenged in judicial review proceedings.5. The Developer has advanced a number of other arguments for saying that there has beenno “unauthorised development”, and contends, in the alternative, that relief should berefused as a matter of discretion.6. The Developer, whilst maintaining the formal position that the change in turbine type isauthorised by the planning permission, has, nevertheless, made two attempts to obtaindevelopment consent retrospectively in respect of the “as built” turbines. First, theDeveloper made an application for leave to apply for “substitute consent” under Part XA ofthe PDA 2000. The application for leave was refused by An Bord Pleanála by decisiondated 13 August 2019. This decision is now the subject of judicial review proceedingsbefore the High Court. These judicial review proceedings have been taken by all of theApplicants herein. The parties informed the court last week (28 November 2019) that thejudicial review proceedings are not being opposed by An Bord Pleanála, but that there islikely to be a dispute as to whether the matter should be remitted to the Board. Thismatter is listed for hearing in the Commercial List this morning (6 December 2019).7. Secondly, the Developer had made an application for retention planning permission to thelocal planning authority pursuant to Section 34(12) of the PDA 2000. This application hadbeen submitted to Waterford City and County Council on 4 October 2019. This applicationhas since been withdrawn in early November 2019.STRUCTURE OF THIS JUDGMENT8. This judgment is structured as follows. The factual background to the dispute will be setout in more detail under the next heading below. This chronology will include morerecent events, such as the decision on the part of An Bord Pleanála to refuse leave toapply for substitute consent.9. The legal issues will then be addressed in the following sequence. First, the legal statusof the Section 5 declaration will be considered. This will be the lengthiest part of thejudgment. This is because there is a significant body of case law in relation to Section 5,and it is necessary to examine same in some detail. Secondly, the court will consider denovo the question of whether the change in turbine type represents unauthoriseddevelopment. This exercise is carried out on a de bene esse basis. Thirdly, the legalstatus of the planning authority’s purported agreement to the compliance submission willbe considered. Fourthly, the factors which are relevant to the exercise of the court’sdiscretion will be addressed. Finally, the principal conclusions of the court will besummarised at the end of this judgment.Page 3 ⇓FACTUAL BACKGROUNDTHE PLANNING PERMISSIONS10. An Bord Pleanála granted planning permission on 22 November 2005 for the developmentof a wind farm. (Reg. Ref. 04/1559) (“the 2005 planning permission”). The planningapplication had initially sought permission for the erection of twelve wind turbines. Itseems, however, that revised plans and particulars were subsequently submitted, andone of the proposed turbines was omitted and the scale and dimensions of three of theturbines were reduced.11. The development is of a type which is subject to the requirements of the EnvironmentalImpact Assessment Directive (2011/92/EU) (“the EIA Directive”). This is because theproposed development exceeded the threshold for a mandatory environmental impactassessment (“EIA”) under Schedule 5 of the Planning and Development Regulations 2001.As such, the planning application had to be accompanied by an environmental impactstatement (“EIS”), and An Bord Pleanála was required to carry out an EIA as part of itsdecision-making.12. The planning permission, as granted by An Bord Pleanála, allowed for the erection ofeleven wind turbines and other associated development. More specifically, the planningpermission authorised the erection of eight wind turbines with a hub height of 80 metresand a blade length of 40 metres (equivalent to a rotor diameter of 80 metres), and afurther three wind turbines with a hub height of 60 metres and a blade length of 40metres (equivalent to a rotor diameter of 80 metres). The two sets of wind turbineswould have had an overall tip height of 120 metres and 100 metres, respectively.13. The following two conditions of the 2005 planning permission are relevant to the issueswhich arise in these proceedings.1. The development shall be carried out in accordance with the plans and particularslodged with the application, as amended by the revised information received by theplanning authority on the 3rd day of February, 2005, the 22nd day of February,2005 and the 27th day of May, 2005, except as may otherwise be required in orderto comply with the following conditions. For the avoidance of doubt, thispermission relates only to 11 number turbines only with the layout of the turbinesas that received on 27th day of May, 2005.Reason: In the interest of clarity.3. Prior to commencement of development, details of the proposed turbines andassociated structures, including design, height and colour shall be submitted to andagreed in writing with the planning authority. The wind turbines shall be geared toensure that the blades rotate in the same direction. In default of agreement, thematter shall be referred to An Bord Pleanála for determination.Reason: In the interest of visual amenity.Page 4 ⇓14. The first condition had the legal effect of confining the permitted development to that asset out in the revised information received by the planning authority, i.e. the scale anddimensions of three of the turbines had been reduced. The third condition has since beenreplicated in a subsequent decision of the planning authority (2011) which authorisedcertain modifications in respect of the proposed development.15. The next event of relevance is that the “appropriate period” of the 2005 planningpermission, i.e. the time period within which development works could be lawfully carriedout, had been extended on 29 November 2010 for a further period of five years. (22November 2015). But for this extension, the planning permission would have withered in2010.16. The Developer subsequently submitted an application in 2011 for permission for a“modification” to the permitted wind farm development. The hub height of the threesmaller turbines was to be increased to 80 metres; and the blade length of all eleventurbines was to be increased to 45 metres (equivalent to a rotor diameter of 90 metres).All eleven turbines would, therefore, have an overall tip height of 125 metres.17. The application had been made, at first instance, to the local planning authority,Waterford County Council. (Reg. Ref. PD 11/400). The planning authority made adecision on 23 November 2011 to grant planning permission (“the 2011 planningpermission”).18. Condition No. 1 of the 2011 planning permission provides as follows.“1. The proposed development shall be carried out in accordance with plans andparticulars lodged with the Planning Authority on 30 September 2011 save whereamended by the conditions herein.Reason: to clarify the scope of the permission in the interests of developmentcontrol.”19. As explained under the next heading below, Condition No. 3 of the 2011 planningpermission required points of detail to be agreed subsequently with the planningauthority.20. It does not appear from the face of the planning authority’s decision of 23 November2011 that an EIA had been carried out by the planning authority.21. For the sake of completeness, it should be noted that a further application for planningpermission was made in 2013. This related to what has been described as “Phase 2” ofthe wind farm. The decision of the planning authority at first instance was to grantplanning permission for an extension to the permitted wind farm, comprising three(additional) turbines with a tip height of up to 130.5 metres and associated access tracksand site works. An environmental impact statement (“EIS”) had been submitted with thisapplication. Thereafter, there was an attempt made by third parties to appeal thePage 5 ⇓planning authority’s decision to An Bord Pleanála. The appeal was, however, dismissed asinvalid.22. Condition No. 7 of the 2013 planning permission stipulates that the maximum blade tipheight of the (three) proposed wind turbines shall be 130.5 metres. No complaint ismade in these proceedings in respect of this second phase of the wind farm.23. The wind farm, as constructed, consists of twelve turbines. Nine of these turbines havebeen constructed pursuant to the earlier planning permissions. (Two permitted turbineshave been omitted). The balance of three turbines has been constructed pursuant to the2013 planning permission. These Section 160 proceedings are concerned only with thefirst nine turbines.COMPLIANCE SUBMISSION: 13 DECEMBER 201324. Condition No. 3 of the 2011 planning permission provides as follows.“3. Prior to commencement of development, details of the proposed turbines andassociated structures, including design, height and colour shall be submitted to andagreed in writing with the planning authority. The wind turbines shall be geared toensure that the blades rotate in the same direction.Reason: In the interest of visual amenity.”25. Given the importance which they have since assumed as an issue in these proceedings, itis necessary to set out in some detail the events in relation to the compliance submissionmade pursuant to this condition.26. The consultants acting on behalf of the Developer, Fehily Timoney & Company, made acompliance submission to Waterford County Counsel under cover of letter dated 6November 2013. This compliance submission sought the agreement of the planningauthority in relation to points of detail under a number of the conditions of the 2011planning permission. Relevantly, the compliance submission addressed Condition No. 3 ofthe planning permission as follows.“4.1. Condition WordingPrior to commencement of development, details of the proposed turbines andassociated structures, including design, height and colour shall be submitted to andagreed in writing with the planning authority. The wind turbines shall be geared toensure that the blades rotate in the same direction.Reason: In the interest of visual amenity.4.2. Developers Compliance ProposalThe preferred model being considered for installation at Barranafaddock Wind Farmis the GE 2.x Series wind turbine.Page 6 ⇓DesignTechnical details of the selected turbine model are included in Appendix B of thisreport. The document summarizes the technical description and specification of theGE 2.x Series wind turbines and includes a number of available turbine variants.The 2.x Series are three-bladed, upwind, horizontal-axis wind turbines with theturbine rotor and nacelle mounted on the top of a tubular tower.HeightThe preferred turbine is installed on a tapered tubular tower of hub height 73.5mwith a maximum tip height of 125m. Schematic details of the GE turbinearrangement proposed are included in Appendix B.ColourThe wind turbines will be finished in a light grey colour.At this stage the developer requests that the Planning Authority confirm that theproposed turbine is considered appropriate.The turbines will be geared to ensure that the blades rotate in the same direction.”27. As appears from the foregoing, the compliance submission does not expressly state thatthe planning authority’s agreement was being sought in respect of an increase in rotordiameter from 90 metres to 103 metres.28. The above text from the compliance submission does, of course, refer to Appendix B.One of the documents included in Appendix B is a drawing labelled “LE13-731-04-0 10(Rev. A)”. This drawing had been submitted in A3 format. This drawing shows aschematic of a wind turbine, and indicates, albeit in very small font, that the rotordiameter is 103 metres.29. The compliance submission also included a document prepared by GE Energy entitled“Technical Documentation Wind Turbine Generator Systems 2.x Series”. Page 14 of thislatter document sets out, in tabular form, Technical Data for the 2.x Series. The rotordiameter for the various models of the turbines is indicated as ranging between 100metres and 103 metres.30. The response of Waterford County Council to the compliance submission was to issue aletter to the Developer, care of Fehily Timoney & Co., on 13 December 2013 (“thedecision-letter”). The decision-letter is less than three pages in length. In effect, thedecision-letter merely lists off various conditions of the 2011 planning permission, with abrief observation below each.31. Insofar as Condition No. 3 is concerned, the decision-letter states as follows.“Condition 3Noted and agreed.”Page 7 ⇓32. There is no analysis in the decision-letter of the compliance submission. Nor is there anyexpress acknowledgement that the planning authority were agreeing to an increase inrotor diameter from 90 metres to 103 metres.SECTION 5 REFERENCE33. Waterford City and County Council made a reference to An Bord Pleanála pursuant to theprovisions of Section 5 of the PDA 2000 on 24 May 2018. (Ref. ABP-301738-18).34. The question referred was as follows.“Whether the deviation from the permitted blade length of 45 metres (90 metres indiameter) to the constructed blade length of 51.5 metres (103 metres in diameter)in relation to permission granted under planning register reference number PD11/400 for modifications to a windfarm at Barranafaddock Wind Farm, CountyWaterford is or is not development or is or is not exempted development?”35. The Developer made a detailed submission on the Section 5 reference through itsconsultants, Fehily Timoney & Company, on 29 June 2018. It is apparent from thissubmission that the Developer was fully aware that an earlier Section 5 Declaration issuedby An Bord Pleanála in respect of the Kilvinane Wind Farm was potentially relevant. TheDeveloper also sought to rely on the planning authority’s decision-letter of 13 December2013.36. The submission on behalf of the Developer summarised its conclusions as follows.“7.0 ConclusionIn summary, the deviation of the rotor diameter from 90m to 103m can beconsidered immaterial in planning terms because:1. The nature and scale of the windfarm development is such that the increasein rotor diameter is not a material alteration.2. There has been no alteration to the turbine locations and the increase in rotordiameter of 14% is significantly less than the 40% alteration which wasfound to be material in Bailey v. Kilvinane.3. On the basis of the comparative environmental analysis, it can be concludedthat there are no significant changes to the environmental impacts arisingfrom the change in rotor diameter.4. Waterford County Council, in approving the detailed design of the turbines in2013, did not consider the increase in rotor diameter to be material inplanning terms.”37. The reference above to a “comparative environmental analysis” is to a separate documentwhich had been included as part of the submission to An Bord Pleanála. This is a detailedsix-page analysis which compares the environmental impact of the “as permitted” and “asbuilt” wind turbines. The comparative environmental analysis concludes by stating that“there are no significant changes relating to the environmental impacts, based on thePage 8 ⇓methodologies employed in the September 2011 Environmental Report submitted as apart of the planning application for the permitted development”.38. As is standard practice, An Bord Pleanála assigned an inspector to prepare a report andrecommendation in relation to the Section 5 reference.39. It is evident from the inspector’s report that the Developer had made a similarjurisdictional objection to that which it seeks to agitate in these proceedings. Morespecifically, as appears from the following passage at page 5 of the inspector’s report, theDeveloper had sought to rely on the decision-letter of 13 December 2013 as authorisingthe alterations in the scale and dimensions of the wind turbines.“The owner / occupier has submitted a response to the PA referral request whichprovides for a summary of the planning history associated with the wind farmdevelopment. The submission also note that Waterford City & County Councilissued a compliance response in December, 2013 indicating that the turbineerected on the site was noted and agreed. The response questions theappropriateness of the Section 5 Referral with regard to the particular questionraised by WCCC in the context of the planning compliance agreed. It is furtherconsidered that the statement under the heading ‘Reason for Referral’ may give theincorrect impression that WCCC was not aware of the change in blade length before2016. […]”40. This summary in the inspector’s report reflects the points made, in particular, at §5.2.1 ofFehily Timoney & Company’s submission.41. The inspector indicated (at pages 10 and 11 of her report) that she would have “noobjections in principle” to the alterations given that the overall tip height of the windturbines continued to comply with the specific condition of the planning permission. (Itwill be recalled that the increase in the length of the rotor blades had been off-set by areduction in the hub height). The inspector went on to say, however, that An BordPleanála itself had adopted a different approach in relation to the Kilvinane Wind Farm.As discussed presently, the Kilvinane Wind Farm is the subject of a judgment of the Courtof Appeal. An order had been made under Section 160 restraining the operation of a windfarm, the turbines of which did not comply with the scale and dimensions permitted.42. The approach which An Bord Pleanála had taken in relation to the Kilvinane Wind Farmhad been summarised as follows in the inspector’s report.“The Board will note a similar Section 5 request in relation to the Kilvinane WindFarm, PL88.RL2891 refers, whereby the developer of that windfarm receivedconfirmation from the PA that a number of changes made, including a reduction inturbine hub heights, increased rotor blade lengths, reduction in the number ofturbines installed and a change of location of turbines within 20m of the permittedlocations, were not material and complied with the permission granted. The Board,following a Section 5 request from a third party, concluded that –Page 9 ⇓(a) the erection of the turbines comes within the scope of the definition ofdevelopment contained in Section 3 of the Planning and Development Act2000,(b) the relocation of and alterations to turbines, including the modification to theoverall height of the turbines and the length of the rotor arms/blades do notcome within the scope of the permission granted,(c) there is no provision for exemption for the said relocation and alterations toturbines provided for in either Section 4, as amended, of the said Act orArticle 6 of the Planning and Development Regulations 2001, and(d) therefore, the construction of the wind turbines as currently erected on siteincluding alterations and modifications to the turbines height and rotorarms/blades is development and is not exempted development.”43. The inspector’s own conclusion was then set out as follows.“8.9. Is or is not exempted developmentWhile I would have no objections in principle to the alterations to the blade lengthas constructed, given that the hub heights have been reduced and the overall tipheight has complied with the specific condition of planning permission, in light ofthe determination in relation to PL88.RL2891, a precedent might be considered ashaving been set. In this regard, I refer to the Boards consideration of the physicalalterations to turbines – in particular the alterations to blade length and the overallheight of the turbines – did not come within the scope of the relevant planningpermission, it is possible to conclude in this case that the reduction in the hubheight and the increased length of the rotor length, notwithstanding the fact thatthe permitted tip height of 125m has been maintained, do not come within thescope of the planning permission granted. In addition, the Board will note thatthere is no provision for exemption for the alterations to turbines provided for ineither Section 4 of the Planning & Development Act 2000, as amended or Article 6of the Planning & Development Regulations, 2001, as amended. As such, thedevelopment is not exempted development.”44. An Bord Pleanála ultimately accepted the inspector’s recommendation. The Board made adeclaration on 4 December 2018.45. The operative part of the Board Order reads as follows.“AND WHEREAS An Bord Pleanála has concluded that -(a) the erection of the turbines comes within the scope of the definition ofdevelopment contained in Section 3 of the Planning and Development Act2000,(b) the alterations to turbines, including the length of the rotor arms/blades, donot come within the scope of the permission granted,Page 10 ⇓(c) there is no provision for exemption for the said alterations to turbines ineither Section 4, as amended, of the said Act or Article 6 of the Planning andDevelopment Regulations 2001, and(d) therefore, the construction of the wind turbines as currently erected on siteincluding the alterations to the rotor arms/blades is development and is notexempted development.NOW THEREFORE An Bord Pleanála, in exercise of the powers conferred on it bysection 5 (4) of the 2000 Act, hereby decides that the deviation from the permittedblade length of 45 metres (90 metres in diameter) to the constructed blade lengthof 51.5 metres (103 metres in diameter) in relation to permission granted underplanning register reference number PD11/400 for modifications to a windfarm atBarranafaddock Wind Farm, County Waterford is development and is not exempteddevelopment.”46. The Developer took no steps to challenge the validity of An Bord Pleanála’s determinationby way of judicial review proceedings.ENFORCEMENT NOTICE47. Following on from An Bord Pleanála’s declaration, the planning authority issued a warningletter dated 20 December 2018. An enforcement notice was subsequently issued inrespect of the wind farm development. This enforcement notice is dated 22 March 2019.The Developer then instituted judicial review proceedings in May 2019 seeking tochallenge the validity of the enforcement notice. It seems that the operation of theenforcement notice has been stayed pending the outcome of these judicial reviewproceedings.APPLICATIONS FOR RETROSPECTIVE DEVELOPMENT CONSENT48. The Developer maintains the position that the change in the scale and dimensions of thewind turbines is authorised by the 2011 planning permission. Without prejudice to thisposition, the Developer had submitted an application to An Bord Pleanála for leave toapply for substitute consent on 29 January 2019.49. It may be of assistance to the reader to pause briefly here, and to explain the concept of“substitute consent”. The planning legislation had to be amended following a judgment ofthe Court of Justice of the European Union (“CJEU”), Case C-215/06, Commission v.Ireland, which had held that the blanket provision made for retention planning permissionunder the pre-2010 version of the PDA 2000 was inconsistent with the EIA Directive. Theoption of making an application for retention planning permission is no longer available inrespect of an EIA development project which has been carried out in breach of either therequirement for a screening determination or for a full EIA.50. The planning status of such an EIA development project may only be regularised by anapplication for substitute consent under Part XA of the PDA 2000. There is no automaticright to apply for substitute consent. Rather, a developer will, generally, be required toapply first for leave to make the application. Such an application for leave is made to AnPage 11 ⇓Bord Pleanála. (There are special rules in relation to quarrying activity, but these are notrelevant to this case).51. On the facts of the present case, the Developer had made a leave-application to An BordPleanála on 29 January 2019, that is, shortly after An Bord Pleanála had issued its Section5 declaration. An Bord Pleanála subsequently made a decision refusing leave to apply on13 August 2019. The approach adopted by An Bord Pleanála appears to have been that itwas not necessary to obtain substitute consent. The validity of An Bord Pleanála’sdecision has been challenged in two separate sets of judicial review proceedings whichhave been entered into the Commercial List of the High Court. The first of theseproceedings has been taken by the Applicants herein; the second by Mr Peter Sweetman.52. The parties informed me last week (28 November 2019) that An Bord Pleanála does notintend to oppose those judicial review proceedings. The Board is conceding the judicialreview proceedings on the very narrow ground that the Board’s records of the decision-making process are inadequate. The Board has been careful to note in correspondencethat its approach does not involve any concession by the Board of any of the additionalgrounds of judicial review relied upon by the Applicants.53. The parties to the judicial review proceedings are in disagreement as to the precise basison which the Board’s decision is to be set aside, and, as to whether the application forleave to apply for substitute consent should be remitted to An Bord Pleanála forreconsideration. These matters are to be the subject of a separate hearing before theCommercial List of the High Court this morning.54. The Developer had also made an application for retention planning permission toWaterford City and County Council. That application had been made on 4 October 2019,but has now been withdrawn.55. I will return to consider the relevance of these applications, towards the end of thisjudgment, when I come to address the factors informing the exercise of the court’sdiscretion in Section 160 proceedings.SUPPLEMENTARY LEGAL SUBMISSIONS56. By order dated 28 November 2019, the parties were given liberty to file supplementalwritten legal submissions addressing the implications for the within proceedings, if any, ofthe very recent judgment of the CJEU in Case-261/18, Commission v. Ireland(Derrybrien) and Mone v. An Bord Pleanála [2010] IEHC 395. The submissions werereceived by the court on 5 December 2019.DETAILED DISCUSSION OF LEGAL ISSUESSTATUS OF SECTION 5 DECLARATION57. The first legal issue to be addressed in this judgment is whether the finding by An BordPleanála, i.e. that the increase in the length of the rotor blades does not come within thescope of the planning permission granted, is binding on the parties. Put otherwise, doesthe Section 5 declaration give rise to a form of issue estoppel which precludes theDeveloper from reagitating, before this court, the argument which it had lost before AnPage 12 ⇓Bord Pleanála to the effect that the deviations are within the scope of the planningpermission.58. Leading counsel for the Applicants, Mr John Rogers, SC, submits that the Section 5reference is binding. Counsel cites, in particular, the judgment in Cleary Compost andShredding Ltd v. An Bord Pleanála (No. 1) [2017] IEHC 458, [104] to [118]. Thatjudgment, in turn, relies on the Court of Appeal judgment in Killross Properties Ltd.v. Electricity Supply Board [2016] IECA 207; [2016] 1 I.R. 541.59. In the Applicants’ written legal submissions, it is stated that An Bord Pleanála hasconcluded that the alteration was not only “development”, but also that it was not an“exempted development”, and that it was carried out in breach of a permission and theconditions thereof. It is further submitted that the Board’s finding “removed any room forargument” on the part of the Developer with regard to the status of the development.60. Leading counsel on behalf of the Developer, Mr Declan McGrath, SC, has sought to arguethat An Bord Pleanála does not have jurisdiction under Section 5 of the PDA 2000 to makea finding that “unauthorised development” has been carried out. It is further submittedthat for the Board to have found that the “as constructed” wind turbines had not beencarried out in accordance with the planning permission would, by necessary implication,involve an (impermissible) finding that the Developer had carried out “unauthoriseddevelopment”. Counsel cites, in particular, Roadstone Provinces Ltd. v. An Bord Pleanála[2008] IEHC 210; Heatons Ltd. v. Offaly County Council [2013] IEHC 261; and MeathCounty Council v. Murray [2017] IESC 25; [2018] 1 I.R. 189; [2017] 2 I.L.R.M. 297. It issought to distinguish the judgment in Killross Properties on two bases: (i) the Section 5declaration in that case was to the effect that the development was not “exempteddevelopment” which is a finding within the Section 5 jurisdiction; and (ii) it was theapplicant, not the respondent, who was held to be bound by the Section 5 declaration. Itis submitted that a respondent, faced with proceedings which place reliance on a publiclaw measure, may be justified in challenging the validity of the measure concerned eventhough that party might be, strictly speaking, out of time in maintaining a direct challengeto the relevant measure (Shell E & P Ireland Ltd. v. McGrath [2013] IESC 1, [2013] 1 I.R.247, [49]).61. It is further submitted that the court should lean against an interpretation of the Section5 declaration which would involve attributing to the Board a finding that the developmentwas in breach of planning permission. (Such a finding would, on the Developer’sargument, be ultra vires). The court should instead interpret the Section 5 declaration assaying no more than that the erection of wind turbines constitutes “development” and isnot “exempted development”.62. The Developer submits that the operative part of the Section 5 declaration is confined tothe very last paragraph thereof, i.e. the paragraph commencing with the words “NOWTHEREFORE An Bord Pleanála …”. (The Board’s declaration has been set out in full atparagraph 45 above). This narrow interpretation of the declaration would, it is submitted,“square the circle” by rendering the Board’s declaration in a manner which holds it intraPage 13 ⇓vires. The decision would otherwise be unlawful and invalid. This is because, on theDeveloper’s argument, An Bord Pleanála had no jurisdiction to decide what falls within oroutwith a planning permission.ANALYSIS OF THE ARGUMENTS ON SECTION 563. It is proposed to structure this discussion as follows. First, the interaction between aSection 5 declaration and enforcement proceedings will be considered. Secondly, theDeveloper’s argument that the Section 5 reference procedure does not properly apply tothe interpretation of a planning permission will then be addressed.(1). Section 5 declaration and enforcement proceedings64. The planning legislation has, from the very outset, put in place a procedure whereby thequestion of whether a particular act constituted “development” or “exempteddevelopment” could be determined. This initially took the form of a reference to An BordPleanála, with an appeal thereafter to the High Court. This was provided for underSection 5 of the Local Government (Planning & Development) Act 1963.65. Since the enactment of the PDA 2000, the reference is now normally made in the firstinstance to the local planning authority, with a right of review thereafter to An BordPleanála, and a right of judicial review to the High Court. The planning authority canitself make a reference directly to An Bord Pleanála, and this is what occurred on the factsof the present case.66. The Section 5 procedure is unusual in that it confers a jurisdiction upon a public authorityto determine issues which, in many instances, will necessitate an adjudication onquestions of law. The constitutional validity of conferring such a jurisdiction upon An BordPleanála under the Local Government (Planning & Development) Act 1963 had beenupheld by the High Court (Kenny J.) in Central Dublin Development Association v.Attorney General (1969) 109 I.L.T.R. 69.67. The more modern case law is characterised by an enthusiasm for the revised form ofprocedure now provided for under Section 5 of the PDA 2000. As elaborated upon below,the case law over the last fifteen years or so has confirmed (i) that Section 5 of the PDA2000 has largely ousted the High Court’s jurisdiction to grant declaratory relief in respectof planning matters; (ii) that an unchallenged declaration may be relied upon inenforcement proceedings; and (iii) that An Bord Pleanála is an expert decision-maker,whose decisions attract curial deference.68. This modern case law commences with the judgment of the Supreme Court in Grianán anAileach Interpretative Centre Ltd. v Donegal County Council [2004] IESC 41; [2004] 2I.R. 625 (“Grianán an Aileach”). The judgment addresses the question of whether thecourt’s inherent jurisdiction to grant declarations as to the planning status of lands isconsistent with the Section 5 procedure. The Supreme Court considered that thecontinued existence on the part of the High Court of a general jurisdiction to adjudicateupon the proper construction of a planning permission would create a danger ofPage 14 ⇓“overlapping and unworkable jurisdictions”. The making of a declaration by the HighCourt might have the result that neither An Bord Pleanála nor the local planning authoritywould thereafter be in a position whereby it could exercise its statutory jurisdiction underSection 5 without finding itself in conflict with the earlier determination by the High Court.69. The solution adopted by the Supreme Court to this conundrum was, in effect, to find thatthe existence of the Section 5 reference procedure ousted the High Court’s jurisdiction togrant (freestanding) declarations in respect of planning matters.70. The judgment recognises, of course, that the High Court continues to have originaljurisdiction to determine planning issues when adjudicating upon enforcementproceedings under Section 160 of the PDA 2000. The Supreme Court held that ifenforcement proceedings are brought in the High Court, then that court may“undoubtedly find itself having to determine whether there has been a material change ofuse or whether a development is sanctioned by an existing planning permission”.71. At a later point in the judgment, Keane C.J. stated as follows at paragraph [36].“Some responsibility may be attributed to the defendant for the difficulties thathave arisen in determining to what uses the premises may be put without a furtherplanning permission: they might well have been avoided by the use of more preciselanguage when the permission was being granted. I am satisfied, however, thatthe High Court cannot resolve these difficulties by acting, in effect, as a form ofplanning tribunal. As I have already indicated, if enforcement proceedings werebrought in the High Court, that court might find itself having to determine whetherparticular operations constituted a ‘development’ which required permission and thesame issue could arise in other circumstances, e.g., where a commercial orconveyancing document containing a particular term dealing with compliance withplanning requirements was the subject of litigation. But in every such case,however it came before the court, the court would resolve the issue by determiningwhether or not there had been or would be a development within the meaning ofthe planning code. The only circumstance in which the court could find itselfmaking a declaration of the kind ultimately granted in this case would be where ithad been drawn into a role analogous to that of a planning authority granting apermission. That is difficult to reconcile with the law as stated thus by Finlay C.J. inO’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 […]”.72. This aspect of the judgment is entirely consistent with the approach adopted in CorkCorporation v. O’Connell [1982] I.L.R.M. 505. There, the Supreme Court held that theexistence of a pending reference under the precursor of what is now Section 5 of the PDA2000, i.e. Section 5 of the Local Government (Planning & Development) Act 1963, did notoust the High Court’s jurisdiction to entertain enforcement proceedings.73. The judgment in Grianán an Aileach left open the separate question as to what shouldhappen where An Bord Pleanála had already issued a Section 5 declaration in advance ofthe hearing of enforcement proceedings. This question has since been addressed in aPage 15 ⇓series of High Court judgments. There is now a consistent line of case law which indicatesthat a Section 5 declaration, which has not been challenged in judicial reviewproceedings, is binding and conclusive in enforcement proceedings involving the sameparties as to the reference. In particular, a declaration to the effect that an act is“development” or is “exempted development” cannot normally be revisited in subsequentenforcement proceedings between the same parties or their privies. See Wicklow CountyCouncil v. O’Reilly [2015] IEHC 667 (waste recovery business not exempteddevelopment); and McCoy v. Shillelagh Quarries Ltd [2015] IEHC 838 (quarrying activityhad intensified to such an extent as to amount to a material change of use).74. There is an exception to this approach where it would be unfair to treat a party as boundby a Section 5 declaration. In Wicklow County Council v. Fortune (No. 3) [2013] IEHC 397,the High Court (Hogan J.) declined to treat a respondent to enforcement proceedingsas bound by a Section 5 reference which had been made without a proper statement ofreasons. The High Court held that it would be “quite unfair” to shut out a respondentfrom arguing that a structure was “exempted development” on the basis of a Section 5declaration which, on its face, plainly failed to meet the requirements of administrativefairness specified in Mallak v. Minister for Justice and Equality [2012] IESC 59; [2012] 3I.R. 297, notwithstanding that the determination had never been challenged at therelevant time by way of judicial review.75. The correctness of this line of case law has since been upheld by the Court of Appeal inKillross Properties Ltd. v. Electricity Supply Board [2016] IECA 207; [2016] 1 I.R. 541,(“Killross Properties”). On the facts, An Bord Pleanála had issued a series of Section 5declarations to the effect that works, consisting of the erection of a temporary electricitytransmission line by a statutory undertaker, were “exempted development”. KillrossProperties Ltd., who had made the Section 5 references, had sought to challenge An BordPleanála’s declarations in judicial review proceedings, but those proceedings weredismissed by the High Court (Hedigan J.) in August 2014 . Notwithstanding thisprocedural history, Killross Properties Ltd. then pursued an application under Section 160of the PDA 2000.76. The Court of Appeal, per Hogan J., held that the High Court was not entitled to “gobehind” the Section 5 declarations.“[…] the High Court cannot go behind an otherwise valid s. 5 determination to theeffect that the development in question represent exempted development in thecourse of a s.160 application. The effect of such a determination is that planningpermission is not required, so that by definition the development cannot beunauthorised. It follows that the High Court cannot grant the relief claimed in thes. 160 proceedings.77. The rationale for this approach is explained as follows, at paragraphs [29] to [31] of theCourt of Appeal’s judgment.Page 16 ⇓“First, it can be said that as the planning authorities (or, An Bord Pleanála, as thecase may be) determined that the works in question represent exempteddevelopment, it necessarily follows that no planning permission is required. Thelogical corollary of this conclusion is that the development in question cannot bydefinition be “unauthorised” within the meaning of s. 160 if no planning permissionis required so that consequently any such s. 160 application is bound to fail.Second, it could equally be said that the s. 160 application represents a collateralattack on the decision of the planning authority, since it effectively invites the courtto revisit the merits of the issue which had already been determined in the courseof the s. 5 determination. This is further reinforced so far as the presentproceedings are concerned, since Killross elected to challenge the validity of threeof the s. 5 determinations in judicial review proceedings and failed in thatendeavour.Third (and related to it the second argument), it could be said that the s. 160proceedings represent an attempt indirectly to challenge the validity of the s. 5determinations otherwise than by means of the judicial review requirementspecified by s. 50 of the 2000 Act.”78. The practical effect of these various judgments is that the existence of an (unchallenged)Section 5 declaration gives rise to a form of issue estoppel whereby the parties are boundby the declaration. In circumstances where the Section 5 declaration is to the effect thata particular act constitutes “development”, then the moving party in an application forinjunctive relief under Section 160 of the PDA 2000 can rely upon that declaration insupport of their application. This is subject to an exception where it would be unfair.(Wicklow County Council v. Fortune (No. 3) [2013] IEHC 397).79. The current legal position is, therefore, that enormous significance now attaches to aSection 5 declaration. The existence of an (unchallenged) declaration will, in certaincircumstances, be dispositive of many of the issues which arise in enforcementproceedings. The precise implications of all of this have not yet been fully teased out. Inparticular, questions remain as to whether, for example, An Bord Pleanála would beprecluded from entertaining a reference by virtue of the existence of an earlier un-appealed declaration made by a local planning authority pursuant to a separate reference.Questions also remain as to whether a Section 5 declaration constitutes a “developmentconsent” for the purpose of the EIA Directive.80. The Developer in the present case seeks to argue that a distinction should be drawnbetween (i) a finding that a particular act is “development” or “exempted development”,and (ii) a finding that it is “unauthorised development”. It is contended that An BordPleanála does not have jurisdiction to make a finding of the latter type. Much reliance isplaced in this regard on the following passage from the judgment of the High Court(Finlay Geoghegan J.) in Roadstone Provinces Ltd. v. An Bord Pleanála [2008] IEHC 210(“Roadstone Provinces”).Page 17 ⇓“[An Bord Pleanála] has no jurisdiction on a reference under s.5 (4) of the Act todetermine what is or is not ‘unauthorised development’. It may only determinewhat is or is not ‘development’. Hence, a planning authority, such as the noticeparty, cannot refer a question under s.5 (4) as to whether the works or proposedworks or use constitutes unauthorised works or use and hence unauthoriseddevelopment. Determination of what is or is not ‘unauthorised development’ willmost likely be determined by the courts where a dispute arises on an applicationunder s. 160 of the Act.”81. It should be noted, however, that this statement was made in the context of a pre-1964quarry, and appears to have been informed, in part at least, by the highly technicaldefinition of “unauthorised development”. To elaborate: the planning legislation does notapply retrospectively to “development” which had commenced prior to the coming intoforce and effect of the Local Government (Planning & Development) Act 1963 on 1October 1964. Such pre-1964 development is not, however, treated as “exempteddevelopment”, but rather enjoys a sui generis status. This is achieved by confining thedefinitions of “unauthorised works” and “unauthorised use” to development whichcommenced on or after 1 October 1964. The Supreme Court in Waterford County Councilv. John A. Wood Ltd. [1999] 1 IR 556 has since formulated a test which defines theextent of quarrying activity which can be carried out and completed in reliance on thecommencement of works prior to 1 October 1964.82. Returning to the facts of Roadstone Provinces, it appears that the point being made in thepassage cited above is that An Bord Pleanála does not have jurisdiction to determinewhether a particular development constitutes the lawful continuation of pre-1964development. Put shortly, An Bord Pleanála does not have jurisdiction to apply the legaltest in John A. Wood Ltd. This is apparent from the very next passage of the judgment inRoadstone Provinces, at paragraph [22].“The reason for which I have drawn attention to the fact that the respondent wasconsidering whether or not there was or is a development by reason of a materialchange in the use of the applicant’s lands, as distinct from the carrying out of anyworks, is because of the reliance placed by both parties, for different purposes, onthe decision of the Supreme Court in Waterford County Council v. John A. WoodLtd. [1999] 1 IR 556. That is a decision on a case stated from the High Court(determining an appeal from the Circuit Court) on proceedings under s. 27 of theLocal Government (Planning and Development) Act, seeking an order restrainingthe respondent therein from carrying on quarrying operations on certain lands.Section 27 of the Act of 1976 is similar to s. 160 of the Act of 2000. The questionput by the High Court to the Supreme Court in the case stated was whether thequarrying operations being carried out by the respondent ‘is development requiringplanning permission?’. The resolution of that question depended upon whether ornot the quarrying operations then carried on were or were not ‘developmentcommenced before the appointed day’ and therefore were or were not excludedfrom a requirement to apply for planning permission under s. 24 (1) of the Act ofPage 18 ⇓1963. That issue was resolved by the Supreme Court by considering whether ornot the works then being carried out by the respondent at its quarrying operationswere works which commenced prior to the appointed day. The Supreme Court didthis by considering what might have been reasonably contemplated or anticipatedas the continuation of works commenced before the appointed day. In the contextof the definitions in the Act of 2000, it was a determination as to whether the workswere or were not ‘unauthorised works’. That is not a question which therespondent has jurisdiction to determination on the instant reference under s.5 (4)of the Act of 2000.* The Supreme Court, in Waterford County Council v. John A.Wood Ltd., was not considering whether or not there had been a material change inuse of the lands. On the facts, the only objection appears to have been based uponthe carrying out of works without planning permission.”*Emphasis (italics) added.83. It would appear, therefore, that the judgment in Roadstone Provinces, strictly speaking,had been concerned with the narrow question of pre-1964 user, and does not necessarilyarticulate a more general proposition as to the limitations of the Section 5 jurisdiction.Certainly, this seems to have been the interpretation of the judgment taken by the HighCourt (Baker J.) in Cleary Compost and Shredding Ltd v. An Bord Pleanála (No. 1[2017] IEHC 458. Having cited the passage from Roadstone Provinces set out at paragraph 80above, Baker J. stated as follows.“This dicta of Finlay Geoghegan J. is regularly quoted as authority for theproposition that the jurisdiction under s. 5(4) of the Act is one which is confined todetermining whether works or use is development.Finlay Geoghegan J. was considering the import of a s. 5 declaration where whatwas challenged was the decision of the respondent that the expansion southward ofa quarry was development and not exempted development. The decision wasquashed by certiorari as there was pre-1964 use and no determination had beenmade whether there was an identified factual difference between that use andcurrent use. The judgment does not go so far as to say that the consequence of as. 5 declaration can never be understood to mean that a development is not oneauthorised by planning permission. The judgment of Finlay Geoghegan J. isauthority for the proposition that development which does not have the benefit of aplanning permission is not always in legal terms a development which is‘unauthorised’, and the jurisdictional limit of s. 5 is to determine whether there isdevelopment, after which there arises the second question whether permission isrequired or exists.[…]A development is not unauthorised merely on account of the fact that an activity orworks are found to be development. The development may, as in the case of aquarry, the context in which Roadstone Provinces Limited v. An Bord Pleanála wasPage 19 ⇓decided, be exempt from the requirement to obtain planning permission if it is acontinuation of pre-1964 user. In such cases the development is not unauthorisedalthough it is development. A development may also be found to have occurred butto be exempt.However, it must be the case that, absent an argument that there is relevant pre-1964 use, if works or activity are declared in the s. 5 process to amount todevelopment and if a determination is made that it is not exempt, then theinevitable conclusion is that the development does not have the benefit of planningpermission, is not authorised in planning terms, and is ‘unauthorised’.”84. The judgment in Cleary Compost goes on to make the separate point at paragraph [90]that an earlier Section 5 declaration will not preclude a subsequent declaration to differenteffect being made if there has been a change in circumstances between the dates of thetwo declarations.85. The nature of the Section 5 jurisdiction has also been considered by the Court of Appealin Killross Properties. The Court of Appeal put the matter as follows (in a passagesubsequently cited with approval in Cleary Compost).“Yet if An Bord Pleanála (or, as the case may be, a planning authority) rules that aparticular development is not exempted development, the logical corollary of thatdecision is that planning permission is required. In practice, there is often only avery slender line between ruling that a development is not exempted developmentsince this will generally – perhaps, even, invariably – imply that the development isunauthorised on the one hand and a finding that a particular development isunauthorised on the other. Conversely, where (as here) An Bord Pleanála (or theplanning authority) rules that the development is exempt, this necessarily impliesthat the development is lawful from a planning perspective since, by definition, ithas been determined that no planning permission is required.”86. In two recent judgments, the Supreme Court has expressed some caution as to thereliance on Section 5 declarations in criminal proceedings and enforcement proceedings,respectively. Both judgments were delivered in May 2017. The first in time is thejudgment in Cronin (Readymix Ltd.) v. An Bord Pleanála [2017] IESC 36; [2017] 2 I.R.658. In addressing the question of whether the planning legislation falls to be interpretedas penal legislation, the Supreme Court, per O’Malley J., stated as follows at paragraph[43] of the judgment.“It follows that the primary role in determining whether a development is exemptedor not is given to (depending on the circumstances) either the planning authority orthe Board. A decision by one of those bodies is an authoritative ruling on the issue,subject to the potential for judicial review. However, it plainly does not, and couldnot, result in a determination of guilt or innocence of a criminal offence. There wasno suggestion to the contrary at any stage of these proceedings. In my view,therefore, it is entirely inappropriate to read the provisions of s.4 as if they relatedPage 20 ⇓to ‘the imposition of a penal or other sanction’. What they are concerned with is theexemption of categories of development from the general requirement to obtainpermission.”87. The second judgment is that in Meath County Council v. Murray [2017] IESC 25; [2018] 1I.R. 189; [2017] 2 I.L.R.M. 297. McKechnie J., delivering the judgment of the court,reserved his position in relation to the status of a Section 5 declaration in the context ofenforcement proceedings. See paragraphs [55] and [56] of the reported judgment asfollows.“By engaging the enforcement mechanism of, say, s. 160, there is no question ofthe Council making any planning determination that the structure is unauthorised:even that power is not conferred on either a planning authority or An Bord Pleanálaby s. 5 of the 2000 Act (Roadstone Provinces Limited v. An Bord Pleanála[2008] IEHC 210, (Unreported, High Court, Finlay Geoghegan J., 4 July 2008)), nor is thesituation in any way analogous to that arising in Grianán an Aileach Centre v.Donegal County Council (No. 2) [2004] IESC 43, [2004] 2 IR 625. Likewise, itseems to bear no real relationship to the other cases quoted, including HeatonsLimited v. Offaly County Council [2013] IEHC 261, (Unreported, High Court, HoganJ., 4 June 2013) and State (Fitzgerald) v. An Bord Pleanála [1985] I.L.R.M. 117.A further word about s. 5 of the 2000 Act: the power given to both planning bodiesunder that section relates to what is a ‘development’ or what is an ‘exempteddevelopment’. Even though a decision on either issue may have significantconsequential effect, it is not an end in itself. Without more, and simply on thatbasis, a s. 160 order could not be made: one must go further and establish the“unauthorised” nature of the underlying development. Thankfully, the difficultquestion of the courts’ review power where a declaration one way or the other hasbeen made on a s. 5 reference does not arise on this appeal (see the judgment ofthe Court of Appeal (per Hogan J.) in Bailey v. Kilvinane Wind Farm Ltd.[2016] IECA 92, (Unreported, Court of Appeal, 16 March 2016), which judgment is underappeal to this court).”88. It should be noted that the appeal in Bailey v. Kilvinane Wind Farm Ltd. (referenced in theabove passage from Meath County Council v. Murray) subsequently became moot incircumstances where the developer in that case obtained a grant of substitute consent.The Supreme Court did not, therefore, have to rule on this issue in the context of thatappeal.(2). Section 5 jurisdiction to interpret planning permission89. The case law confirms that An Bord Pleanála does have jurisdiction to interpret a planningpermission in the context of a Section 5 reference. The question first arose forconsideration in Palmerlane Ltd. v. An Bord Pleanála [1999] 2 ILRM 514. This was acase decided under the previous version of the planning legislation. The equivalentPage 21 ⇓provision to what is now Section 5 of the PDA 2000 was to be found in the coincidentallynumbered Section 5 of the Local Government (Planning & Development) Act 1963.90. The judgment in Palmerlane Ltd. arose out of a dispute as to whether the use of aconvenience store for the sale of hot food for consumption off the premises represented“development”. The operator of the convenience store had sought to refer the matter toAn Bord Pleanála. An Bord Pleanála had refused to entertain the reference, stating that itdid not have power to decide whether or not a particular development had been carriedout in accordance with a particular permission. An Bord Pleanála considered that as thesale of hot food had been part of the user of the premises from the outset, there simplywas no change in use, the materiality of which it could assess. The board’s decision todecline jurisdiction was then challenged in judicial review proceedings. Having noted thatAn Bord Pleanála would have been prepared to entertain the reference had the use for thesale of hot food been introduced subsequent to the opening of the store, the High Court(McGuinness J.) took the pragmatic view that the board’s jurisdiction should not turn onsuch nice distinctions.“The decision of An Bord Pleanála in the instant case also, in my view, creates thesomewhat anomalous and unreasonable situation that if the Applicant were toselect another of its ‘Spar’ shops, where the position was that the premises hadbeen in use as a retail shop under an earlier planning permission and the companyhad subsequently embarked on the limited sale of hot food for consumption off thepremises, the Applicant could presumably successfully have sought a determinationof a reference pursuant to Section 5 of the 1963 Act. I appreciate that eachdetermination under Section 5 deals only with the particular case on its own facts.However, in a situation where a very large number of convenience stores operate inthe same way as the shop in question in the instant case, it seems to me to be inaccordance with reason and common sense that questions such as this should bedetermined on a consistent basis by those with expertise in the planning area,namely An Bord Pleanála.”91. This pragmatic approach on the part of the High Court was elevated to a more generalstatement of principle by the judgment of the Supreme Court in Grianán an Aileach. Asdiscussed under the previous heading above, the central issue in the appeal had beenwhether the High Court continued to enjoy a parallel jurisdiction to grant declarations asto the interpretation of planning permissions notwithstanding the existence of Section 5 ofthe PDA 2000. In the course of its adjudication on the central issue, the Supreme Courthad cause to consider the nature and extent of the Section 5 jurisdiction. The SupremeCourt, per Keane C.J., concluded that a question as to whether proposed uses constitute“development” which is not authorised by planning permission is one which may bedetermined under Section 5 of the PDA 2000.“In the present case, the issue that has arisen between the plaintiff and thedefendant is as to whether the proposed uses are authorised by the planningpermission. I am satisfied, however, that, although the issue has arisen in thatPage 22 ⇓particular form, it necessarily requires the tribunal which determines it to come to aconclusion as to whether what is being proposed would constitute a materialchange in the use of the premises. If it would not, then the question as to whetherthe particular uses were authorised by the permission simply would not arise. Inthe present case, the defendant at all times has been contending, in effect, that theproposed uses would constitute a material change in use which is not authorised bythe present planning permission. Equally, for its part, the plaintiff has beencontending that the uses are authorised by the existing planning permission but hasnot contended that, if that were not the case, it would in any event be entitled tocarry them out as not constituting a material change of use. It would seem tofollow that the question as to whether planning permission is required in this casenecessarily involves the determination of the question as to whether the proposeduses would constitute a ‘development’, i.e. a question which the planning authorityand An Bord Pleanála are empowered to determine under s. 5 of the Act of 2000.”92. Keane C.J. at a later point in his judgment stated as follows (at pages 636/37 of thereported judgment).“The reasoning adopted in both McMahon v. Dublin Corporation and Palmerlane v.An Bord Pleanála which, I am satisfied, is correct in law would indicate that, in suchcircumstances, a question as to whether the proposed uses constitute a‘development’ which is not authorised by the planning permission is one which maybe determined under the Act of 2000 either by the planning authority or An BordPleanála. In the present case the question is as to whether the various proposeduses, which the defendant contends, would involve the regular use of the premisesfor events associated with a concert/entertainment venue rather than a visitors’centre, are in a planning context materially different uses from use as a visitors’centre and the uses indicated on the lodged plan, in which case they would not beauthorised by the planning permission.”93. There is no principled distinction between (i) a finding that a particular act ofdevelopment is or is not “exempted development”, and (ii) a finding that a particular actof development does not come within the scope of a planning permission. In eachinstance, An Bord Pleanála is required to assess the difference between two forms of“development”, and to reach a determination as to whether the difference between thetwo is material or immaterial. In the case of the user of lands, the exercise is todetermine whether there has been a material change of use. In the case of permittedworks under a planning permission, the exercise is to determine whether the difference isan immaterial deviation.94. An Bord Pleanála is the expert body entrusted under the planning legislation with thistask. For the court to carry out the same exercise subsequently gives rise to the verymischief which the judgment in Grianán an Aileach is intended to avoid.SUMMARY OF LEGAL PRINCIPLES RE: SECTION 595. The current state of the case law can be summarised as follows.Page 23 ⇓(i). The fact that both the High Court and An Bord Pleanála have jurisdiction, in certaincircumstances, to determine whether a particular act is “development” or“exempted development” presents a potential risk of overlapping and unworkablejurisdictions.(ii). In order to reduce this risk, the Supreme Court has held that the High Court’sinherent jurisdiction to make declarations as to the planning status of lands isousted. More specifically, the High Court’s jurisdiction to adjudicate upon theproper construction of a planning permission is largely confined to enforcementproceedings. (It might also arise in the context of contractual or conveyancingdisputes). The Supreme Court has not yet had to address the specific question ofwhether the High Court, in hearing enforcement proceedings, is bound by an earlier(unchallenged) Section 5 declaration.(iii). The Court of Appeal has held that an (unchallenged) Section 5 declaration to theeffect that certain works are “exempted development” is binding on the parties insubsequent enforcement proceedings. The Court of Appeal has not yet had toaddress the question of the legal status of a Section 5 declaration to the effect thatcertain works are not “exempted development” or to the effect that certain worksdo not come within the scope of an existing planning permission. Put otherwise,the Court of Appeal has not yet ruled on whether a declaration which is adverse toa respondent is binding.(iv). The High Court, in at least three judgments, has held that Section 5 declarations tothe effect that planning permission is required for certain acts are, in principle,binding on the parties in enforcement proceedings.(v). Certain judgments have expressed reservations as to the jurisdiction of An BordPleanála to make declarations to the effect that a particular act is “unauthoriseddevelopment”.(vi). The principal ground for finding that a Section 5 declaration is binding is in order toreduce the risk of overlapping and unworkable jurisdictions. This would appear toinvolve a form of issue estoppel. A secondary ground for the finding is that it mightoffend against Section 50 of the PDA 2000 to allow a party to make a collateralchallenge to a Section 5 declaration in the context of subsequent enforcementproceedings.(vii). The Section 5 jurisdiction extends to questions of interpretation of planningpermission.(viii). Whereas a Section 5 declaration may be dispositive of many of the issues inenforcement proceedings, there remain a number of matters which fall outwith theSection 5 jurisdiction. In particular, An Bord Pleanála has no function indetermining whether the development being enforced against has the benefit of the“seven-year rule”, i.e. whether the proceedings are statute barred by reference toPage 24 ⇓the seven-year limitation period provided for under Part VIII of the PDA 2000. Italso follows by analogy with the judgment in Cleary Compost that an earlier Section5 declaration will not be binding if there has been a change in circumstances in theinterim.FINDINGS OF THE COURT ON SECTION 5 REFERENCE96. The current state of the authorities, therefore, appears to be that, at the very least, aSection 5 declaration must be given significant weight in subsequent enforcementproceedings. The principal rationale underlying this case law is the desirability of avoidingoverlapping and inconsistent decision-making.97. Applying these principles to the facts of the present case, I have concluded that theSection 5 declaration precludes the Developer from reagitating the argument that the “asbuilt” wind turbines are authorised by the 2011 planning permission. The Developer hada full opportunity of making its case in this regard to An Bord Pleanála. In particular, theDeveloper had made submissions before the Board to the effect, first, that the decision-letter of 13 December 2013 authorised the change in scale and dimensions; and,secondly, that the circumstances were distinguishable from those of the Kilvinane WindFarm. Those submissions were, ultimately, rejected by An Bord Pleanála.98. To allow the Developer to rerun the same arguments before this court would give rise toprecisely the type of overlapping and unworkable jurisdictions which the judgmentsdiscussed above are intended to avoid. Were this court to embark upon a de novoconsideration of these matters, and to come to a contrary conclusion to that of An BordPleanála, this would bring about the very mischief which the case law is intended toavoid.99. Of course, different considerations would apply where a party had not been afforded fairprocedures before An Bord Pleanála or where the declaration is bad on its face, e.g. thedecision is not fully reasoned. See, for example, Wicklow County Council v. Fortune (No.3) [2013] IEHC 397 (discussed at paragraph 74 above). A Section 5 declaration wouldnot be binding in such circumstances. No such contingencies arise, however, on the factsof the present case.100. In reaching this conclusion as to the status of the Section 5 declaration, I have givencareful consideration to the legal submissions—both written and oral—advanced on behalfof the Developer. It will be recalled that one of the arguments advanced is to the effectthat the court should apply a “double construction” rule to the Section 5 declaration, i.e. ifthe declaration is open to two constructions, then it should be interpreted in the mannerwhich holds it intra vires. More specifically, it had been argued that the declarationshould be interpreted as confined to a finding that the erection of the wind turbines is“development” and not “exempted development”. (See paragraph 62 above).101. With respect, the narrow interpretation which the court is invited to give to the Section 5declaration is entirely artificial. It would require the court to disregard large portions ofthe text of the declaration, and also to disregard the underlying inspector’s report. SuchPage 25 ⇓an artificial approach would be contrary to the well-established principles governing theinterpretation of planning decisions. (See In re XJS Investments Ltd. [1986] IR 750).The rationale for a decision of An Bord Pleanála is to be found by reading the Board’sdecision in conjunction with the underlying inspector’s report (save in cases where theBoard had disagreed with the inspector’s recommendation). See Connelly v. An BordPleanála [2018] IESC 31; [2018] 2 I.L.R.M. 453.102. On the facts of the present case, it is obvious the Board followed its inspector’srecommendation, and had adopted the same approach as it had in respect of theKilvinane Wind Farm. This entailed making an express finding, at sub-paragraph (b) ofthe Section 5 declaration, to the effect that the alterations to the turbines, including thelength of the rotor arms/blades, do not come within the scope of the planning permissiongranted. Put otherwise, An Bord Pleanála expressly addressed the interpretation of theplanning permission and resolved this issue against the Developer.103. Notwithstanding the fact that the Developer did not seek to challenge An Bord Pleanála’sdeclaration at the time, the Developer now maintains the position in these enforcementproceedings that the Section 5 jurisdiction does not allow An Bord Pleanála (i) todetermine whether particular works come within the scope of a planning permission, nor(ii) to make a finding of “unauthorised development”. This position is untenable. Asdiscussed in detail under the previous headings, the case law establishes that the Section5 jurisdiction is not as narrow as the Developer contends.104. Similarly, the attempt on the part of the Developer to distinguish the facts of the presentcase from those of Killross Properties is not well-founded. Whereas it is correct to saythat Killross Properties was concerned with a declaration to the effect that certain workswere “exempted development”, and that this declaration was, therefore, adverse to thecase which the applicant, as opposed to the respondent, was making in thoseproceedings, these points of distinction do not affect the underlying rationale. Theunderlying rationale of the judgment is to avoid unworkable and overlapping jurisdictions.This mischief arises equally in the case of a Section 5 declaration which is adverse to arespondent as in the case of a declaration which is adverse to the applicant. In eachinstance, An Bord Pleanála will have made findings on issues which are relevant to thesubsequent enforcement proceedings. For the court hearing the enforcement proceedingsto embark on a de novo consideration of these issues would involve the court re-openingthe very issues which had been determined by An Bord Pleanála. This would be contraryto the general principle stated in Grianán an Aileach to the effect that the Oireachtas mayconfer on statutory bodies, expressly or by implication, an exclusive jurisdiction todetermine specific issues. Section 5 of the PDA 2000 has conferred just such ajurisdiction on An Bord Pleanála.105. It might, perhaps, be said that the legal status now attaching to a Section 5 declaration ismore significant than a literal interpretation of the section might at first suggest. Thecase law from the last fifteen years is, however, clear. Section 5 has been given apurposive interpretation, which is intended to reflect the fact that An Bord Pleanála hasPage 26 ⇓been entrusted with specific competences under the PDA 2000. More generally, thisinterpretation is also consistent with the principle of finality in litigation and that partiesare estopped from re-agitating issues which have been decided against them. This issubject to the exceptions discussed under the next paragraph.106. The High Court will retain original jurisdiction to determine planning issues in enforcementproceedings where there is no Section 5 determination in existence. It will also havejurisdiction where, as in Wicklow County Council v. Fortune (No. 3), the Section 5declaration is bad on its face or had been reached in breach of fair procedures. The HighCourt will also retain original jurisdiction where an issue arising in enforcementproceedings has not been specifically addressed by An Bord Pleanála or where there hasbeen a change in circumstances in the interim. None of these contingencies arise on thefacts of the present case. The precise same issues which the Developer seeks to agitatein this court had been raised before An Bord Pleanála and were determined against theDeveloper. If the Developer had wished to challenge that determination, then the remedywas to make an application for judicial review. The Developer did not do so.107. Accordingly, I am satisfied that the Section 5 declaration made by An Bord Pleanála inthis case should be treated as binding on the Developer, and as conclusive of the questionof whether or not the “as built” wind turbines come within the scope of the 2011 planningpermission. The declaration is not, of course, determinative of the outcome of theenforcement proceedings. The Applicants would still have to prove to the satisfaction ofthe court that works had been carried out by the Developer, and that proceedings wereinstituted within the relevant seven-year limitation period. It remains open to theDeveloper to resist the proceedings on the basis of the court’s discretion.DE NOVO ASSESSMENT108. For the reasons set out under the previous heading, I have found that the Section 5declaration is binding on the Developer. The Developer cannot, therefore, seek to defendthe enforcement proceedings before this court on the basis of an argument that the “asbuilt” turbines come within the scope of the planning permission.109. Lest I be incorrect in this finding, however, I propose to address the question ofcompliance with the planning permission de novo. Put otherwise, I propose to embarkupon my own assessment of whether the “as built” turbines come within the scope of theplanning permission. This exercise is being carried out de bene esse, and withoutprejudice to my finding as to the binding effect of the Section 5 declaration. The exerciseis only being undertaken on account of the urgency of the proceedings. There is a riskthat if this judgment were to be decided on the narrow basis that the Section 5determination is binding, then this might result in unnecessary delay in the event of anappeal. More specifically, if the finding on the narrow issue were to be overturned onappeal, and this court had not addressed separately the question of compliance with theplanning permission, then it would become necessary to remit the matter to the HighCourt for rehearing (with all the attendant delay and cost). It seems preferable that thisjudgment should, insofar as reasonably practicable, address all issues and contingencies.Page 27 ⇓110. The Developer’s argument can be summarised as follows. A planning permission providesfor some flexibility, and “immaterial deviations” from the permitted development areimplicitly authorised by the permission. The court should, therefore, engage in theprocess of examining whether the environmental impact of the deviations between the“as permitted” and “as built” wind turbines are material. The Developer has filed detailedaffidavit evidence which, it is said, indicates that there is no material difference betweenthe two.111. The court is, in effect, being invited to engage in a form of screening exercise analogousto that required under the EIA Directive. With respect, this is not what the planninglegislation requires. The term “works” is broadly defined under the PDA 2000, and, incontrast to the term “use”, is not subject to a “materiality” test.“‘works” includes any act or operation of construction, excavation, demolition,extension, alteration, repair or renewal and, in relation to a protected structure orproposed protected structure, includes any act or operation involving theapplication or removal of plaster, paint, wallpaper, tiles or other material to or fromthe surfaces of the interior or exterior of a structure.”112. The legal consequence of this is that even very minor “works” are, in principle, subject toa requirement to obtain planning permission. The broad definition of development“works” is counterbalanced by the putting in place of legislative measures which exemptprescribed classes of development from the requirement to obtain planning permission.Some of these exemptions are provided for under Section 4(1) of the PDA 2000, but mostare to be found in Regulations made by the Minister for Housing, Planning and LocalGovernment (“the Minister”) pursuant to Section 4(2) of the PDA 2000. This sectionreads as follows.“(2)(a) The Minister may by regulations provide for any class of development to beexempted development for the purposes of this Act where he or she is of theopinion that—(i) by reason of the size, nature or limited effect on its surroundings, ofdevelopment belonging to that class, the carrying out of such developmentwould not offend against principles of proper planning and sustainabledevelopment, or(ii) the development is authorised, or is required to be authorised, by or underany enactment (whether the authorisation takes the form of the grant of alicence, consent, approval or any other type of authorisation) where theenactment concerned requires there to be consultation (howsoeverdescribed) with members of the public in relation to the proposeddevelopment prior to the granting of the authorisation (howsoeverdescribed).”Page 28 ⇓113. The position under the planning legislation is, therefore, that planning permission isrequired for even minor development “works”, the definition of which includes relevantlyan “extension”, unless the works fall within a class of “exempted development”.114. The decision as to whether to exempt particular classes of development “works” from therequirement to obtain planning permission resides principally with the Minister. Asappears from Section 4(2), the Minister is required to consider whether or not thecarrying out of such development would “offend against principles of proper planning andsustainable development”.115. The courts do not have an equivalent jurisdiction to waive the requirement to obtainplanning permission for minor development “works”. The only role which a court has inassessing the materiality of development “works” is where a developer seeks to arguethat a departure from the terms of a planning permission represents an “immaterialdeviation”. The principles governing this assessment have been set out, withcharacteristic clarity, by Fennelly J. in Kenny v. Provost, Fellows & Scholars of theUniversity of Dublin, Trinity College [2009] IESC 19 (“Kenny”) at paragraphs [18] to [20]of the judgment as follows.“There will inevitably be small departures from some or even many of the plans anddrawings in every development. There can be discrepancies between and withinplans, drawings, specifications and measurements; there can be ambiguities andgaps. It seems improbable that any development is ever carried into effect in exactand literal compliance with the terms of the plans and drawings lodged. If thereare material departures from the terms of a permission, there are enforcementprocedures.However, planning laws are not intended to make life impossible for developers, forthose executing works such as architects, engineers or contractors or for theplanning authorities in supervising them. Nor are they there to encourage fine-tooth combing or nit-picking scrutiny of the works. I will mention later one or twoexamples of this type of exercise in the present case. The exchange of affidavitsamounts to some 300 pages.While the planning authority or An Bórd Pleanála on appeal grants the permission,it is a common feature of permissions, especially for large developments, thatadditional detail is necessary in order to carry the development into effect and suchdetail, often in the form of further plans, drawings, specifications or otherexplanations, will require approval by the planning authority prior tocommencement of the development. There is an obvious practical necessity for aprocedure whereby matters of detail can be agreed between the planning authorityand the developer. This ensures supervision but allows a degree of flexibility withinthe scope of the permitted development.”116. The planning permission in Kenny had included a number of conditions, of the typeflagged in the last paragraph above, i.e. conditions which left over points of detail to bePage 29 ⇓agreed between the developer and the planning authority. The planning authority hadrelied on the conditions to authorise certain departures from the strict terms of theplanning permission. As discussed under the next heading below, the Developer in thepresent case seeks to rely on the existence of such a condition in the 2011 planningpermission as authorising the increase in rotor diameter.117. Staying for the moment with immaterial deviations, the case law indicates that theflexibility allowed under a planning permission is very limited. Thus, for example, theHigh Court in Cork County Council v. Cliftonhall Ltd. [2001] IEHC 85 held, with somereluctance, that an exceedance of the ridge height of one block of apartments of between0.5 metres and 1.3 metres was immaterial in the context of an overall residentialdevelopment of six blocks. The court calculated that the deviation between the “aspermitted” and “as built” height was in the order of some 7 per cent.118. In O’Connell v. Dungarvan Energy Ltd., unreported, High Court, Finnegan J., 27 February2000, it was held that the relevant planning permission implicitly authorised the erectionof a steel structure to replace an existing structure. Crucially, the replacement structurewas of the same dimensions as the existing structure, and would, in any event, have been“exempted development”.“It was therefore necessary, if the development should proceed, that a strongersteel structure capable of supporting the cladding be provided. This replacementsteel structure as to its external dimensions will correspond both as to height andfloor area with that which is being demolished. The external appearance of thebuilding will be in accordance with the planning permission condition 3 thereof. Inthese circumstances the course of conduct which the Respondent has undertaken isin direct consequence of the imposition of the said condition 8 in the IntegratedPollution Control Licence. It is therefore within the category of unforeseenvariations mentioned by Denning M R and as such authorised by the planningpermission. It is also immaterial having regard to what I have said as to its floorarea, height and the fact that its external appearance will be determined inaccordance with condition 3 of the planning permission and so unaffected by thevariation. In short the variation in the development is within the terms of theplanning permission. It is also exempted development pursuant to the LocalGovernment (Planning and Development) Regulations 1995 Article 9 A as insertedby the Local Government (Planning and Development) Regulations 1995.”119. The judgment most directly on point is that of the Court of Appeal in Bailey v. KilvinaneWind Farm [2016] IECA 92. The Court of Appeal held at paragraph [87] that an increasein rotor diameter of 23 metres was a material deviation.“The same reasoning also applies in the context of the diameter size of theturbines. As constructed the two turbines, T3 and T4, each have a rotor diameterof 90m, which is 23m. larger than that sanctioned by the 2002 planningpermission, thus very significantly extending the sweep of the rotor circumference.The sweep of the rotor diameters thus rises from 57π (57 x3.1416 = 179m.) to 90πPage 30 ⇓(57 x 3.1416 = 283m.). It is impossible to say that such a large and appreciableincrease in the diameter size of the rotors beyond that sanctioned by the planningpermission is not material. The potential impact in terms of sightlines (and othervisual impacts), noise, shadow flicker and the overall footprint of these largerturbines on third parties is simply too great.”120. The increase in rotor diameter in the present case is 13 metres. I am satisfied, forreasons similar to those set out in the judgment in Kilvinane Wind Farm that this is amaterial deviation.121. The materiality of the deviation has to be assessed by reference to the description of thepermitted development as per the grant of planning permission. The descriptionexpressly refers to a rotor diameter of 90 metres. Indeed, the precise purpose of theapplication had been to allow for an increase of 10 metres from that permitted under the2005 planning permission.122. There is a further reason that the Developer cannot rely on the concept of “immaterialdeviations”. The case law indicates that the rationale for allowing some flexibility inplanning permissions is to address unexpected contingencies during the course of thecarrying out of the development. On the facts of the present case, the decision to changeturbine types was a deliberate decision made in advance of the carrying out of the works.This was not an unexpected event such as might benefit from the concept of “immaterialdeviations”. The materials put before the Board in the context of the Section 5 referenceindicate that this decision was informed by considerations other than visual amenity.“The reason for this selection is to facilitate the use of the best available technologyat the wind farm, ensuring that the wind farm can harness the local wind capacityto its full potential, thus ensuring that the viability of the development is notcompromised.”123. The court is not tasked nor properly qualified to determine whether or not planningpermission should be granted. For this reason, the arguments made by the Developerwhich touch upon the merits of the proposed development, and invite the court to engagein a detailed “compare and contrast” exercise as between the environmental impacts ofthe “as permitted” and “as built” turbines is inappropriate. This is not the function of thecourt. It is no answer to a complaint that a person has carried out development withoutthe requisite planning permission to say that it is highly likely that had a planningapplication been made same would be granted. A developer cannot short-circuit theprocess in this way. This is especially so in the context of an EIA development projectsuch as that in issue in the present proceedings.124. The correct legal analysis is that the court is merely deciding whether or not theDeveloper is required to make a planning application. The court is not making anyadjudication as to whether planning permission will be granted, or whether the planningapplication is subject to environmental impact assessment for the purposes of the EIADirective. These are all matters for the expert decision-makers who have been entrustedPage 31 ⇓with these functions under the planning legislation. The case law is all in one direction,and it is to the effect that matters of planning judgment are best left to the local planningauthorities and An Bord Pleanála.COMPLIANCE SUBMISSION125. The Developer contends that the change in wind turbine type has been authorised by dintof the planning authority having “agreed” to the compliance submission by its letter dated13 December 2013. In circumstances where no application for judicial review has beenmade seeking to question the validity of this decision-letter, it is said to be immune fromchallenge. The decision-letter is said to be binding on the court and cannot be impugnedin these enforcement proceedings. Counsel relies in this regard on Section 50 of the PDA2000, and the judgment of the Supreme Court in Kenny v. Provost, Fellows & Scholars ofthe University of Dublin, Trinity College [2009] IESC 19.126. I have concluded that the decision-letter of 13 December 2013 cannot be relied upon asauthorising the alterations to the rotor diameter of the wind turbines for the following tworeasons.127. First, as a matter of interpretation, the decision-letter cannot be read as “agreeing” to anincrease in rotor diameter in circumstances where the Developer did not expresslyrequest agreement to this increase. Planning documents are to be interpreted in theirordinary meaning as they would be understood by members of the public, without legaltraining, as well as by developers and their agents, unless such documents, read as awhole, necessarily indicate some other meaning. (See In re XJS Investments Ltd.[1986] IR 750).128. The decision-letter is headed up as follows.“Re: PD 11/400 – permission for a modification to the permitted BarranafaddockWind Farm (Planning Ref. 04/1559 & An Bord Pleanála reference number PL24.213290 in the townlands of […] Co. Waterford. The modifications include aproposed increase in turbine hub height (to 80m) of three of the permitted 11turbines, and an increase in rotor diameter of all turbines to 90m (from 80m) andthe micro-siting of ten of the permitted turbines. As a result of this modificationthere will also be associated minor revisions to the supporting civil infrastructuredesign including the provision of a borrow pit and the modification and relocation ofthe permitted substation.”129. As appears, the description of the development expressly refers to a rotor diameter of 90metres. A person reading the decision-letter would naturally assume that this is all that ispermitted. There is no other reference to rotor diameter in the decision-letter, and thereis literally nothing which indicates that an increase in rotor diameter to 103 metres hasbeen agreed to.130. It is no answer to this to suggest that the heading of the decision-letter might have beenintended merely to reflect the description of the permitted development as per the 2011Page 32 ⇓planning permission. There is nothing in the decision-letter which indicates that theheading is intended to refer to anything other than the form of development as agreed bythe planning authority. Moreover, the very fact that the planning permission only permitsa rotor diameter of 90 metres emphasises that the planning authority could not use theoccasion of agreeing points of detail to rewrite the planning permission. See Treacy v. AnBord Pleanála [2010] IEHC 13, [78]. The High Court (MacMenamin J.) emphasised thatSection 34(5) of the PDA 2000 cannot be read in such a manner as to allow a matter ofdetail turn the framework or substance of the grant of planning permission on its head.Any matter of detail must perforce fall within the four walls of the parent grant ofpermission. It cannot denature it.131. Returning to the facts of the present case, the planning authority would not have hadjurisdiction under Condition No. 3 of the planning permission to authorise an increase inthe rotor diameter beyond the 90 metres prescribed under the planning permission. Thisis especially so in circumstances where the condition singles out “height” as the onlyaspect of the scale or dimensions of the wind turbines which might be subject toagreement. Even then, the planning authority would only have had jurisdiction to agree aheight equal to or less than the maximum height of 125 metres permitted under the 2011planning permission. The reason stated for the imposition of the condition was “in theinterests of visual amenity”, and it thus allowed for the possibility of a reduction in thepermitted height.132. The hypothetical intelligent person reading the decision-letter must be taken as beingaware of the content of the compliance submission of 6 November 2013, and as havingread the decision-letter in conjunction with same. As appears from the extract from thecompliance submission set out at paragraph 26 above, the Developer did not expresslyseek the agreement of the planning authority to an increase in rotor diameter.133. It is not enough, as has been contended for by counsel on behalf of the Developer, thatthe proposed alteration is capable of being deduced by either (i) carrying out themathematical exercise of subtracting the figure stated for the hub height from that statedfor the maximum tip height of the turbines, and then multiplying the resulting figure bytwo, or (ii) by a careful examination of the fine print of the A3 Schematic GE Turbinewhich had been included in Appendix B of the compliance submission.134. Had the Developer wished to obtain the planning authority’s agreement to an increase inrotor diameter, then this should have been stated in express terms in the body of thecompliance submission. Neither a planning authority nor a member of the public shouldbe expected to wade through extensive documentation in order to attempt to ascertainwhat precisely it is that a developer is seeking agreement to. Public participation lies atthe heart of the planning process. This is especially so in the context of development,such as the present case, which consists of a project subject to the public participationrequirements of the EIA directive.135. The second reason for saying that the decision-letter cannot be relied upon as authorisingthe increase in rotor diameter is, perhaps, more fundamental. It is a requirement of thePage 33 ⇓EIA Directive that any “change” or “extension” of projects already authorised, executed orin the process of being executed, which may have significant adverse effects on theenvironment, must itself be subject to assessment. It is necessary, therefore, that a formof screening exercise be carried out before a decision to authorise a change or extensioncan lawfully be made.136. On the Developer’s case, the decision-letter is said to have authorised a change to apermitted EIA development project. This involved an increase in the rotor diameter from90 metres to 103 metres. (It will also be recalled that the original 2005 planningpermission had only allowed for a rotor diameter of 80 metres). This “change” or“extension” should have been screened in order to determine whether it is likely to haveadverse effects. There is simply no evidence that Waterford County Council carried outsuch an exercise prior to the issuance of the decision-letter. Rather, the decision-letterbaldly states: “Condition 3 Noted and agreed”. Such an unreasoned decision cannot havehad the legal effect of authorising the change contended for.137. In this regard, a loose analogy can be drawn with the facts of Bailey v Kilvinane WindfarmLtd. [2016] IECA 92. The developer in that case had sought to rely on writtenrepresentations made by an official of the local planning authority to the effect that anextension of the blade length of proposed wind turbines were acceptable to the planningauthority. (In contrast to the present case, the written representations had not beenmade pursuant to Section 34(5) of the PDA 2000).138. The Court of Appeal considered that it was not reasonable for the developer in that caseto have relied upon these written representations. Whereas this finding was informed, inpart, by the fact that the written representations were informal, the court also attachedsome weight to the fact that no assessment of the impact of the changes had beencarried out by either the developer or the planning authority. See paragraphs [100] and[101] of the judgment.“It is inherent in the doctrine of good faith as a general principle of law that anyparty seeking to avail of that principle should show appropriate regard for the rightsof third parties who might reasonably be affected by their actions. There is nothingat all to suggest that either the developer or, for that matter, the Council official inquestion gave any consideration to this issue. In such circumstances no sensibledeveloper could reasonably suppose that a planning authority could informallysanction such deviations from location and rotor diameter without a formalassessment of the potential planning and environmental impact of these changesand especially their potential effects on third parties.It is obvious that any thing other than trifling changes in terms of the location ofthe turbines and the size of the diameter of the rotor blades could have majorimplications for local residents in terms of visual impact, sight lines, noise andshadow flicker. Viewed objectively, therefore, one could not say that anyconclusion that the development had been constructed in accordance with theterms of the planning permission or that these admitted deviations were notPage 34 ⇓material was one which, adopting the language of O’Sullivan J. in AltaraDevelopments, a developer could reasonably hold. This was especially so when noconsideration whatever was given to the rights of the neighbours who lived in theimmediate vicinity of the wind farm as to the potential effects of these changes.”139. Counsel on behalf of the Developer has argued that, in circumstances where it was notchallenged at the time, the decision-letter of 13 December 2013 is immune from judicialreview. It is said, therefore, that it does not matter whether the decision-letter is lawfulor not, it cannot be questioned in these enforcement proceedings.140. With respect, this argument overstates the effect of Section 50 of the PDA 2000. Relianceon that section is not available in circumstances where a decision is bad on its face and/orexhibits an error of law. See, for example, Mone v. An Bord Pleanála [2010] IEHC 395,[83] and [84].“It would seem to me that as a matter of common sense, where a grant as in thiscase has been issued without the relevant statutory basis, it can have no force.The fact that the erroneous grant was not challenged could in no way confer it withretroactive validity; such is wholly outside of the legislative scheme which entirelygoverns this area of law. The 1998 grant was therefore wholly illusory; it was agrant in name only, having no possible basis in either law or fact. No future actionscould change this. The council had no power or jurisdiction to make the grant. Itmust therefore follow that any subsequent decision which places reliance upon thismust be similarly flawed, being based on no legitimate legal or factual basis. TheBoard’s decision that the development was based on a valid planning permission, aswell as being erroneous, was a decision it had no power to make; it was notpossible as a matter of law for the Board to retroactively confer validity on the 1998grant.The argument of the Board by reference to s.50 of the Act of 2000 is misconceived.That section (subject to the court’s power to extend time, which here is notrelevant) is a time limit restriction operating not as a matter of defence but ofjurisdiction. It regulates the challenge to a decision, nothing more. It leavesunaltered the legal status of the decision. It has no influence on the lawfulness oreffect of the decision. It gives it no badge of either approval or disapproval. Itprevents challenge. Notwithstanding these views the practical effect of this sectionis that in almost all cases once the time period has expired, no furtherconsideration will be required or needed. But exceptionally, as here, where asubsequent decision depends on conferring the status of legality on a legal nullity,that decision will not be allowed to stand.”141. A similar approach had been taken by the High Court, in the specific context of a Section5 declaration, in Wicklow County Council v. Fortune (No. 3) [2013] IEHC 397. Hogan J.declined to rely on a Section 5 determination issued by a planning authority incircumstances where the court considered that the reasons given for the determinationwere “not altogether satisfactory”. This was so notwithstanding that the actual validity ofPage 35 ⇓the Section 5 determination had not been under challenge in the proceedings. (Theproceedings in Fortune (No. 3) were enforcement proceedings under Section 160 of thePDA 2000).142. The argument for saying that the court is entitled to disregard a planning decision whichis bad on its face is even stronger in the context of EIA projects. The very recentjudgment of the CJEU in Case C-261/18, Commission v. Ireland (Derrybrien) hasemphasised that a Member State cannot deem a development project, which has beencarried out in breach of the requirements of the EIA Directives, to be authorised simplybecause the domestic time-limits for legal challenges to the relevant development consenthave expired.“80 Similarly, Directive 85/337 precludes projects in respect of which the consent canno longer be subject to challenge before the courts, because the time limit forbringing proceedings laid down in national legislation has expired, from beingpurely and simply deemed to be lawfully authorised as regards the obligation toassess their effects on the environment (judgment of 17 November 2016, StadtWiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 43).[…]94 In any event, Ireland simply states that, after the expiry of the period of 2 months,or 8 weeks set by the PDAA, respectively, the consents at issue could no longer bethe subject of a direct application to a court and cannot be called in question by thenational authorities.95 By its argument, Ireland fails to have regard, however, to the case-law of the Courtreferred to in paragraph 80 above, according to which projects in respect of whichthe consent can no longer be subject to challenge before the courts, because thetime limit for bringing proceedings laid down in national legislation has expired,cannot be purely and simply deemed to be lawfully authorised as regards theobligation to assess their effects on the environment.96 It must further be noted that while it is not precluded that an assessment carriedout after the plant concerned has been constructed and has entered into operation,in order to remedy the failure to carry out an environmental impact assessment ofthat plant before the consents were granted, may result in those consents beingwithdrawn or amended, this is without prejudice to any right of an economicoperator, which has acted in accordance with a Member State’s legislation that hasproven contrary to EU law, to bring against that State, pursuant to national rules, aclaim for compensation for the damage sustained as a result of the State’s actionsor omissions.”143. Mr McGrath, SC, on behalf of the Developer, submitted that the within proceedings didnot give rise to any issue of EU law. The facts of the present case were said to be entirelydistinguishable from those of McCoy v. Shillelagh Quarries Ltd. The original version of thePage 36 ⇓proposed development had been subject to EIA by An Bord Pleanála at the time of thegrant of the first planning permission in 2005. The Applicants did not seek to challengethe 2011 planning permission, and would be precluded from doing so now by virtue of theexpiration of the eight-week statutory time-limit. It is said that there is no evidencebefore the court that there had been any failure to comply with the EIA Directive at thetime of the grant of this planning permission.144. Counsel made a cogent argument to the effect that the EIA Directive allowed for thepossibility of points of detail being agreed subsequent to the grant of developmentconsent, and submitted that the change in turbine type had been lawfully authorised bythe decision-letter of 13 December 2013 issued in response to the compliancesubmission. This decision-letter had never been challenged by the Applicants, and,therefore, neither they nor the court could go behind same. On this analysis, theresimply was no breach of EU law.145. This argument was made with conviction, and merits careful consideration. Havingreflected on same for a number of weeks now, and having regard to the supplementalwritten legal submissions filed on 5 December 2019, I have come to the conclusion thatthe legal position is more nuanced. The argument advanced on behalf of the Developerhas, at its core, the proposition that the domestic law time-limits on judicial reviewproceedings constrain the court’s jurisdiction in enforcement proceedings. The logic ofthe argument is that even if a court considered that development consent had beengranted in breach of the EIA Directive, the court would be powerless to restrain thecontinuation of a development project. This would be so irrespective of how egregiousthe breach is or how obviously defective the decision relied upon is. This argumentcannot be reconciled with the requirements of the EIA Directive and the manner in whichdomestic time-limits have been treated of in the case law of the CJEU.146. Member States are obliged under Article 10A thereof to provide effective, proportionateand dissuasive penalties for breaches of the EIA Directive. It would be inconsistent withthis obligation were an obviously deficient decision to be allowed block effectiveenforcement against an EIA project which had been carried out in breach of the EIADirective. On the facts of the present case, as found by this court, the Developer carriedout development without the requisite planning permission. The 2011 planningpermission did not authorise the erection of wind turbines of the scale and dimensionsactually put up. The subsequent decision relied upon to authorise this, i.e. the decision-letter of 13 December 2013, could not have had this purported legal effect for the reasonsoutlined at paragraphs 135 et seq. above. This courts obligation to give effect to the EIADirective cannot be negated by the decision-letter of 13 December 2013.DISCRETIONARY FACTORS147. The Developer submits in the alternative—without prejudice to its principal argument thatthere has been no “unauthorised development”—that the circumstances of the case aresuch that relief should be refused as a matter of discretion. Counsel emphasises that thecourt enjoys a broad discretion under Section 160 of the PDA 2000. The judgments ofthe Supreme Court in Meath County Council v. Murray [2017] IESC 25; [2018] 1 I.R.Page 37 ⇓189; [2017] 2 I.L.R.M. 297 (“Murray”) and An Taisce v. McTigue Quarries Ltd.[2018] IESC 54; [2019] 1 I.L.R.M. 118 (“McTigue Quarries”) are cited in this regard.148. Counsel then identifies a number of factors which, it is said, indicate that the court’sdiscretion should be exercised against the grant of relief. First, any departure from theterms of the 2011 planning permission is not material and does not give rise to anyadditional impacts on the environment when compared with the “as permitted” turbines.Secondly, the developer has acted in good faith at all times and, in particular, sought andobtained the agreement of Waterford County Council to the change in turbine type.Thirdly, the Developer had made an application for leave to apply for “substitute consent”under Part XA of the PDA 2000 as early as January 2019. An Bord Pleanála made adecision in August 2019 to the effect that substitute consent was not necessary. (TheBoard’s decision is the subject of judicial review proceedings, and the parties informedthis court that An Bord Pleanála has indicated an intention to consent to an order ofcertiorari on certain, limited grounds). Fourthly, it is said that there has been delay onthe part of the Applicants: the wind farm has been operational since 2015, but the withinproceedings were not instituted until February 2019. Finally, it is said that there is apublic interest in the continued operation of the wind farm as a source of renewableenergy.149. Counsel submits that the court’s discretion is unaffected by any considerations of EU law.In particular, it is said that the Applicants have failed to demonstrate that there has beenany breach of the EIA Directive.150. It is submitted that it does not necessarily follow from the judgment in C-261/18,Commission v. Ireland (Derrybrien) that it is necessary for a development to ceaseoperations while an application for retrospective development consent is undertaken. Anyquestion in relation to the suspension or revocation of a consent can be addressed as partof the substitute consent process. It is said that the grant of relief under Section 160 ofthe PDA 2000 would be disproportionate. See §7 of the supplemental written legalsubmissions of 5 December 2019, as follows.“In the circumstances of this case, it is submitted that the grant of relief undersection 160 of the 2000 act would be disproportionate and is not required on foot ofthe duty of sincere co-operation. The grant of relief in this case is not necessary toachieve the objectives of the Treaty in relation to the assessment of environmentalimpacts and, indeed, would go beyond what is necessary. What is necessary toachieve the objectives of the Treaty is, at a maximum, the assessment of the use ofthe particular turbine in accordance with the requirements of the EIA Directive.That can be achieved through an application for Substitute Consent and there is norequirement for the wind farm deceased operation for that to be achieved.”151. The conduct of the Developer in the present case in seeking to regularise the planningstatus of the wind turbines is said to stand in “stark contrast” to that of the operator ofthe Derrybrien Wind Farm. See §10 of the supplemental written legal submissions.Page 38 ⇓FINDINGS OF THE COURT ON DISCRETION152. For ease of exposition, it is proposed to address the various discretionary factors byreference to the broad categories of considerations identified by the Supreme Court inMurray and McTigue Quarries.The nature of the breach: ranging from minor, technical and inconsequential up tomaterial, significant and gross153. The breach in this case is material. An increase in rotor diameter of 13 metres cannot becharacterised as minor or technical. This breach also has to be seen in the context of adevelopment project which is subject to the EIA Directive. The discretion of the court to“forgive” a breach of this type is more limited.Conduct of Developer154. The conduct of a developer and, in particular, its attitude to planning control, are relevantconsiderations. It is important to recall, however, that the judgment in Murray statesthat the fact that a developer had been acting in good faith, whilst important, will notnecessarily excuse him from an order. This point has been reiterated in McTigueQuarries.155. The judgment in Murray indicates that the reason for an infringement of planning controlmay range from genuine mistake, through to indifference and up to culpable disregard.The conduct of the Developer in the present case lies towards the former end of the scale.The evidence before the court establishes that the Developer had been acting in goodfaith. In particular, the Developer had engaged proactively with the planning authority.See, for example, the records of meetings between the Developer’s consultants and theplanning authority. The mistaken attempt to rely on Condition 3 as the basis for changingthe turbine type is indicative of a mistake rather than any culpable disregard.Nevertheless, ignorance of the law cannot be an excuse for non-compliance with aplanning permission. It was not reasonable for the Developer to rely on Condition No. 3as a vehicle through which to introduce significant changes to the wind turbines.Moreover, it is of little credit to the Developer that the terms of the compliancesubmission did not make it expressly clear that what was being sought was theagreement of the planning authority to a change in rotor blade diameter.The attitude of the planning authority156. Following upon the issuing of An Bord Pleanála’s Section 5 declaration, the planningauthority served an enforcement notice on the Developer. (The enforcement notice isnow the subject of separate judicial review proceedings). The fact that the local planningauthority has been moved to take enforcement action is a factor which points in favour ofgranting relief.The public interest in upholding the integrity of the planning and development systemPage 39 ⇓157. The fact that this development is subject to the EIA Directive is a relevant considerationunder this category. Article 10A of the EIA Directive (as most recently amended byDirective 2014/52/EU) provides as follows.“Member States shall lay down rules on penalties applicable to infringements of thenational provisions adopted pursuant to this Directive. The penalties thus providedfor shall be effective, proportionate and dissuasive.”158. Weight must be given to this the exercise of the court’s discretion. One of therequirements of the EIA Directive is that any “change” or “extension” to a previouslypermitted project which is likely to have a significant adverse effect must be subject to(further) environmental impact assessment. It is necessary, therefore, to carry out aform of screening exercise to determine whether a change or extension is likely to have asignificant adverse effect. Whereas it may well be the position that the outcome of ascreening exercise in relation to the change in the scale and dimensions of the turbineswould be that no EIA is required, this does not obviate the legal requirement to carry outsuch a screening exercise. (See Case C-215/06, Commission v. Ireland to the effect thatthe failure to carry out a screening exercise represents a breach of the EIA Directive).159. The High Court (Baker J.) held in McCoy v. Shillelagh Quarries Ltd. [2015] IEHC 838, [84]and [85]. that the exercise of the court’s discretion should be informed by reference to EUenvironmental law.“I consider myself constrained further by the requirements of European Communitylaw, and especially the EIA Directive and the Habitats Directive as each of thesemandates that an Environmental Impact Statement is required in respect of theoperation of this quarry.Accordingly, were I to refuse injunctive relief or grant injunctive relief with respectto some of only of the operation, I consider that my decision would be one whichcould be characterised as a failure to respect the integrity of the environmentallegislation, and allow the development to continue when it is unauthorised underIrish and when Irish law arises as a result of the obligations of Ireland andCommunity law.”160. Counsel for the Developer in the present case points out—entirely correctly—that thebreach of EU law at issue in Shillelagh Quarries Ltd. was very serious and had continuedfor many years, and that an application for substitute consent had been refused.Whereas the breach in the present case is of a much lesser order, the EU law dimension isnevertheless a factor to which some weight must be given.Public interest in general161. The Developer relies in this regard on the fact that the development is of a type whichprovides renewable energy and that this is in the public interest. As against this, it has toPage 40 ⇓be said that the overall impact of an order restraining the operation of this individualdevelopment project would be minimal in the national context.Conclusion162. As appears from the foregoing discussion, there are a number of discretionary factorswhich are in favour of the Developer. These have to be weighed against the factors whichpoint towards the grant of relief. The principal of these is that the development project isof a type subject to the EIA Directive. The EIA Directive obliges a Member State toprovide effective, proportionate and dissuasive penalties for breaches of nationallegislation. The importance of ensuring compliance with the EIA Directive has veryrecently been emphasised by the judgment of the CJEU in Case C-261/18, Commission v.Ireland (Derrybrien).163. I have concluded that the court’s discretion should be exercised as follows. TheDeveloper should be afforded an opportunity to regularise the planning status of the windturbines. It would be inappropriate, therefore, to make an order requiring the immediateremoval of the wind turbines. Rather, the Developer is to be afforded a furtherreasonable period of time within which to seek, if possible, to regularise the planningstatus of the lands.164. (The precise mechanism by which this might be achieved is itself the subject of separatejudicial review proceedings. More specifically, there is a dispute as to whether theapplication for leave to apply for substitute consent should be remitted to An BordPleanála. This dispute is listed for hearing before the Commercial List of the High Courtthis morning (6 December 2019).)165. It would not, however, be appropriate to allow the operation of the wind turbines tocontinue uninterrupted pending the outcome of an application for leave to apply forsubstitute consent. This is similar to the approach which had been adopted by the Courtof Appeal in Bailey v. Kilvinane Wind Farm. There has been a breach of EU law, and thiscourt is obliged to ensure that there is an effective and dissuasive remedy for same.166. Counsel for the Developer has made a submission to the effect that—in circumstanceswhere An Bord Pleanála has an express statutory power to direct the cessation ofdevelopment pending the determination of an application for substitute consent—thecourt should, in effect, leave it to An Bord Pleanála to decide whether any interimmeasures are required. This submission is correct insofar as it goes. It is, however, clearfrom the wording of the relevant provision, namely Section 177J of the PDA 2000, thatthe Board’s jurisdiction to issue a direction only arises subsequent to a decision to grantleave to apply for substitute consent. It seems that only the court has jurisdiction tomake an order requiring the cessation of operations pending the making of a decision togrant leave to apply for substitute consent. I propose, therefore, to make an orderrestraining the operation of the wind turbines pro tem. The Developer has liberty toapply, on seven days’ notice to the Applicants, to have this order vacated in the eventPage 41 ⇓that An Bord Pleanála makes a decision to grant leave to apply for substitute consent. Iwill hear both parties at that stage.167. In the event that substitute consent is granted, I would propose to vacate the orderentirely. Again, however, I will hear the parties before making any order to this effect.CONCLUSIONS AND FORM OF ORDER168. The Section 5 declaration precludes the Developer from reagitating the argument that the“as built” wind turbines are authorised by the 2011 planning permission. The Developerhad a full opportunity of making its case in this regard to An Bord Pleanála. In particular,the Developer had made submissions before the Board to the effect, first, that thedecision-letter of 13 December 2013 authorised the change in scale and dimensions ofthe wind turbines; and, secondly, that the circumstances of the case were distinguishablefrom those of the Kilvinane Wind Farm. Those submissions were, ultimately, rejected byAn Bord Pleanála.169. In circumstances where the Developer did not challenge the Section 5 declaration, theDeveloper is estopped from seeking to reopen the Board’s findings in these proceedings.170. The 2011 planning permission did not authorise the erection of wind turbines of the scaleand dimensions actually put up. In circumstances where the wind farm is subject to therequirements of the EIA Directive, the proposed increase in rotor diameter constituted a“change” or “extension” of a permitted development, and could only have been lawfullyauthorised by way of the making of an application for planning permission.171. The Developer is not entitled to rely on the alleged agreement of the planning authority tothe compliance submission as providing authorisation for the “change” or “extension”. Onits correct interpretation, the decision-letter of 13 December 2013 does not have thiseffect. Moreover, the planning authority would not, in any event, have had jurisdiction toapprove the “change” or “extension” pursuant to Section 34(5) of the PDA 2000.172. The Developer should be afforded an opportunity to regularise the planning status of thewind turbines. It would be inappropriate, therefore, to make an order requiring theimmediate removal of the wind turbines. Rather, the Developer is to be afforded afurther reasonable period of time within which to seek, if possible, to regularise theplanning status of the lands.173. There will be an order made pursuant to Section 160 of the PDA 2000 restraining theoperation of the wind turbines pro tem. The Developer has liberty to apply, on sevendays’ notice to the Applicants, to have this order vacated in the event that An BordPleanála makes a decision to grant leave to apply for substitute consent.
Result: Order restraining use of wind turbines granted.
The Corporation of Dun Laoghaire v Parkhill Developments Ltd
, Oliver Parkinson Hill and Christopher Kearns
1987 No. 657 MCA
High Court
13 January 1989
[1989] I.L.R.M. 235
(Hamilton P)
13 January 1989
Subject: Planning
HAMILTON P
delivered his judgment on 13 January 1989 saying: This is an application brought by the applicant herein for an order pursuant to the provisions of s. 27 of the Local Government (Planning and Development) Act 1976 to compel the respondents herein to:
(1) Forthwith complete a residential housing development known as ‘Highthorn Woods’, Upper Glenageary Road, Dun Laoghaire in the County of Dublin to the reasonable satisfaction of the applicant. *236
(2) Requiring the respondents to forthwith comply with all the conditions attached to the planning permission granted by the applicant in respect of the said development on 19 October 1978.
(3) Requiring the respondents to forthwith carry out the work set out in the schedule to the notice of motion.
(4) Requiring the respondents to furnish ‘as constructed’ plans of the estate in question in accordance with the directions for that purpose set out in paragraph 21 of the schedule attached to the notice of motion as follows:
Showing lay-out of estate and locations of all services. Main drainage system should be shown in colour, including locations of manholes and gullies and connections to the main drains, levels and gradients as well as type and size of pipes; waters supply showing size and type of pipes and locations of all fittings should also be shown in colour.
The application was grounded on the affidavit of Martin Quirke, civil engineer, employed by the applicant herein, sworn on 11 June 1987 and filed on 17 June 1987.
It appears from this affidavit that:
(a) The first-named respondent is a limited liability company which has its registered office at 4 Willow Bank, Monkstown in the County of Dublin, is the owner of the lands known as ‘Highthorn Woods’, Glenageary in the County of Dublin on which housing development on foot of the planning permission granted by the applicant on 19 October 1978, subject to the conditions therein set forth, has been carried out by the first-named respondent. That the housing construction of the 10 houses in the said estate ceased in or about 1982 and that the estate has not been completed in accordance with the said planning permission and in particular the works set out in detail in the schedule to the notice of motion issued herein required to be carried out to bring the estate up to a reasonable standard so as to enable it to be taken in charge by the applicant.
The second and third-named respondents are directors of the first-named respondent company.
It is not contested by or on behalf of the respondents herein that the schedule of works required to be completed as set out in the schedule attached to the notice of motion is not accurate nor is it contested that the said works require to be done to complete the development in accordance with the terms of the planning permission.
In his affidavit sworn on 24 September 1987, the second-named respondent, Oliver Parkinson Hill, averred, inter alia, that:
(a) He was a shareholder and director of the first-named respondent company.
(b) The development, the subject matter of the application herein, was carried out by the first-named respondent, Parkhill Developments Ltd.
(c) The said respondent, Parkhill Development Ltd, had become insolvent and had not traded for some period of time.
(d) That the said respondent, Parkhill Developments Ltd, had no funds available to enable it to complete the said development.
(e) While acting as director of the said first-named respondent he at all times acted in a proper manner and that he or any other director was not guilty of any impropriety in the conduct of the first-named respondents affairs, and
(f) That he was not liable personally for any default on the part of the first-named respondent company.
The third-named respondent, Christopher Kearns, in his affidavit sworn on 3 July 1987 averred, inter alia, that:
(a) Prior to 1974 he had never acted as a director or officer of any company.
(b) Prior to 1974 he was always employed as a general building worker.
*237
(c) As a result of discussions with the second-named respondent in 1974 he agreed to become a partner in a building firm which he was about to incorporate and did in fact incorporate on 16 July 1974.
(d) He knew nothing about company law and signed all documents put before him without reading the contents of same.
(e) He never signed any cheques on behalf of the first-named respondent, never received any dividend in respect of his shareholding or any director’s fees or any share of the profits.
(f) He was paid a weekly wage and pay-as-you-earn and P.R.S.I. were deducted.
A notice of itention to cross-examine the second and third-named respondents of their affidavits was served and they were duly cross-examined thereon.
The conclusion of the said cross-examinations, it was stated on behalf of the applicants that no order was being sought against the third-named respondent.
An order was sought against the second-named respondent however on the grounds that he and the first-named respondent were indistinguishable in law for the following reasons:
1. No annual general meeting of Parkhill Developments Ltd was ever held.
2. No formal meetings of the directors of that company was ever convened.
3. No director’s fees or dividends on his shares were paid to Mr Kearns, the other director.
4. No financial reports were issued to the shareholders.
5. The second-named respondent was the only person with knowledge of the financial affairs of the first-named respondent company, and
6. The second-named respondent was in total control of Parkhill Developments Ltd and managed some without reference, inter alia, to ss. 131 and 148 of the Company’s Act 1963.
I have no doubt having heard the evidence of the second-named respondent, that he was in effective control of the first-named respondent company, that he failed to comply with the requirements of the Companies Act 1963 but I have found no evidence of any fraud on his part, any misrepresentation on his part, any siphoning off or misapplication of the funds of the said company or of negligence in the carrying out of the affairs of the said company.
The facts in this care are not dissimilar to those in the case of Dublin County Council v Elton Homes Ltd [1984] ILRM 297.
The main difference between the instant case and that case is that the company, Elton Homes Ltd was in liquidation whereas the first-named respondent company in this case is insolvent and has ceased trading.
In the course of his judgment in that case, Barrington J stated at page 300 of the said report that:
The question arises of whether the Court can or ought to make an order against Mr Keogh and Mr English personally as the former directors of the company. Let me say at once, that I think it may be quite proper, in certain circumstances, to join the directors of a company as respondents when an application is made by a planning authority against a company pursuant to the provisions of section 27. Mr Gallagher, who appeared for the planning authority, referred me to a motion Dublin County Council v Crampton Builders Ltd which came before the President on 10 March 1980 in which directors of a building firm had been joined as respondents to the motion. The President did not in that case make an order against the directors but he apparently said that, in his view, section 27 was sufficiently widely drafted to empower the joining of a company directors as respondents, *238 but that whether an order would or would not be made against them would depend on the facts of each individual case. There may be many cases, particularly in the case of small companies, where the most effective way of ensuring that the company complies with its obligation is to make an order against the directors as well as against the company itself, But in such a case the order against the directors would be a way of ensuring that the company carried out its obligations. A body corporate can only act through its agents and the most effective way of ensuring that it does in fact carry out its obligations might be to make an order against the person in control of it.
What is sought against the second and third-named respondents in the present case was very different. They are no longer in control of the company and it is suggested that, through the company, the company can be forced to carry out its obligations. What is suggested is that because they were directors of the company at the time when the company obtained planning permission that they should be ordered to complete the development at their own expense. I am not saying that there might not be cases where the court would be justified in making such an order. If that case were one of fraud, or if the directors had siphoned off large sums of money out of the company, so as to leave it unable to fulfil its obligations, the court might be justified in lifting the veil of incorporation and fixing the directors with personal responsibility. But that is not this case. The second and third-named respondents appear to be fairly small men who, having failed in this particular enterprise, are not back working for others. The worst that can be imputed against them is mis-management….
It appears to me that Mr Keogh and Mr English traded with the benefit of limited liability in this case and that, in the absence of any evidence of impropriety on their part, I would not be justified in attempting to make them personally responsible for the default of the company.
In the course of his judgment in the case of Dublin County Council v O’ Riordan [1986] ILRM 104, Murphy J referred to this judgment of Barrington J and to a further judgment of McWilliam J in Ellis v Nolan High Court 1983 No. 18 MCA 6 May 1983.
In that case where an effort was made to obtain an order under s. 27 against directors of a private company, McWilliam J commented as follows:
I was informed by counsel that some orders had been made making directors amenable in certain cases, but I was also informed there was no reported cases or written judgments available so that I have no idea what was the form of proceedings of which such orders were made. A conglomeration of associated companies such as appears from the present proceeding deserves a very close investigation and directors may well be made responsible for fraud, misrepresentation, improper application of money or negligence. This would normally be done in a different form of proceeding and with a great deal more evidence that has been placed before me and I do not see how I could hold Sean Nolan responsible on this application merely because he made the application for planning permission in his own name.
Murphy J went on to say that:
I would respectfully agree with the views expressed by McWilliam J. S. 27 of the 1976 Act is a valuable summary remedy available to a wide range of interested parties to ensure compliance with the terms of which planning permissions are granted. This is a very desirable goal but justice certainly requires that if and in so far as it is to be alleged that the party against whom such an order is sought has been guilty of fraud or the misapplication of monies that some form of plenary proceedings should be instituted in which the party charged with such misconduct would have the opportunities which the legal system provides for knowing the full extent of the case being made against him and to have a proper opportunity to defend himself against it. Similarly, where the application turns upon the relationship between a director or shareholder in a company in which he is interested, I would anticipate that in most cases it would be necessary that the relationship should be investigated in the first instance by a liquidator in accordance with the procedures provided in the Companies Act for that purpose rather than seeking to establish all of the relevant facts from proceedings designed to be heard on affidavit.
*239
As I have found no evidence of any impropriety by the second-named respondent in the conduct of the affairs of the first-named respondent, I am satisfied that he traded with the benefit of limited liability in this case and I would not be justified in attempting to make him personally responsible for the admitted default of the first-named respondent company.
Consequently, I will refuse to make the orders sought against the second-named respondent but as the first-named respondent is still in existence, though insolvent, I will make the order sought by the applicants against the first-named respondent.
Johnson & Staunton Limited Plaintiff v. Esso Ireland Limited
[1990]
1 I.R. 289
, Costello J.
6th February 1990
On the 2nd September, 1985, a firm called Watson and Johnson (Greystones) Limited conveyed to the defendant the frontage of its property at Coolagad adjoining the Bray Road in County Wicklow on which a petrol service station had been erected. Watson and Johnson reserved out of the conveyance a right-of-way over two parts of the lands conveyed thus affording access by the public to the portion of the property retained by Watson and Johnson. Watson and Johnson later transferred that portion to the plaintiff and since the month of January, 1988, the plaintiff has operated on it the business of motor car sales and servicing. The plaintiff enjoys the main Toyota dealership for County Wicklow.
The defendant decided to carry out an elaborate development on its portion of the site and on the 23rd September, 1988, applied to the Wicklow County Council for permission to do so under the planning code. The application was accompanied with a plan, reference number RN33. Permission was duly granted. The letter enclosing the notification of the decision was dated the 17th October, 1988, and was signed by the County Secretary. It stated, inter alia, that the “Chief Fire Officer has indicated that the development should also comply with the following requirements”, and went on to refer to thirteen sets of requirements, the first of which stressed the need for strict compliance with the Dangerous Substances (Retail and Private Petroleum Stores) Regulations, 1979. The second requirement was to the effect that all surface areas within a four metre radius of all dispensing pumps should be surfaced with impervious and non-absorbent material.
The plaintiff appealed the decision to An Bord Pleanála. By a decision of the 7th March, 1989, the Board decided to grant permission but subject to a number of conditions set out in the second schedule of the decision. Thereafter the defendant, towards the end of September, 1989, started to develop the site. These
[1990]
1 I.R. Johnson & Staunton Ltd. v. Esso Ireland Ltd.
Costello J. 292
H.C.
proceedings were instituted by the plaintiff on the 9th November, 1989. Having obtained an interim injunction, the plaintiff then applied for interlocutory relief. By order of the 27th November I made an order restraining the defendant from trespassing on the plaintiff’s lands or interfering with the plaintiff’s right-of-way. That order is not now in dispute and remains in force until the trial of the action. I also made an order under s. 27 of the Local Government (Planning and Development) Act, 1976, restraining any further development on the site. Whether that order should be lifted pending the trial is one of the issues which I now have to decide.
There is, however, a second issue. By motion which I heard on 19th December, 1989, the defendant applied to vary the order of the 27th November. At the hearing of that motion it appeared on the evidence before me that the development was being carried out in breach of the Dangerous Substances Act, 1972, and the Regulations of 1979 made thereunder and I made a further order for a limited period (for reasons given in a judgment which has been transcribed and made available to the parties and which need not now be repeated) restraining any further development on the site by the defendant until permission for it under the Act of 1972 and the Regulations of 1979 had been obtained.
The defendant’s motion of the 12th December, 1989, has been re-listed and I am now requested to lift the s. 27 order made on the 27th November, 1989, and also the injunction made on the 19th December, 1989. Both these orders are merely interlocutory orders but they will, unless discharged, remain in force until the trial of the action, which has now been fixed for a date towards the end of May.
On the affidavits filed and the submissions made I can summarise the main issues that arise under the Act of 1976 as follows.
1. The permission granted by An Bord Pleanála to the defendant required the defendant before commencing development to obtain the approval of the County Council for a number of aspects of the proposed development. The defendant (it is admitted) breached these conditions and commenced the development without having obtained prior approval. A question arises as to whether this non-compliance justifies the making of an order under the section.
2. The defendant has also breached the Board’s permission by placing (a) two storage tanks and (b) the filling points of the storage tanks at positions on the site different to those shown on plan RN33. It now agrees to re-locate them to the correct positions. The effect of the breach on the remedial action proposed and on the parties’ rights is a matter for determination at the trial of the action.
3. The entrance to the proposed new service station is, it is claimed by the plaintiff, at a gradient which is not in accordance with the proper development of the site. The gradient was not shown on the plans which were lodged with the application for permission. The plaintiff submits that it should have been and that the court should halt development because of the gradient now proposed and the failure to disclose it. The defendant says that the gradient proposed affords no justification for a s. 27 order.
[1990]
1 I.R. Johnson & Staunton Ltd. v. Esso Ireland Ltd.
Costello J. 293
H.C.
4. RN33, as lodged with An Bord Pleanála, contained a line on the map and the words “extent of paving blocks to Fire Officer’s recommendations”.The plaintiff says that this map indicated (a) that there would be impervious paving blocks around the dispensing pumps and (b) that portion of the paving blocks would encroach outside the area of the defendant’s lands and onto the plaintiff’s lands by a distance of 4.6 feet. They say that the defendant can only lawfully develop in accordance with the development shown on RN33 and that this cannot be done because it (the plaintiff) will not permit this encroachment. The defendant says that it does not now intend to put in the paving blocks as shown on RN33 and that it will not encroach on the plaintiff’s lands.
An issue arises as to whether (i) this amounts to a departure from the plans on which permission was granted, (ii) whether the amended development proposed would amount to a breach of the permission granted, and (iii) if so, whether the court should restrain such breach under section 27.
5. The defendant proposes that the dispensing pump on the north-western corner of the site will now be used for dispensing diesel fuel. A question arises as to whether this amounts to a breach of the permission granted. The plaintiff argues that the plan showed that this pump was to be used for a different purpose and that the new proposal involves a breach of the permission granted. These submissions are contested by the defendant.
I can summarise the main issues that arise under the Act of 1972 and the Regulations of 1979 as follows.
1. The plaintiff says that under reg. 11 of the Regulations the defendant should have obtained permission before undertaking any work on the site. The defendant says that the letter of the 17th October, 1988, from the Council’s Secretary setting out the Fire Officer’s requirements amounted in effect to a permission under the Regulations to carry out work in accordance with those requirements. The first issue is whether this is correct. If it is not, the present development is clearly illegal.
2. If the letter of the 17th October, 1988, is a permission under the Act of 1972 and the Regulations then three further points will arise as follows.
(a) The defendant has clearly breached the terms of the permission in that it has placed the storage tanks and filling points at positions other than those shown on the application on which the permission was based. The defendant proposes to revert to the positions shown on RN33. A question arises as to the effect of the breach and the proposals to remedy it and on the exercise of the court’s discretion to grant equitable relief.
(b) The defendant says that it received a handwritten letter after the institution of these proceedings from the Assistant Chief Fire Officer of the Council dated the 13th November, 1989, which stated that an impervious area of 3.2 metres around the north-western dispensing pump instead of 4.2 metres as required in the letter of the 17th October, 1988, would suffice. A question arises as to whether it was legally competent for this official to amend the permission contained in the earlier letter.
(c) A further question arises as to whether the Council may, if the development which will take place is not in accordance with the permission granted by the letter of the 17th October, 1988, legally issue an ‘amended licence’ under reg. 11, para. 2 when the defendant has completed the work in its amended form.
3. Even if it should be held that the letter of the 17th October, 1988, is a permission under the Regulations and that an amended licence could be granted if the work is carried out in accordance with the amended plans, the plaintiff submits that the amended plans, if carried out, will involve a breach of the Regulations. It says that there will still be a breach of reg. 15, para. 2 and reg.33, para. 4 even though the north-western dispensing pump will be used for dispensing diesel fuel. It further says that the Assistant Chief Fire Officer could not dispense with compliance with the Regulations (as the defendant argued he had done) and that the letter of the 13th November, 1989, has no legal effect. The defendant denies these submissions and says that its amended plans will not breach the Regulations and that the Assistant Chief Fire Officer had power to waive them.
Because this is not the trial of the action but merely an interlocutory application, I am not required to express any concluded views on these issues. I must approach the question of interlocutory relief on well-established legal principles (see Campus Oil Ltd. v. Minister for Industry and Energy (No. 2) [1983] I.R. 88; American Cyanamid v. Ethicon Ltd. [1975] A.C. 396). On the facts so far established, it seems to me that the plaintiff’s business is likely to be severely disrupted if an injunction is not now granted and if the defendant is permitted to continue the development on the lines it now proposes. I do not think that an award of damages would adequately compensate the plaintiff for the temporary damage it would have suffered by this development should it transpire at the trial of the action that the plaintiff was entitled to have the development stopped. On the other hand, if the defendant was to succeed at the trial of the action, the damages which it would have sustained by the grant of an interlocutory injunction could be quantified without too much difficulty. The plaintiff has undertaken to pay damages should it lose the action and it has not been suggested that it could not honour its undertaking. Accordingly, this seems to me to be a case in which the plaintiff has established an entitlement to interlocutory relief.
But there is another reason for granting s. 27 relief at this stage of the proceedings. The statutory power conferred by the Oireachtas on the courts by this section was given to ensure that, in the public interest, there would be compliance with the planning code generally and with conditions attached to planning permissions in particular. Here there is an admitted breach by the defendant of some of the conditions attached to the permission (namely those relating to the need to obtain pre-development approval for certain of the works to be carried out) which cannot be remedied. The extent and seriousness
of this breach cannot be adequately assessed until the trial of the action. I think it is in the public interest (in the absence of special circumstances which do not here exist) that illegal developments should be halted until the court has had an opportunity to examine all the circumstances of the case to see whether there are any reasons why it should not permanently stop the development.
There is a public interest factor of a different kind involved in the application for relief arising under allegations of breach of the Act of 1972 and the Regulations of 1979. The court is here concerned with a code enacted in the interests of public safety. There is a controversy in this case as to whether the work the defendant is proposing to do will amount to an infringement of that code. But where a plaintiff has made out a case (as the plaintiff here has done) that there is a risk of at least some substance that the safety code relating to the storage of petroleum products may be infringed if the development is permitted to continue, the court should (unless there are special reasons for doing otherwise which do not here exist) halt the development until the matter can be fully investigated at the trial of the action.
I think, therefore, that the order made in November, 1989, under s. 27 of the Act of 1976 should be continued and that the order made in relation to breaches under the Act of 1972 and the Regulations of 1979 on the 19th December, 1989, should also be continued and that this latter order should be varied to prohibit until the trial of the action or until further order any development that would be in breach of the Act or the Regulations. I will reserve the question of costs.
Tony Furlong v A.F. & G.W. McConnell Ltd
, Campbell Caravans Co. Ltd and Ballybray Oil Distributors Ltd t/a Eastern Oil Distributors
1986 No. 77 MCA
High Court
3 October 1989
[1990] I.L.R.M. 48
(Gannon J)
GANNON J
delivered his judgment on 3 October 1989 saying: This application came before the court by way of motion grounded upon affidavit pursuant to s. 27(3) of the Local Government (Planning and Development) Act 1976 for relief under subs. (1) of that section. The applicant is the owner since 1979 and, since 1980 has been the occupier, of a dwellinghouse at ‘Ledville’, Ballycorus Road, Kilternan, County Dublin. His house is the northern boundary of a portion of a courtyard-type area comprising more or less rectangular shape of approximately 250 yards long and approximately 100 yards in width. The courtyard and surrounding buildings formerly comprised the smelting works and ancillary buildings in connection with a lead mine on higher ground to the south. At that time the house in which the applicant now lives and all the other buildings and yard area were occupied and used solely in connection with the business of the lead mines. The house occupied by the applicant had been the dwellinghouse of the manager of the lead works and has not been put to any use other than as a dwellinghouse. The lead mining business had ceased more than 60 years ago. The entire area comprising all the buildings and the courtyard are included in the Dublin development plan in the agricultural zone and are adjoining an area indicated on that plan as ‘high amenity zone’.
The applicant claims that the other buildings and former courtyard area are being put to uses constituting development of land for which permissions under Part IV of the Local Government (Planning and Development) Act 1963 are required and are being carried on without such permission and that such uses are unauthorised uses of land. The application is for an order under s. 27(1) of the 1976 Act prohibiting the continuance of the uses to which the land and other buildings are presently being put. The respondents, A.F. and G.W. McConnell Ltd are the owners of the land and buildings with respect to the use of which the applicant makes complaint. The other respondents are the occupiers under leases from McConnell’s and are the users of the land and buildings to which the applicant’s complaints relate. At the commencement of this application Mr Bradley for the respondents submitted that as the relief being sought is in the nature of a permanent prohibition by injunction evidence on affidavit is inadequate and inappropriate and he objected to any matter of hearsay being introduced. I was informed by Mr Budd for the applicant that the deponents by whom affidavits had been made were available and would give oral evidence. I ruled that the application would be determined upon the oral evidence to be adduced, that witnesses could be referred, if appropriate, to the contents of their affidavits.
Before referring to the evidence of facts upon which my decision must depend I think it helpful to refer to the statutory provisions which are pertinent, and with reference to which the relief sought may be given. S. 27(1) of the Local Government is as follows:
27
(1) Where —
(a) development of land, being development for which a permission is required under Part IV of the Principal Act, is being carried out without such a permission, or
(b) an unauthorised use is being made of land, the High Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order prohibit the continuance of the development or unauthorised use.
The expression ‘unauthorised use’ is defined in s. 2 of the 1963 Act as follows:
‘unauthorised use’ means, in relation to land, use commenced on or after the appointed day, the change in use being a material change and being development other than development the subject of a permission granted under s. 26 of this Act or exempted development;
The permission under s. 26 there referred to is the permission required to be obtained under the general obligation prescribed by s. 24 of the 1963 Act. S. 24(1) of that Act is as follows:
Subject to the provisions of this Act, permission shall be required under this Part of this Act —
(a) in respect of any development of land, being neither exempted development nor development commenced before the appointed day, and
(b) in the case of a structure which existed immediately before the appointed day and is on the commencement of that day an unauthorised structure, for the retention of the structure.
Subs. (2) prohibits the carrying out of any development for which permission is required save and in accordance with the permission, and subs. (3) makes it an offence so to do and prescribes the punishment for such offence. The 1963 Act contains at s. 3 a rather detailed definition of the word ‘development’. S. 3(1) reads ‘development’ in this Act means, save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land. Subs. (2) deals with ‘material change’ and prescribes as follows:
For the purposes of subs. (1) of this section and without prejudice to the generality thereof —
(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or
(b) where land becomes used for any of the following purposes:
(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or the sale of goods,
(ii) the storage of caravans or tents,
(iii) the deposit of bodies or other parts of vehicles, old metal, mining or industrial waste, builders’ waste, rubble or debris,
the use of the land shall be taken as having materially changed.
S. 3(3) deals with the material change of use of dwellings. S. 4 of the 1963 Act sets out in subs. (1) a list of work or use of land classified as exempted development. But in s. 4(2) the Act enables the Minister for Local Government by means of *52 regulations to prescribe, without further reference to the Oireachtas, other classes of work or uses of land to be designated as exempted development. S. 4(3) is as follows:
References in this Act to exempted development shall be construed as references to development which is —
(a) any of the developments specified in subs. (1) of this section, or
(b) development which, having regard to any regulations under subs. (2) of this section, is exempted development for the purposes of this Act.
By s. 1(3) the Minister for Local Government is given power to appoint a day to be the appointed day under the Act and the day so appointed is 1 October 1964. Part III of the 1963 Act which pertains to the function and duties of a planning authority in relation to the making, contents, review, variations and alterations and publication of a plan indicating development objectives for its area was not referred to on this hearing.
Having regard to the foregoing statutory provisions it appears to me that the applicant has undertaken the onus of establishing that the uses complained of had commenced after the appointed day and constituted a material change from the uses preceding that day and constituted development for which no permission had been granted pursuant to the 1963 Act as amended.
Because Mr Furlong, the applicant, first came to reside at the dwellinghouse, formerly the residence of the mine manager, more than 15 years after the appointed day he is at a considerable disadvantage in the presentation of evidence to support his application. He applies to the court more than six years after taking up residence for an order in the nature of an injunction to prohibit the respondents and each of them making any use of the property in the vicinity of his house which is a material change from the use to which it had been put prior to October 1964 and for which planning permission is required.
Understandably his evidence was concerned almost entirely with the discomfort and inconvenience felt or apprehended in his residence by reason of the nature of the businesses being carried on by the respondents since he went there to live. The injection moulding factory which the respondents A.F. and G.W. McConnell Ltd had in operation when he first went there was burnt down in a fire early in 1986. When he went there that factory was at the far end of the courtyard to the south at the rear of his house. A considerable portion of the 300 yard long courtyard area had become overgrown with small trees, shrubbery and undergrowth by 1979 and that open area was then being used partly for storing 30 foot long lengths of steel. Other portions of that open space were then in use for parking caravans. Since he went to live there a number of businesses have been carried on in the buildings formerly used by the lead mining company and in the courtyard area. Among those he mentioned were a man who used part of the old buildings for storing stationery, another who used part for car repairs, another for storing barrels, another for storing coal as a fuel distributor and a firm named Goody Roofing using part of the buildings formerly used by McConnell’s. Of these only Goody Roofing is still *53 there. Mr Furlong makes no complaint of any of these and none of them has been named as respondent. After his purchase of the house in 1979 Mr Furlong was working on it for a few months before he took up residence in 1980. His back garden of twenty feet by forty feet was fenced off from the overgrown courtyard area at the back in which he says ‘less than half a dozen caravans’ were parked. Because of the lengths of steel being stored the caravans were parked close to his fence. In order to get the caravans away from his fence he offered to buy from McConnell’s portion of the ground to extend his back garden but without success. In 1983 a mobile crane was brought in and the lengths of steel removed. Subsequently the area of small trees, shrubbery and scrub was cleared, and that area was levelled and stone chippings put down to form a hard surface. He complained without result to the planning authority about the removal of the trees in 1983. Since then the number of caravans being parked there has increased. In 1986 portion of the metalled area was put to use as a parking area and storage depot for distribution of hydrocarbon oils. In a more or less central position two metal storage tanks were fixed to the ground and surrounded by a concrete block wall 18 inches high above ground level. Close by a mobile tanker of 3,000 gallons capacity is parked and tankers come in and out daily between October and March for bulk storage and distribution of home heating oil.
The fire which destroyed McConnell’s factory premises at one side of the courtyard area appears to have made Mr Furlong particularly apprehensive about the risk of danger from the storage of hydrocarbon oils in the vicinity of his house. When pressed in cross-examination to explain his grounds for the application to the court he said:
My objection is to the storing of oil so close to my premises. I have no ground of objection to the paint store, but I have to the increase of use by caravans. I don’t know what use for caravans was being made before I went there. I was happy to see trees there but I am not happy to see caravans there.
He had stated in concluding his direct evidence by way of summary:
My objections — oil is dangerous; if not properly secured it could open and spill down to my house; a fire could be started maliciously: the caravans are devaluing my house.
He concluded his evidence on cross-examination by saying:
The entire area has become an area of various industrial uses under the umbrella of McConnells.
In support of Mr Furlong’s application evidence was given by Mr Peter Evans, architect, by Mr John Moylan, civil engineer, and by Mr Robin Goodbody, planning officer in Dublin County Council. Aerial and other photographs were put in evidence as exhibits which are helpful in relating the oral evidence to the geographical area and in the location of different aspects of use. However I do not adopt them as probative of facts relative to the issues for determination as to whether a use existed on the appointed day or has since been materially changed. Mr Evans visited the area in June 1986 and Mr Moylan did his survey in Febraury 1987. Mr Goodbody had access to records going back to 1949 when a film company got *54 special permission under the 1934 and 1939 Acts for film-making studios in the buildings formerly used by the the lead mining company. The evidence of these witnesses established that the entire site of the old lead mine works forms part of a zone of agriculture in the Dublin County development plan and is not distinguished in the plan from the surrounding agricultural areas. There were no applications for, nor grants of, permission for development for storage of caravans nor for bulk storage of diesel or other fuel oils or inflammable substances. They could not be described as businesses associated directly or indirectly with or ancillary in any way to agriculture. They are business uses which are separate from and independent of each other and of other businesses and could not be described as ancillary to any other existing development in the area. The present appearance of the area is of use generally of the nature of light industry. Mr Evans stated:
I see it as an open field situation which has a history of light industrial use, and on searching for planning permission found none.
The first record of complaints of use was in 1981 and a request for more information was inconclusive. No warning notices nor enforcement notices under the Planning Acts were ever served. But for the fact that this area is designated in the County Dublin development plan as an area of agricultural land the applicant could scarcely show prima facie grounds for an order as sought in the absence of evidence as to the uses thereof preceding 1 October 1964. The respondents however accept that the onus falls on them to establish that any use constituting a material change commenced after 1 October 1964, and, as a development, is an exempted development.
For the respondents Mr William Dick who lives in Kilternan and has studied archiveal material was able to give interesting and helpful information about the lead mine which opened in 1806 and its subsequent history. The applicant’s house was built in 1864, the smelter closed in 1913 or 1916, and the importation of materials had ceased by 1960. But he said the McConnell’s business came there in the early 1950’s, and in the 1960’s and 1970’s the area was ‘a nursery area for small industries — less noxious than the lead mining’. But his evidence was not specific in relation to the uses made of this area of land immediately prior to 1 October 1964. Mr George McConnell a director of the first-named respondent company is familiar with the uses of the entire property from 5 June 1958 when his company took an assignment from Farnworth Milling Company Ltd of their leasehold interest. His company acquired the property for the purpose of carrying on in the former mine works buildings the business of the manufacture, finishing and distribution of small wood products such as shoe heels and brush handles, and also the ancillary storage of materials such as wood raw materials, paints, cleaners, adhesives, plastics and some hydrocarbons. From the early 1960s a subsidiary company, International Coatings Ltd, manufactured and distributed to the retailers of the principal company paints and adhesives for use on the goods manufactured by the latter company. On 21 May 1962 his company granted a lease to Ballerina Coach Works Ltd of the former mill and a large area of open ground which had previously been occupied *55 by the last mentioned company under licence from about 1960. The Ballerina Coach Works Ltd manufactured caravans and stored them for distribution and retail sale. For the purpose of their business that company occupied not only the former mill but also most of the open space area. That lease was surrendered at the end of August 1962 when a company engaged in the manufacture of glassware took over the property previously leased to Ballerina Coach Works Ltd. On 14 April 1967 that property was assigned to Springmount Caravans Ltd whose business was the sale, distribution, parking and storage of caravans. Springmount Caravans Ltd assigned its interest to Shannon Caravans Ltd on 22 September 1969 and that company surrendered its interest to McConnell’s in April 1972. According to Mr McConnell during the entire period from the grant of the lease in May 1962 until its surrender in April 1972 caravans were parked and stored in greater or lesser numbers from time to time on the open space at the rear of the applicant’s house even during the period when the glass manufacturing business was being carried on. During the period when Springmount Caravans Ltd held the leasehold property Mr Frank Campbell trading as Campbell Caravans had permission by verbal agreement to use portion of the McConnell property for the parking, storing and hiring of caravans. He has been carrying on that business there continuously since 1968. There were always more caravans parked there in the winter months or off-season than during summer months. Mr Frank Campbell said he started storing caravans and letting them for hire from this site in 1968, but at that time did not have more than five or six on the site. By 1979 he had up to 35 caravans of which nine or ten would be there and the rest out on sites during the months of September and October. It was originally an overgrown site which he cleared and levelled off and got in lorry loads of surfacing materials. They have no one living in these caravans and presently in the off-season there would be up to 35 or 38 parked there.
The evidence on behalf of Ballybray Oil Distributors Ltd trading as Eastern Oil Distributors was given by William O’Callaghan who is the manager. He said they had a lease for two years and nine months from McConnells which they took in October 1985 in respect of an open space area which they required as a bulk store for storage and distribution of Maxol products. Between the end of October and the end of March they would have one tanker per day in and one tanker per day out on average. Between March and October their business involved the distribution of lubricants by small van about twice a day. Their fuel depot is a separate and a distinct business from any others carried on at the location, and in addition to the compound which is fenced they have offices in the old buildings. When they came there the site they took was an open space with no structures on it. They erected a bonded concrete block wall 18 inches high as a precaution against leakages and an eight foot high fence and they keep the place securely locked. Mr Howard McConnell has been involved full time in the management of the entire site since 1982 and is regularly in consultation with the fire officer.
He ensures exact compliance with the regulations for fire safety and keeps technical data sheets up to date. Mr David Semple, civil engineer, described the area as an industrial complex with a variety of tenants in various units, kept neat *56 and tidy. He tested the bonded wall surrounding the fuel storage tanks and found it sound. He said that although the area is within that zoned for agricultural use in the county development plan he would describe it as ‘a nursery for firms down market to expand onto other premises.’
Mr Budd for the applicant argued that the respondent McConnell Ltd as owners since 1958 of the entire light industrial area by sub-dividing it subsequent to 1964 into individual smaller units created a change of user which constituted a development for which planning permission is required and which has not been obtained. He submitted that the present use by the caravan company is an intensification of a pre-1964 use which had in fact ceased to the extent of having been abandoned. In relation to the use being made by the oil distribution company he submitted that the clearing and paving on the ground and the installation of containers and vehicles for storage of oil for distribution was a development entirely different from any use proceeding 1 October 1964 and is not an exempted development. He accepted that the onus of establishing that the user complained of is such that planning permission is required and has not been obtained falls upon the applicant. But he argues that insofar as a respondent opposing the application relies upon the provisions for exempted development the onus of establishing exemption lies upon that respondent. He submitted that although the use of part of the property for storage and distribution of fuel oil can be described as a type of industrial use it does not correspond in any way with any uses to which any part of the property had been put prior to the appointed day. He argued that the owners of the entire property comprised in the lease cannot avoid their obligation to conform to the statutory planning controls by sub-leasing and thus parting with the use in parts of the property which was under their control as to its user in its entirety at the time of the appointed day.
For the respondents Mr Bradley submitted that there was clear evidence that notwithstanding the zoning in the county development plan this particular area including the applicant’s residence had a long unbroken history of use as an industrial area. He argued that incidental changes in the type of industry insofar as such changes did not involve carrying out any works did not constitute a change which could fall within the definitions of ‘use’ and of ‘unauthorised use’. He pointed out that the extension contained in s. 3 sub-para. (2) of the 1963 Act of the definition of ‘development’ gave emphasis to the materiality of the change contemplated in the definition of ‘unauthorised use’. He argued that whatever change of use which had taken place came within the ambit of exempted development falling within Class II of the Third Schedule of the Regulations made by the Minister in exercise of the powers conferred on him by s. 4(2). He accepted that in respect of the claim that a change of user constituted an exempted development the onus of presenting sufficient evidence lay upon the respondent. He relied in particular on Regulations 9, 11 and 12 of the Regulations in SI 65 of 1977 which superceded the provisions of SI 236 of 1964. He submitted that the evidence established the use for the manufacture and storage of caravans was a pre-1964 use of the land and that the storage and sale of hydrocarbons was an *57 exempted development.
I am satisfied that the evidence offered in relation to pre-1964 use is sufficient to establish a use before the appointed day of portions of the site for the manufacture and storage of caravans. But I have not heard evidence which enables me to form any opinion as to whether, by comparison, the use presently being made for caravan accommodation is an excessive use or one so different from that previous to October 1964 as to affect the character, in terms of planning and development, of the land to which it relates. Having regard to the wording of the statute it seems to me to be immaterial whether the person who makes use of the land is an individual or a company, or a succession of one or the other of them, nor whether such person is a person having an interest in the land as owner or occupier or licensee. It is the use, by whomsoever, that is the subject of control. The nature of the interest in the land of the user is not necessarily a factor in determining whether a particular class of user was abandoned or not. Having regard to the evidence of Mr Frank McConnell I could not infer that the use for parking of caravans was ever abandoned.
But in relation to the use of the premises by Maxol for the storage and distribution of fuel oils I have no doubt that this is a use which could not fall within exemption regulations nor correspond to any use which had been carried on prior to 1 October 1964. In respect of that use as described in the evidence it appears to me that there is an unauthorised use being made of part of the lands which can be prohibited by a restraining order of this Court under s. 27(1) of the Local Government (Planning and Development) Act 1976. But I do not think that it follows that such an order under s. 27(1) must be made forthwith as a matter of course. The purpose of that section is essentially a matter of assisting and enforcing the proper use and development of lands in accordance with planning objectives and regulation of the relevant planning authority. These considerations are somewhat different from those to which the court would have regard in an action inter partes founded upon nuisance. It is not the function of the court on this application to determine what would be good planning for the environment in which the applicant lives. That is a function for the Dublin County Council as the relevant planning authority. It appears to me from the evidence I have heard that that matter may not have come before the relevant planning authority in a manner in which it could have had regard to all relevant planning factors. I say this having in mind the historical use of this particular portion of land which must have been of general public knowledge. As I indicated at the outset I am surprised that this particular area was zoned, without being distinguished, as agricultural land. The evidence shows that the house, of which the applicant is now the occupier, was originally sited and built as an adjunct to an industrial operation, and was occupied and used by the mine manager for the purpose of his employment and the more convenient carrying out of his duties of managing the lead mine. The change of use of this house is at least as significant a change of user as the other uses of the other buildings which originally constituted the mining buildings. This house and the other buildings formerly constructed and used by the mining company were not occupied *58 in relation to any agricultural purpose at the time when this area was first being zoned for the purposes of the draft development plan.
The applicant comes before this Court with a claim to invoke the assistance of the court to enforce compliance with planning legislation. In my opinion the evidence he has brought before the court does not enable this Court to make any order under s. 27 directing McConnells to do or refrain from doing anything. Such participation on the part of McConnells as has been presented in evidence does not, in my opinion, constitute a ‘development’ as that word is defined in s. 3 of the 1963 Act. The activities of Campbells Caravans do come within that definition, but I do not think the evidence offered on behalf of the applicant is sufficiently clear to enable me to determine that it is a development in respect of which under s. 24(1)(a) of the 1963 Act a permission is required. On the other hand I am satisfied that the activities of Ballybray Oil Distributors Ltd is such a development and these respondents have failed to come within the exemption provisions and regulations. Because Ballybray Oil Distributors Ltd are making an unauthorised user of the portion of land in their occupation I must make an order pursuant to s. 27(1)(b) prohibiting the continuance by them of any use being a development ‘for which permission is required under Part IV of the principal Act’. But by reason of the late arrival of the applicant to the adjoining land and the long continued user by these respondents without objection I will make an order of a nature like to that made by Finlay P (as he then was) in Dublin Corporation v Garland [1982] ILRM 104. What I have in mind is to make the order of prohibition under the section but stay execution thereof for a suitable period for the parties including the planning authority to reconsider the planning factors in relation to this area. I propose therefore to defer the execution of the order until 1 October 1990. I will refuse the application for orders directed to McConnells and to Campbells Caravans.
Dublin Corporation v McGowan
[1993] 1 I.R. 405
In the matter of the Local Government (Planning and Development) Acts, 1963-1990. The Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin, Applicants v. Thomas McGowan and Mary McGowan, Respondents
[1992 No. 25 M.C.A.]
High Court 5th November 1992Keane J.
5th November 1992
This is an application for an order under s. 27 of the Local Government (Planning and Development) Act, 1976, as substituted by s. 19, sub-s. 4 (g) of the Local Government (Planning and Development) Act, 1992. I am satisfied that it is not a case in which the order sought should be granted.
The premises consist of a house at 134, Leinster Road in Dublin and were the subject matter of a planning permission granted on the 6th November, 1979. The planning permission in question was for the erection of a mews house at the rear of the premises. One of the conditions of the planning permission was that the existing house on the site, that is, 134, Leinster Road, should be maintained in a maximum of three residential units as existing.
The premises were bought on the 6th November, 1988, by the present respondents. At the time they bought the premises the first respondent made enquiries as to whether there was any planning permission affecting the premises. He telephoned the applicants’ planning department and was told that there was no planning permission affecting the premises. He then went to the planning office and was shown a card, a part of the index to the register, which indicated to him that there was no planning permission affecting the premises.
I am satisfied that the first respondent was mistaken, albeit bona fidemistaken, in coming to that conclusion in the sense that there was in existence a planning permission affecting the premises. I am also satisfied that he was mistaken in thinking that the index to the register did not indicate that there was any planning permission in existence affecting the premises because I accept entirely the evidence given in relation to the planning register by the Corporation official about the manner in which the index is maintained. I am satisfied that what happened was that the first respondent was shown the card by a clerk at the desk and mistakenly assumed that there was nothing on it to indicate the existence of a planning permission. The evidence is that the register is not compiled in such a way that there is a card in existence relating to every single premises in Dublin. Similarly, there would not be in existence a card relating to every house in Leinster Road. I have no doubt that the first respondent was shown the card relating to 134, Leinster Road and that, because he was not acquainted with the way in which the register is maintained, he mistakenly came to the conclusion that there was no planning permission recorded, whereas there was, in fact, a planning permission in existence in relation to the premises. The register disclosed the relevant planning permission containing the condition in question.
There was exhibited in the affidavits the search by law searchers which also indicated that there was no planning permission affecting the premises. That search also produced an inaccurate result because there was a planning permission in existence and there was a condition in it affecting the premises at 134, Leinster Road. As the person who conducted that search has not been called to give evidence, there is no evidence as to how the mistaken conclusion was arrived at. The evidence shows that the register was properly maintained and that a search should have brought to light the existence of the planning permission containing this condition.
Having said all that, however, it is perfectly clear (and conceded by Mr. Macken on behalf of the applicant) that the first respondent was behaving in a bona fide fashion. To keep himself on the right side of the law the first respondent made inquiries, but it would have been better if somebody with more experience of the planning register had conducted the initial inquiries on his behalf. However, it is certainly the case that the first respondent did not go ahead with what he intended doing with the premises without first attempting to check the planning position. In the circumstances I am satisfied that he acted in good faith in the matter.
When the first respondent bought the premises they were already divided into seven residential units. These units appear to have been bedsitters or flatlets, or, more grandiosely, studio flats. The architect and the builder who inspected the premises on the first respondent’s behalf said that what the first respondent did was upgrade these seven units, that is, make them more self-contained and make the units more attractive to potential tenants, and generally to repair the premises. It was those activitiesthe conversion of the house and the upgrading and improving of the existing unitswhich drew the attention of local residents to the matter. Ultimately the planning authority came into it and hence this application.
The application was brought under s. 27 of the Act of 1976, as substituted by the Act of 1992. The planning authority in the first instance rely on s. 27, sub-s. 1 which provides, inter alia, that where an unauthorised use is being made of land, the High Court may by order”require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate . . . that the development or unauthorised use is not continued . . .” An “unauthorised use” is defined in the Principal Act of 1963 as a use which commenced after the operative day of the Act, which was the 1st October, 1964, and which was a use for which permission was not granted or which was not an exempted development. The onus is, of course, on the applicants to establish that such an unauthorised use is being made of the premises as of this time.
Now, these premises were obviously in existence on the 1st October, 1964, and long prior to that, and they were premises of a type and in an area which not infrequently at that time were used for bedsitters. At the time the respondents bought the premises they were furnished with a statutory declaration by the previous owners that they had been let in seven units at the operative date. That is not evidence on which the court can act because it is hearsay evidence. The author of the statutory declaration has not been here to be cross-examined. The onus, of course, remains on the planning authority to prove that, as of the operative date and thereafter, the premises were not used for seven units. The only direct evidence in relation to that is the affidavit evidence of the builder and the direct evidence of the architect, who indicated that the premises were divided into seven units at the time of the purchase by the respondents and that it appeared from the physical state of the building that that state of affairs had not been recently brought into being and that it had been converted some years before. How many years, no one could say with any real confidence.
The only evidence which might suggest that the premises were either maintained as a single dwelling or in three units at the most is the planning permission itself. Of couse, the condition in the planning permission itself says that the house is to be maintained in a maximum of three units as existing, but that reflects no more than the belief of the planning authority that the premises were at that time divided into three units. The application for planning permission indicated that it was so divided but the person who made that application has not been present in court to give evidence. And if there was any inspection by the applicants of the house at that time, there has been no evidence of any such inspection, and I do not know what it would reveal, if anything.
Obviously that evidence is wholly unsatisfactory so far as indicating what the position was in 1979 or prior thereto. It would, of course, be consistent with a state of affairs in which the premises were originally in seven units in 1964 and prior thereto and those units may have been consolidated into three units at the date of the application for planning permission in 1978. Whether that state of affairs would have represented an abandonment of the non-conforming use, which may have existed in October, 1964, is a matter for surmise and speculation.
I should make it clear that I am simply dealing with the application brought by the planning authority against the two respondents. Of course, if the applicant for planning permission in 1978 was brought to court and if the granting of that planning permission by the Corporation was on the basis that he was not using the premises in breach of the planning permission for seven units, it might not lie in his mouth to say that it was a nonconforming use in October, 1964. However, I am not making any finding in relation to that matter as it would not be right to do so. It is sufficient to say that the evidence is wholly insufficient to establish that there was an unauthorised use of the premises within the meaning of s. 27, sub-s. 1 of the Act of 1976.
In the alternative the planning authority rely on s. 27, sub-s. 2, which provides:
“Where any development authorised by a permission granted under Part IV of the Principal Act has been commenced but has not been, or is not being, carried out in conformity with the permission because of non-compliance with the requirements of a condition attached to the permission or for any other reason, the High Court may, on the application of a planning authority or any other person, whether or not that person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case maybe, anything which the Court considers necessary to ensure that the development is carried out in conformity with the permission.”
It is quite clear what this sub-section and the previous sub-section were intended to deal with, and to make sense of what the legislature was providing for, they are to be read together. One can have a situation in which a development goes ahead without any planning permission at all. In that event, the planning authority would have an expeditious remedy to stop the development before the work got to a stage which was going to be difficult and expensive to undo. Similarly, sub-s. 2 enables the court to order a developer not to leave a development unfinished. Again, it is a summary and expeditious means to ensure that a development is completed.
In this case the development was completed a number of years ago. There is no suggestion that the building of the mews house to the rear of the premises was not completed to the entire satisfaction of the planning authority. Therefore, this section is entirely inappropriate, particularly when it is borne in mind that the condition attached to the planning permission did not require the developer to do anything; he was simply required not to interfere with an existing state of affairs. Planning permission was granted on the assumption of three units, not the division into seven units, which the present owner has been required to change to three units. The condition attached to the planning permission envisaged an existing building in three units and s. 27, sub-s. 2 is therefore wholly inappropriate to this situation. In any event, I would respectfully adopt the approach of Gannon J. in Dublin County Council v. Browne and Others (Unreported, High Court, Gannon J., 6th October, 1987) that this section was not intended to enable the planning authority to secure a partial completion of a development. It is intended to ensure that a development is completed in accordance with the planning permission and does not apply to the present situation. Nor, indeed, as Gannon J. pointed out in Dublin County Council v. Kirby [1985] I.L.R.M. 325, should this section be operated in the way it often is. It is intended as a “fire brigade” section to deal with an urgent situation requiring immediate action to stop clear breaches of the Act.
Apart from those considerations, I would consider it unjust and inequitable that an order should be made in circumstances such as then present where, if anybody is to blame, it is the person who misled the planning authority at the stage of the application for planning permission or who thereafter simply converted the house into seven units in defiance of the planning permission. It is not necessary to express any view as to what happened in relation to that matter as I have no evidence in relation to it. In any event, the then owner of the premises and the applicant for planning permission is not a party to these proceedings. It would be manifestly unjust to have the draconian machinery of the section brought into force against a person who behaved in good faith throughout.
In refusing the application, the court is not conferring any benediction on the present use of the premises. The extent to which the use of the premises conforms with the planning law is a matter for the respondents to consider. I conclude on this application that the planning authority have not satisfied me that it is a case in which the court should make the order sought under s. 27, sub-s. 2 of the Act of 1976. On that basis alone I am refusing the present application.
Dublin Corporation v Regan Advertising and Others
[1989] I.R. 61
The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin Applicant v. Regan Advertising Limited and John Cullen and Sons Limited Respondents
[1985 No. 69 MCA]
Supreme Court 15th December 1988
Finlay C.J.
15th December 1988
I agree with the judgment which is about to be delivered by Griffin J.
Griffin J.
At number 10, York Road, in the city of Dublin (adjacent to the toll kiosk for the East-Link bridge) on the south side of the river Liffey there has for very many years been a large industrial building. This building is two storeys high, and the facade or front elevation is approximately seventy feet wide. The height of the building is not stated in the documents before the Court, but from the photographs exhibited in the affidavits it would appear to be approximately twenty-five feet. For upwards of 40 years prior to 1983, the premises were owned and occupied by William P. Ryan Ltd. (“Ryans”) who carried on a motor body building business therein. In the year 1954, Ryans engaged a professional sign writer to paint a sign or notice on the upper portion of the facade. This consisted of the words”William P. Ryan Limited” in large coloured scripted letters across the width of the facade with the exception of approximately four feet at either end, and under-neath
[1989]
1 I.R. Corporation of Dublin v. Regan Advertising Ltd.
Griffin J. 64
S.C.
that lettering the words “Commercial Body Builders and Engineers” in black capital printed letters. Repainting took place in 1972 but there was no alteration in the words or lettering.
In 1983 Ryans sold the premises to the second respondents John Cullen and Sons Limited (“Cullens”), who have since carried on their business of stonecutters and exporters therein. At some date prior to September, 1984, Cullens made what is presumably a commercial business arrangement with Regan Advertising Limited (“Regans”) permitting the latter to exhibit commercial advertisements on the facade. In or about the month of September, 1984, Regans erected three wooden framed structures on the upper portion of the facade, each being twenty feet wide by ten feet high, and exhibited commercial advertisements on them. There were frequent changes of the advertising material exhibited. Neither Regans nor Cullens applied for planning permission for the erection of the structures or for the exhibition of advertisements. Regans maintained that planning permission was unnecessary by reason of the sign which Ryans had painted on the premises, and which was on the facade at the date of the passing of the Local Government (Planning and Development) Act, 1963 (“the Act of 1963”).
Those frameworks were clearly “advertisement structures” as defined by s. 2, sub-s. 1 of the Act of 1963. When they came to the attention of the planning department of Dublin Corporation, discussions and correspondence took place between the officials of the latter and Regans. On the 12th December, 1984, Regans applied to the Corporation for planning permission for the structures, whilst maintaining that such permission was not necessary. This application was, however, withdrawn by them on the 31st January, 1985. The framework structures were subsequently removed by Regans, and advertising posters covering the same area (sixty feet by ten feet) were pasted directly on the front wall of the premises. On the 4th April, 1985, when one of the inspectors of the planning section of the Corporation visited the premises, three such posters each twenty feet by ten feet were affixed by pasting to the wall. At some time between August, 1985, and March, 1986, two further signs, each five feet seven inches by seven feet nine inches approximately, were painted on the side panels or doors at each end of the lower portion of the facade. These bore Cullens’ name and stated the activities carried on by them on the premises.
In their discussions and correspondence with Regans, the Corporation at all times maintained that the exhibition of the advertisements on the premises was an unauthorised use of the premises within the meaning of the Act of 1963.
By s. 2, sub-s. 1 of that Act “unauthorised use” is defined as meaning, in relation to land, use commenced on or after the appointed day (1st October, 1964), the change in use being a material change and being development other than development the subject of a permission granted under s. 26 of the Act or exempted development.
“Development” is defined in s. 3, sub-s. 1 and the provisions relevant to this case are as follows:
[1989]
1 I.R. Corporation of Dublin v. Regan Advertising Ltd.
Griffin J. 65
S.C.
“(1) Development in this Act means, save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land.
(2) For the purposes of subsection (1) of this section and without prejudice to the generality thereof
(a) where any structure or other land . . . becomes used for the exhibition of advertisements, . . . the use of the land shall be taken as having materially changed.”
“Advertisement” is defined in s. 2, sub-s. 1 as meaning:
“any word, letter, model, balloon, kite, poster, notice, device or representation employed for the purpose of advertisement, announcement, or direction.”
Under s. 27, sub-s. 1 of the Local Government (Planning and Development) Act, 1976, where an unauthorised use is being made of land, the High Court may, on the application (inter alia) of a planning authority, by order prohibit the continuance of the unauthorised use. The Corporation applied to the High Court for such an order, and the application was heard by Blayney J., who, in a reserved judgment, held that, in the circumstances of this case, the exhibition of the advertisements by Regans on the facade of the premises constituted a material change in the use of the premises and was an unauthorised use thereof. He made an order prohibiting Regans and Cullens from continuing the unauthorised use of the wall for the exhibition of advertisements affixed thereto.
From that decision, Regans and Cullens have appealed to this Court. On behalf of both respondents it was submitted that what was caused to be painted by Regans on the facade in 1954 was a “notice” and was therefore an “advertisement”within the meaning of the definition in s. 2, sub-s. 1 of the Act of 1963; that a change of use took place at the time when the notice was painted on the wall and that Regans and Cullens were in consequence now entitled to exhibit any advertisement on the facade without obtaining planning permission, and that any such advertisement could not, therefore, be an unauthorised use under s. 2, sub-section 1. In addition, this Court was referred to s. 5, sub-s. 1 of the Act of 1963, which, as amended, provides that if any question arises as to what in any particular case is or is not development, the question should be referred to and decided by an Bord Pleanála. Counsel for the respondents invited this Court to refer the question in issue in this appeal to an Bord Pleanála for decision by it, and to adjourn the further hearing of this appeal until that decision is given.
I propose to deal with the latter matter first. As stated earlier in this judgment, Regans applied for planning permission on the 12th December, 1984 just four years ago. If that application had not been withdrawn on the 31st January, 1985, the Corporation would have been obliged to make a decision on the application and to give notice of their decision to Regans within a period of two months. If dissatisfied with that decision, Regans had a right of appeal to an Bord Pleanála, from whom they could have had a binding decision more than three years ago. If s. 5, sub-s. 1 be availed of, s. 5, sub-s. 2 gives a right of appeal to the High Court from a decision under s. 5, sub-s. 1 within three months, and a further right of appeal from the decision of the High Court lies to this Court. If, therefore, this Court now referred the proposed question to an Bord Pleanála it would be very many months, if not years, before the appeal procedures would be exhausted and this Court would then be in the same position as it is now and nothing whatever would be gained except substantial and unwarranted delay. There is in my view no reality whatever in taking that course and I have no hesitation in rejecting it.
As the learned trial judge stated in his judgment, the sole issue in this case is whether the current use being made of the facade by Regans is such that there has been a material change in the use of the facade. In any particular case, the question of whether there has been a material change in use must be one of degree. For the purpose of determining that question, it is necessary to compare the nature of the use of the premises by Ryans between 1954 and 1983 with the use thereof by Regans since 1984. This the learned trial judge did, and in relation to the occupation and use of the premises by Ryans and Regans respectively, he said in Corporation of Dublin v. Regan Advertising Ltd. [1986] I.R. 171 at p. 175:
“The original use consisted in using the facade of the premises to display the name of the company which owned the premises and a brief description of the type of business carried on by the company. It seems to me that a correct description of the use would be that the company which owned the premises was using the facade to inform passers-by of its identity and of the nature of the activity which it carried on in the premises. It was a use which had a close connection with the premises, with their owner, and with the activities being carried on in the premises.
The current use consists in using the facade for the display of commercial advertisements advertising the goods or services of a variety of businesses. The goods or services advertised have no connection with the business being carried on by Messrs. Cullens in the premises. They are the goods or services of Messrs. Regans’ clients. Use of the facade for these advertisements is in the nature of a new and separate business being carried on by Messrs. Regans, with the consent of Messrs. Cullens, and for which obviously the latter are being paid. The business is to give publicity to the goods and services referred to in the advertisement.”
I am in complete agreement with that analysis which in my view is a full and correct one.
The only business carried on by Ryans in the premises was their body building and engineering business. The words painted on the wall were a notice incidental to or ancillary to that business, and did not have any distinct or separate use apart from that business. Similar notices are a familiar sight on the gable ends of licensed premises, butcher shops, and other business premises in every town and village in the country. If such a notice on, say, a butcher shop was removed and replaced by a large commercial poster extolling the values of a particular brand of petrol, or model of motor car, could it be said that this would not be a material change in the use of the premises in which the butcher shop was being carried on?
[1989]
1 I.R. Corporation of Dublin v. Regan Advertising Ltd.
Griffin J.; Hederman J. 67
S.C.
In the instant case there are now pasted on the wall in question posters totalling 600 square feet in area advertising the goods and services of firms which have no connection whatsoever with Cullens, who occupy the premises, or with the business being carried on by them on their premises. The learned trial judge had no doubt that this amounted to a change in the use of the premises and that the change was a material one, and that in consequence the use of the premises for such purposes was an unauthorised use. I entirely agree with that view. I do not accept that, because the notice painted on the wall by Ryans comes within the definition of “advertisement” in s. 2, sub-s. 1 of the Act of 1963, Regans are now entitled to use the wall for every purpose included in that definition of advertisement without such use amounting to a change of use. As the learned trial judge pointed out in his judgment, the definition of advertisement is extremely wide. It includes such activities as affixing to the premises a balloon or kite exhibiting advertising material, and no reasonable construction of the relevant provisions of the Act of 1963 would justify a conclusion that such activities would not clearly be a material change of use.
I would uphold the finding of the learned trial judge that the use of the wall of the premises for the purpose of commercial advertising is a material change in the use of the premises, and, as such, is an unauthorised use of the premises by the respondents, and would accordingly affirm the order of the High Court and dismiss this appeal.
Hederman J.
I agree.
Fingal County Council v. RFS Ltd.
[2000] IEHC 163 (6th February, 2000)
High Court
Fingal County Council v RFS Limited
1999/59 MCA
6 February 2000
MORRIS P: This matter comes before the Court as an application under Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19 of the Local Government (Planning and Development) Act 1992.
When the proceedings were commenced the title was “Fyffes Group plc, RFS Limited and Sean Blackbourne.” However by Order of the 12 July 1999 it was ordered that the motion against Fyffes Group plc, the first named Defendant be struck out and that Kinsealy Farms Limited be joined as a Respondent. This Order was necessary because it became apparent that the lands were transferred by Fyffes Group plc to Kinsealy Farms Limited, who became registered as owners of the lands, on the 2 February 1982.
The property, to which this Application relates, is a site with a large warehouse thereon situate at Kinsealy Lane, Kinsealy, in the County of Dublin. The lands are registered on Folio 29904F of the Register County of Dublin.
The Order which the Applicants seek is an Order under Section 27 restraining Kinsealy Farms Limited from the carrying on of an unauthorised development on the premises “for the storage and warehousing and use of the premises for office use.” They seek secondly an Order directing the Respondents to cease the unauthorised development of the site and to remove the portacabins and office units, it is unnecessary for the Court to consider this relief since Counsel on behalf of the Party responsible for maintaining the portacabins on site has given an undertaking on behalf of his client to remove the portacabins forthwith. I have no reason to believe that this undertaking has not been complied with.
In essence therefore the complaint which is made against Kinsealy Farms Limited is that described in paragraph 7 of Mr Joseph Gorman’s first Affidafit when he says that on the 15 February 1999 when he visited the premises (apart from the second hand cars which are no longer part of this case and the portacabins) he noticed the unauthorised use of the sheds for the storage of timber, cardboard, polyfilla, some machinery parts and the storage of potatoes.
In his further supplemental Affidavit of the 8 December 1999 Mr Joseph Gorman describes, with photographs, the use to which the premises is now being put. This could be best described as the warehousing of dry goods. This in reality is the use which the Fingal Council now seek to prevent.
The Planning history of the premises is as follows: a planning permission was granted in respect of the site under planning reference 87A/8 862. This permission was granted for the use of the large storage shed on the site to be used as a chill room and food processing unit. Eleven other planning applications have been made in respect of the premises. It is claimed by Mr Robert Knox, Property Manager for Kinsealy Farms that the relevant history of the lands extends to a time prior to the 1 October 1964 when the site was developed by Archers Limited for carrying on a business of the preparation for sale, packaging and distribution of fruit and vegetables. Subsequently Archers Limited sold the lands to Fyffes Group plc who in turn sold them to Kinsealy Farms Limited.
The use that was made of the lands and the buildings thereon is described by Mr Knox in the following terms. He says that both Messrs Archers and Kinsealy Farms Limited brought fruit and vegetables on to the site sourced both from the immediate area of the site in North County Dublin and the surrounding area and imported from abroad. It is said that these goods were transported on to the site in articulated lorries and heavy rigid vehicles. These brought the bulk product to the site and there in the premises the product was repackaged for local deliveries. It is submitted that this use was made of the lands since prior to the coming into operation of the Planning Acts on the 1 October 1964 up until 1994 without interruption. On the 8 September 1994 the site was leased to Laurence Flood and a term of the lease provided that the premises were not to be used for any other purpose “other than as a warehouse for the storage of cardboard boxes, printing papers, labels, flour, starch, gelatine, dehydrated peas and beans and tinned fruit and for no other purpose whatsoever without the written consent of the Landlord.” The Lessees vacated this site in November 1997 and Kinsealy Farms recommenced using the property until it was leased to the second named Respondent, Sean Blackbourne and William Greene. The activity of storing imported Japanese cars and the maintenance of portacabins on site is the responsibility of the Lessee of the premises.
An examination of the relevant planning permissions in respect of the lands was carried out by Mr John D O’Keeffe, an Architect and he refers to planning permission reference number 87A/8862 which he says granted permission for use of the large storage shed on the site for use as a chill room and food processing unit. He says apart from that there have been eleven planning applications made in respect of the premises since the 1 October 1964 and he says that the premises have been used as a major warehousing and distribution facility since 1987. In particular he refers to an inspection which he carried out on the 18 December 1998 and he says the visual appearance of the premises and his schedule of accommodation is consistent with the use of the premises and yard for the purpose of storage and packaging and distribution since October 1, 1964.
I believe that there are a variety of issues of a factual nature which remain to be resolved in this matter before an Order granting the reliefs visualised in Section 27 should be considered. I am of the view that an issue relating to whether or not a pre statute established user has been established and if so exactly what this use is. I am satisfied that an issue arises as to when the development or unauthorised use commenced, so as to make relevant the five year limitation period within which Section 27 proceedings can be invoked. I am satisfied that given that the onus of proof rests on the Applicants of establishing facts from which the Court could raise a probable inference that the premises had been used at and immediately prior to the 1 October 1964 otherwise than in the manner now described that they have failed to discharged this onus. I do not propose in these circumstances to make the Order sought.
Accordingly it falls to consider the Order that should be made.
I am satisfied that it was entirely reasonable for the Applicants to institute proceedings under Section 27 for the purpose of preventing the use of the premises as a site for portacabins. In this regard it appears to me that the costs, of bringing the proceedings up to and including the first day of the hearing of this matter should be borne by Mr Sean Blackbourne. Those costs being the costs of the Applicant.
Insofar as the costs of Kinsealy Farms Limited are concerned I am of the view that they have been less than co-operative with the Applicants in ensuring that the unauthorised use (as a site for the portacabins) was abated. I am satisfied that the appropriate way in which to deal with this situation is to make no Order as to costs as between the Applicant and Kinsealy Farms Limited. Fingal County Council v RFS Limited
High Court
1999/59 MCA (Transcript)
HEARING-DATES: 6 February 2000
6 February 2000
PANEL: Morris P
JUDGMENTS:
MORRIS P: This matter comes before the Court as an application under Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19 of the Local Government (Planning and Development) Act 1992.
When the proceedings were commenced the title was “Fyffes Group plc, RFS Limited and Sean Blackbourne.” However by Order of the 12 July 1999 it was ordered that the motion against Fyffes Group plc, the first named Defendant be struck out and that Kinsealy Farms Limited be joined as a Respondent. This Order was necessary because it became apparent that the lands were transferred by Fyffes Group plc to Kinsealy Farms Limited, who became registered as owners of the lands, on the 2 February 1982.
The property, to which this Application relates, is a site with a large warehouse thereon situate at Kinsealy Lane, Kinsealy, in the County of Dublin. The lands are registered on Folio 29904F of the Register County of Dublin.
The Order which the Applicants seek is an Order under Section 27 restraining Kinsealy Farms Limited from the carrying on of an unauthorised development on the premises “for the storage and warehousing and use of the premises for office use.” They seek secondly an Order directing the Respondents to cease the unauthorised development of the site and to remove the portacabins and office units, it is unnecessary for the Court to consider this relief since Counsel on behalf of the Party responsible for maintaining the portacabins on site has given an undertaking on behalf of his client to remove the portacabins forthwith. I have no reason to believe that this undertaking has not been complied with.
In essence therefore the complaint which is made against Kinsealy Farms Limited is that described in paragraph 7 of Mr Joseph Gorman’s first Affidafit when he says that on the 15 February 1999 when he visited the premises (apart from the second hand cars which are no longer part of this case and the portacabins) he noticed the unauthorised use of the sheds for the storage of timber, cardboard, polyfilla, some machinery parts and the storage of potatoes.
In his further supplemental Affidavit of the 8 December 1999 Mr Joseph Gorman describes, with photographs, the use to which the premises is now being put. This could be best described as the warehousing of dry goods. This in reality is the use which the Fingal Council now seek to prevent.
The Planning history of the premises is as follows: a planning permission was granted in respect of the site under planning reference 87A/8 862. This permission was granted for the use of the large storage shed on the site to be used as a chill room and food processing unit. Eleven other planning applications have been made in respect of the premises. It is claimed by Mr Robert Knox, Property Manager for Kinsealy Farms that the relevant history of the lands extends to a time prior to the 1 October 1964 when the site was developed by Archers Limited for carrying on a business of the preparation for sale, packaging and distribution of fruit and vegetables. Subsequently Archers Limited sold the lands to Fyffes Group plc who in turn sold them to Kinsealy Farms Limited.
The use that was made of the lands and the buildings thereon is described by Mr Knox in the following terms. He says that both Messrs Archers and Kinsealy Farms Limited brought fruit and vegetables on to the site sourced both from the immediate area of the site in North County Dublin and the surrounding area and imported from abroad. It is said that these goods were transported on to the site in articulated lorries and heavy rigid vehicles. These brought the bulk product to the site and there in the premises the product was repackaged for local deliveries. It is submitted that this use was made of the lands since prior to the coming into operation of the Planning Acts on the 1 October 1964 up until 1994 without interruption. On the 8 September 1994 the site was leased to Laurence Flood and a term of the lease provided that the premises were not to be used for any other purpose “other than as a warehouse for the storage of cardboard boxes, printing papers, labels, flour, starch, gelatine, dehydrated peas and beans and tinned fruit and for no other purpose whatsoever without the written consent of the Landlord.” The Lessees vacated this site in November 1997 and Kinsealy Farms recommenced using the property until it was leased to the second named Respondent, Sean Blackbourne and William Greene. The activity of storing imported Japanese cars and the maintenance of portacabins on site is the responsibility of the Lessee of the premises.
An examination of the relevant planning permissions in respect of the lands was carried out by Mr John D O’Keeffe, an Architect and he refers to planning permission reference number 87A/8862 which he says granted permission for use of the large storage shed on the site for use as a chill room and food processing unit. He says apart from that there have been eleven planning applications made in respect of the premises since the 1 October 1964 and he says that the premises have been used as a major warehousing and distribution facility since 1987. In particular he refers to an inspection which he carried out on the 18 December 1998 and he says the visual appearance of the premises and his schedule of accommodation is consistent with the use of the premises and yard for the purpose of storage and packaging and distribution since October 1, 1964.
I believe that there are a variety of issues of a factual nature which remain to be resolved in this matter before an Order granting the reliefs visualised in Section 27 should be considered. I am of the view that an issue relating to whether or not a pre statute established user has been established and if so exactly what this use is. I am satisfied that an issue arises as to when the development or unauthorised use commenced, so as to make relevant the five year limitation period within which Section 27 proceedings can be invoked. I am satisfied that given that the onus of proof rests on the Applicants of establishing facts from which the Court could raise a probable inference that the premises had been used at and immediately prior to the 1 October 1964 otherwise than in the manner now described that they have failed to discharged this onus. I do not propose in these circumstances to make the Order sought.
Accordingly it falls to consider the Order that should be made.
I am satisfied that it was entirely reasonable for the Applicants to institute proceedings under Section 27 for the purpose of preventing the use of the premises as a site for portacabins. In this regard it appears to me that the costs, of bringing the proceedings up to and including the first day of the hearing of this matter should be borne by Mr Sean Blackbourne. Those costs being the costs of the Applicant.
Insofar as the costs of Kinsealy Farms Limited are concerned I am of the view that they have been less than co-operative with the Applicants in ensuring that the unauthorised use (as a site for the portacabins) was abated. I am satisfied that the appropriate way in which to deal with this situation is to make no Order as to costs as between the Applicant and Kinsealy Farms Limited. Fingal County Council v RFS Limited
High Court
1999/59 MCA (Transcript)
HEARING-DATES: 6 February 2000
6 February 2000
PANEL: Morris P
JUDGMENTS:
MORRIS P: This matter comes before the Court as an application under Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19 of the Local Government (Planning and Development) Act 1992.
When the proceedings were commenced the title was “Fyffes Group plc, RFS Limited and Sean Blackbourne.” However by Order of the 12 July 1999 it was ordered that the motion against Fyffes Group plc, the first named Defendant be struck out and that Kinsealy Farms Limited be joined as a Respondent. This Order was necessary because it became apparent that the lands were transferred by Fyffes Group plc to Kinsealy Farms Limited, who became registered as owners of the lands, on the 2 February 1982.
The property, to which this Application relates, is a site with a large warehouse thereon situate at Kinsealy Lane, Kinsealy, in the County of Dublin. The lands are registered on Folio 29904F of the Register County of Dublin.
The Order which the Applicants seek is an Order under Section 27 restraining Kinsealy Farms Limited from the carrying on of an unauthorised development on the premises “for the storage and warehousing and use of the premises for office use.” They seek secondly an Order directing the Respondents to cease the unauthorised development of the site and to remove the portacabins and office units, it is unnecessary for the Court to consider this relief since Counsel on behalf of the Party responsible for maintaining the portacabins on site has given an undertaking on behalf of his client to remove the portacabins forthwith. I have no reason to believe that this undertaking has not been complied with.
In essence therefore the complaint which is made against Kinsealy Farms Limited is that described in paragraph 7 of Mr Joseph Gorman’s first Affidafit when he says that on the 15 February 1999 when he visited the premises (apart from the second hand cars which are no longer part of this case and the portacabins) he noticed the unauthorised use of the sheds for the storage of timber, cardboard, polyfilla, some machinery parts and the storage of potatoes.
In his further supplemental Affidavit of the 8 December 1999 Mr Joseph Gorman describes, with photographs, the use to which the premises is now being put. This could be best described as the warehousing of dry goods. This in reality is the use which the Fingal Council now seek to prevent.
The Planning history of the premises is as follows: a planning permission was granted in respect of the site under planning reference 87A/8 862. This permission was granted for the use of the large storage shed on the site to be used as a chill room and food processing unit. Eleven other planning applications have been made in respect of the premises. It is claimed by Mr Robert Knox, Property Manager for Kinsealy Farms that the relevant history of the lands extends to a time prior to the 1 October 1964 when the site was developed by Archers Limited for carrying on a business of the preparation for sale, packaging and distribution of fruit and vegetables. Subsequently Archers Limited sold the lands to Fyffes Group plc who in turn sold them to Kinsealy Farms Limited.
The use that was made of the lands and the buildings thereon is described by Mr Knox in the following terms. He says that both Messrs Archers and Kinsealy Farms Limited brought fruit and vegetables on to the site sourced both from the immediate area of the site in North County Dublin and the surrounding area and imported from abroad. It is said that these goods were transported on to the site in articulated lorries and heavy rigid vehicles. These brought the bulk product to the site and there in the premises the product was repackaged for local deliveries. It is submitted that this use was made of the lands since prior to the coming into operation of the Planning Acts on the 1 October 1964 up until 1994 without interruption. On the 8 September 1994 the site was leased to Laurence Flood and a term of the lease provided that the premises were not to be used for any other purpose “other than as a warehouse for the storage of cardboard boxes, printing papers, labels, flour, starch, gelatine, dehydrated peas and beans and tinned fruit and for no other purpose whatsoever without the written consent of the Landlord.” The Lessees vacated this site in November 1997 and Kinsealy Farms recommenced using the property until it was leased to the second named Respondent, Sean Blackbourne and William Greene. The activity of storing imported Japanese cars and the maintenance of portacabins on site is the responsibility of the Lessee of the premises.
An examination of the relevant planning permissions in respect of the lands was carried out by Mr John D O’Keeffe, an Architect and he refers to planning permission reference number 87A/8862 which he says granted permission for use of the large storage shed on the site for use as a chill room and food processing unit. He says apart from that there have been eleven planning applications made in respect of the premises since the 1 October 1964 and he says that the premises have been used as a major warehousing and distribution facility since 1987. In particular he refers to an inspection which he carried out on the 18 December 1998 and he says the visual appearance of the premises and his schedule of accommodation is consistent with the use of the premises and yard for the purpose of storage and packaging and distribution since October 1, 1964.
I believe that there are a variety of issues of a factual nature which remain to be resolved in this matter before an Order granting the reliefs visualised in Section 27 should be considered. I am of the view that an issue relating to whether or not a pre statute established user has been established and if so exactly what this use is. I am satisfied that an issue arises as to when the development or unauthorised use commenced, so as to make relevant the five year limitation period within which Section 27 proceedings can be invoked. I am satisfied that given that the onus of proof rests on the Applicants of establishing facts from which the Court could raise a probable inference that the premises had been used at and immediately prior to the 1 October 1964 otherwise than in the manner now described that they have failed to discharged this onus. I do not propose in these circumstances to make the Order sought.
Accordingly it falls to consider the Order that should be made.
I am satisfied that it was entirely reasonable for the Applicants to institute proceedings under Section 27 for the purpose of preventing the use of the premises as a site for portacabins. In this regard it appears to me that the costs, of bringing the proceedings up to and including the first day of the hearing of this matter should be borne by Mr Sean Blackbourne. Those costs being the costs of the Applicant.
Insofar as the costs of Kinsealy Farms Limited are concerned I am of the view that they have been less than co-operative with the Applicants in ensuring that the unauthorised use (as a site for the portacabins) was abated. I am satisfied that the appropriate way in which to deal with this situation is to make no Order as to costs as between the Applicant and Kinsealy Farms Limited.
Dublin Corporation v. Lowe
[2000] IEHC 161 (4th February, 2000)
High Court
Lord Mayor of Dublin v Lowe and Signways Limited
1999/45 MCA
4 February 2000
MORRIS J:
This matter comes before the Court as an application pursuant to Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19(4)(g) of the Local Government (Planning and Development) Act 1992. The Applicants seek
(a) an Order directing the Respondents and each of them to forthwith discontinue the unauthorised use of the exterior flank wall (Chancery Place elevation) at first and second floor level of the premises situate at and known as No 3 Inns Quay, Dublin 7 for advertisement purposes.
(b) An Order directing the Respondents and each of them to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (Chancery Place elevation) of the premises situate at and known as no 3 Inns Quay, Dublin 7 by the Respondents and each of them without the benefit of planning permission.
The first named Respondent is the owner of premises no 3 Inns Quay, Chancery Place, Dublin 7. The second named Respondents carry on the business of erecting and maintaining advertising hoardings.
On the 3 January 1996 Mr Daniel J Nolan a Corporation Official with the Planning Department of Dublin Corporation carried out an inspection of the premises no 3 Inns Quay, Dublin. He says that he observed a new advertisement hoarding with a name plate “Signways” on the exterior flank wall of the premises no 3 Inns Quay, Dublin 7. The dimensions of this hoarding were 6 metres x 3 metres. It is common case that this hoarding is the property of the second named Respondent and it is maintained there pursuant to a licence granted to the second named Respondent by the first named Respondent for which the first named Respondent is paid a rent or licence fee. There is no planning permission in existence for the hoarding.
I am satisfied that prior to the month of December 1995 a hoarding of exactly the same dimensions existed on this building erected and maintained there by another company David Allen Holdings Limited. This hoarding was removed because this Company and the first named Respondent decided to terminate their business association in December 1995. The premises were inspected by a Corporation Official on the 18 December 1995 and on that date the hoarding had been removed. The exact date upon which it was removed is not clear. The evidence is that it was due to be removed on the 13 December 1995. However, the first named Respondent says that it was removed “during the course of the weekend commencing on the 15 December 1995.” Accordingly, on the balance of probabilities I am satisfied that the hoarding which had been the property of David Allen Holdings Limited was removed two or three days before the hoarding owned by the second named Respondent was erected on Tuesday 19 December 1995. This change came about as a result of a decision on the part of the first named Respondent to permit the second named Respondent to maintain its advertising hoarding in place of the one maintained by David Allen Holdings Limited.
The Applicant’s Planning Department does not know when the flank wall of the premises was first used for advertisement purposes but it is accepted by it that it had been used for this purpose since in or about the year 1979. The Respondents claim that the hoarding has been in position since prior to 1961 and the first named Respondent claims that it has been in position since “the 1950s or perhaps even earlier.”
The Respondents have raised a number of points by way of defence which I now propose to consider
1. Delay on the part of the Applicants
It has been submitted by the Applicants that apart from the statutory limitation period of five years created by Section 27(6) of the 1992 Act there is vested in the Court a discretion to refuse the relief sought in an application under Section 27 in circumstances where there has been unreasonable delay on the part of the Applicants in making application to the Court which the Court should interpret as acquiescence on the part of the Planning Authority to the unauthorised use of the premises (see Dublin Corporation v Mulligan and Dublin Corporation v Kevans Quay and others).
I am satisfied that the order of the Assistant County Manager authorising the institution of the proceedings in this case was made on the 18 January 1996. The proceedings were not commenced until the 18 May 1999. However, on the 15 September 1998 the second named Respondent made application for planning permission for an advertising sign on this site. This application was refused by the Applicants on the 21 October 1998 and this refusal having been appealed to An Bord Pleanala was affirmed on the 13 March 1998. Accordingly, I am satisfied that the Applicants acted entirely reasonably following their normal procedures in holding off the institution of proceedings pending the determination of this planning application and this action could not be interpreted as being an acquiescence on their part in what they claim to be an unauthorised user of the premises. This does however leave unexplained the period between the 13 March 1998 and the 18 May 1999 when the Notice of Motion was issued. No explanation as such has been tendered for this period of one year and two months. However, it appears to me that this period of delay could be construed as acquiescence only if there was something more in the case than the mere passage of time, given that there had been a positive policy decision to hold off proceedings while the planning permission application was being processed. In my view it is far more likely that the process of communication between the Enforcement Department of Dublin Corporation and An Bord Pleanala accounts for this passage of time and in my view it would be unreasonable to, in effect, punish the Applicants for delay when they had in the first instance stood back and withheld prosecution of the matter in order to permit the Applicant bring a planning application.
2. Claim of an Established User
The Respondents have claimed that this site has been used for the purpose of an advertising hoarding since prior to the 1 October 1964 and accordingly Section 2(b)(i) excludes the structure from the definition of “unauthorised structure” under the 1963 Act.
In my view even if the Respondents should succeed in establishing that the flank wall of the premises had been used for the purpose of displaying an advertising hoarding since prior to the 1 October 1964 and so, prior to its removal, would be entitled to the benefit of Section 2(b)(1) of the Act, when it was removed by its owner from the building there was a break in continuity which in effect destroys any rights which existed at that time.
I recognise that the period of time during which there was no structure on the building is short amounting to no more than some days but in my view what is relevant is that the advertising hoarding was deliberately removed from the building by its owner. What was erected in its place was not the original but a new structure owned by a different company.
When considering this matter in County Council the County of Galway v Connaught Proteins Limited (unreported 28 March 1980) Mr Justice Barrington had to consider a case where a mill had been totally gutted by fire. The status of what remained of the mill building was considered by Mr Justice Barrington and his Judgment contains the following passage
“It appears to me that when the mill perished, that permission to use those premises for a specific purpose perished also.”
In exactly the same way whatever permission or immunity existed prior to the removal of this hoarding this “perished” with the removal of the hoarding. I believe that there must, in planning terms, be a significant difference between a temporary removal for repair and maintenance with the intention of the original or repaired structure being reinstated after such repair and the removal of such a structure with no intention of its reinstatement by its owner but the replacement of a different (or be it similar) structure by a third party. I am of the view that it is irrelevant that the new structure corresponded in all respects with the original structure. The removal of the original hoarding by David Allen Holdings Limited without the intention of replacing it must be regarded as an abandonment of any rights which they may have acquired up to that time (see Dublin County Council v Tallaght Block Company Limited 1985 ILRM 512). Hederman J in the course of his Judgment said “where a previous use of land has not merely suspended for a temporary or determined period but has ceased for a considerable time with no evidenced intention of resuming it at any particular time, the Tribunal in fact was entitled to find that the previous use had been abandoned so that their resumption constituted a material change of use.
I am satisfied in this case that the action of David Allen Holdings Limited constituted a suspension of the previous use of the land. There was no evidence of any intention on their part of resuming it at any time in the future.
Accordingly in my view this defence fails.
Submission Section 27 Procedure Inappropriate
The second relief sought by the Applicants in their Notice of Motion is
“an order directing the Respondents and each of them to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (of the premises)”
As long ago as 1985 Gannon J said in Dublin County Council v Kirby 1985 ILRM 325 said. “The distinction between the extent of the intervention by the High Court which may be invoked in a summary manner under Section 27(1) as compared with subsection (2) of the Section is clearly evident from the wording of the two subsections, is very significant and is in accordance with procedures founded upon principles of justice. There cannot be any doubt but that such distinction was intentional on the part of the legislature. It leaves no room for inferring that the High Court may in such summary proceedings be moved to make orders of the mandatory nature which are made only after full and fair investigation in the course of proceedings instituted in the ordinary way.
With this view Blayney J in John Louglinane and Anne Loughnane v Patrick Hogan expressed himself to be in “complete accordance.”
For my part I respectfully agree. Keane J as he then was in Dublin Corporation v McGowan 1993 1 IR 405 adopted these views when he said “(The Section) is intended as a “Fire Brigade” Section to deal with an urgent situation requiring immediate action to stop clear breaches of the Act.”
Accordingly I do not propose to make any Order under the second paragraph of the Notice of Motion.
With regard to the first relief sought in the Notice of Motion, from the outset both Respondents have made it clear that they propose to rely on an established user of the premises. In the letter of the 26 January 1996 Denis Mumaghan & Company, Solicitors on behalf of the first named Respondent said that an advertisement hoarding had been on the building “back into the fifties or perhaps even earlier.” In their letter of the 25 January 1996 the second named Respondents made the case that “The same size of sign has been in situ, since 1961.”
In those circumstances in the ordinary way section 27 proceedings would have been inappropriate as there would be a clear issue to be tried which could only be tried, in my view, on full plenary hearing. The issue being whether there was a pre statute established user. However in the particular circumstances of this case I believe that this issue becomes moot because of the conduct of David Allen Holdings Limited in removing their hoarding in circumstances, which I am satisfied amount to an abandonment of any rights which may have been established prior to that time.
Accordingly in the particular circumstances of this case I am satisfied that Section 27 proceedings are appropriate. I am satisfied that the hoarding is not protected by the Local Government (Planning and Development) Regulations 1994 or any aspect of Regulation 9 thereof or any part of the Second Schedule thereto.
Accordingly I make the Order sought in the terms of Paragraph 1 of the Notice of Motion.
Eircell Ltd. v. Bernstoff
[2000] IEHC 18 (18th February, 2000)
Judgment delivered by Mr. Justice Barr on the 18th day of February, 2000.
The background to both proceedings, briefly stated, is as follows:-
1. Eircell operate a mobile phone system throughout the state by means of telecommunication masts which relay radio signals. A substantial network of masts is required to operate the system. This entails inter alia, the erection of a mast at Berkeley, New Ross, a rural area, to service subscribers in that part of county Wexford. Eircell has entered into a lease with Mr. Garry Murphy, a local farmer, under which it has secured a suitable site for the proposed mast for a period of five years from 12th February, 1999. Mr. Murphy’s farm and other neighbouring properties are served by a boreen from the Enniscorthy to New Ross main road and it constitutes the only means of access to those properties. The lease with Eircell includes the following:-
“In consideration of the yearly rent and the covenants and conditions hereinafter reserved and contained the Lessor hereby demises unto the Lessee all that and those the premises described in the Schedule hereto… as more particularly delineated on the map or plan annexed hereto and thereon outlined in red together with a right of way thereto and therefrom for all purposes and at all times by day and by night with or without vehicles of all description and on foot in connection with its business over the portion of the Lessor’s property coloured yellow on the map annexed hereto, together with the right to lay, construct, maintain and repair the cables, ducting, wires, poles and manholes over, under and along the way coloured yellow on the map attached”.
2. Part of the right of way afforded to Eircell is over lands owned by Mr. Murphy and the balance relates to the boreen from the main road, part of which is on lands owned by the first defendant, Mrs. Bernstoff. Notwithstanding the extensive rights granted to Eircell in the lease regarding the access route to the mast site, it is not in dispute that the proposed user of the boreen by Eircell will be minimal. It is envisaged that two engineers will be required to service the mast every few months. This will entail driving on the boreen to and from the site in a small van about four times a year. No other user by Eircell is anticipated other than in connection with the possible removal of the mast in or about the year 2004.
3. The decision by Eircell to erect the mast on Mr. Murphy’s land has caused substantial local agitation. The defendants in the Eircell proceedings and others have formed a group called the Berkeley Environment Group (the group) which has been and continues to campaign strongly against it. They believe that the operation of the mast and the perceived emission of radiation from it will create a serious health hazard for people living in or having resort to the area.
4. Eircell applied for and obtained planning permission from Wexford county council, notwithstanding the opposition of the group. The objectors appealed to An Bord Pleanala which granted planning permission for the mast for a period of five years from the date of its order made on 6th January, 1999; after which Eircell is required to remove the mast unless further planning permission is granted for its retention. It follows, therefore, that the objectors will have an opportunity to mount another challenge to the existence and user of the mast on health or other relevant grounds if they wish to do so at that time.
5. The permission granted to Eircell by An Bord Pleanala is subject to certain conditions which include the following:-
“6. Details of the proposed colour scheme for the telecommunications structure, ancillary structures and palisade fencing shall be submitted to and agreed in writing with the planning authority prior to the commencement of development.
7. Prior to the commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or other security to secure the satisfactory reinstatement of the site, coupled with an agreement empowering the planning authority to apply such security or part thereof to the satisfactory completion of the reinstatement, including all necessary demolition and removal….”
6. As to condition 6; Eircell performed its obligation thereunder, but the formal written approval by the planning authority of the proposed colour scheme was not received by it until about two days after the commencement of work.
7. As to condition 7 which provides for a bond covering the cost of removing the mast at the end of the five year period; here again there was a slight delay in the fulfilment of the term. The requisite bond was not received by the planning authority until a few days after the commencement of work.
8. Work on the site commenced on or about 22nd March, 1999. Notwithstanding the planning permission granted to Eircell and the failure of the objectors to sustain their case about perceived health hazard, the group and others comprising a large crowd gathered on and about the boreen and prevented the Eircell contractors from gaining access to the site. The objectors and their supporters resorted to serious intimidation to prevent the erection of the mast. Protracted negotiations with the group involving also local public representatives, including members of the Oireachtas, continued for several months and came close to a resolution of the dispute. However, in the end negotiations broke down and Eircell decided that it would have to proceed with the erection of the mast as planned in order to make good a deficiency in its mobile phone service in that part of Co. Wexford. This led to further agitation and intimidation by the group and their supporters in October, 1999 in the vicinity of the site which prevented the work from continuing. This in turn gave rise to the Eircell action against the group in which, inter alia, the following relief is sought:-
“1. An injunction restraining the defendants and each of them, whether by themselves, their respective servants or agents, or any persons acting in consort with them, or otherwise howsoever, and also restraining any persons having notice of the making of any order herein, from interfering with the plaintiff’s use and enjoyment of the piece or plot of ground as more particularly delineated and edged red (measuring approximately 100 square metres) together with the right of way coloured yellow on the map or plan annexed hereto, being part of the lands comprised in Folios 10498 and 10802S, Co. Wexford and situated in the Townland of Berkeley, Barony of Bantry, and County of Wexford…..”
9. Other related injunctive relief is also sought.
10. An interim injunction was granted by Kinlen J. on 13th October, 1999 restraining the group and others having notice of the order from interfering with access to and from the Eircell site. Separate proceedings have been brought by the group against Eircell pursuant to Section 27 of the Local Government (Planning and Development) Act, 1963 in which the following relief is sought:-
“1. An Order prohibiting the respondent, its servants or agents from carrying out work on lands at Berkeley, New Ross, Co. Wexford, Planning Register reference no. 97-2154 other than in accordance with the conditions attached thereto.
2. An Order prohibiting the respondent from carrying out any further works on the lands located at Berkeley Forest, New Ross, Co. Wexford, the subject matter of Planning Permission, Register Reference no. 97-2154 unless and until conditions Nos. 6 and 7 of that permission had been complied with.
3. A declaration that any works carried out not in conformity with Planning Permission, Register Reference no. 97-2154 constitutes an unauthorised development for the purposes of the Local Government (Planning and Development) Acts, 1963-1998.
On 20th October, 1999 application was made ex-parte to Mr. Justice McCracken by counsel on behalf of the group for an interim injunction restraining Eircell from continuing with the erection of the mast on the grounds that it was not in conformity with the planning permission in question and constituted an unauthorised development for the purposes of the Planning Acts. Eircell responded immediately to the injunction and on notice to the group, applied to McCracken J. later that day for an order discharging it on the ground that although there had been in the strict sense minimal delay in complying with conditions, no harm whatever had been done to the group or anyone on that account and that injunctive relief ought not to have been granted. In the light of the evidence adduced by Eircell, McCracken J. discharged the interim injunction he had granted to the group. An interim agreement was arrived at between the parties whereby Eircell was enabled to complete the erection of the mast subject to an undertaking not to bring it into service pending further order of the court.
The controversy between the parties now comes before the court on foot of motions in the respective proceedings. Eircell is seeking a series of injunctions restraining the group and all persons having knowledge of the granting of such relief from interfering with the user of the mast for its intended purpose as an antenna for relaying signals in connection with its mobile phone network and also from interfering with access to and from the site. The motion brought in the group’s proceedings relates to the orders which it seeks under section 27.
THE SECTION 27 APPLICATION
It is convenient to deal with the section 27 application first. It is conceded by Eircell that the requirements of conditions 6 and 7 in the planning permission were not fully complied with in that there was a slight delay by the local authority in complying with the first and an equally short delay of a few days by Eircell in complying with the other condition. However, it is submitted that having regard to the second order made by McCracken J. on 20th October, 1999 in which it is stated that the court was satisfied that conditions 6 and 7 of the planning permission have been complied with and as there has been no appeal against that finding, the matter is res judicata between the parties and cannot be raised again by the group. It is also argued on behalf of Eircell that, apart from the question of res judicata, the minimal time delays relating to compliance with the respective conditions are of no significance and caused no harm whatever to the group or anyone else and, accordingly, the applicants are not entitled to relief under section 27. It was argued on behalf of the applicants that as the requirements in question were conditions precedent to the commencement of development, they should be strictly interpreted and subsequent compliance does not render legal what was already an unlawful development.
I am satisfied that in all the circumstances I should follow the decision of McCracken J. in holding that the conditions in question have been complied with. Even if he had made no such order it is abundantly clear on the facts that the relief sought under section 27 should not be granted. No court should make an order which is potentially futile. If the mast were declared to be an unlawful development, no doubt application would be made to the planning authority for a retention order and in the circumstances that would be granted for the asking.
RIGHT-OF-WAY OVER THE BOREEN
The Eircell application turns upon the nature and extent of the boreen right of way to the mast site. In approaching that issue one starts from the premise that traditionally boreens are the veins of rural Ireland and the definition of the nature and extent of the right of way any one of them provides may well be a difficult task. The case has been made on behalf of the group, for the first time at a late stage in the proceedings, that the operation of the mast cannot proceed because the access route to it from the adjacent main road is a private right of way by prescription which, in the case of anyone occupying Mr. Murphy’s land, is limited to agricultural or domestic purposes only and therefore excludes user in connection with the Eircell mast which is commercial in nature.
An amount of evidence has been adduced regarding the boreen. That part of it adjacent to the Enniscorthy/New Ross Road (or at least half the width of it – there is some controversy in that regard) is on Mrs. Bernstoff’s land. There is some evidence to suggest that the boreen has been in existence probably for hundreds of years. Originally it joined the Enniscorthy – New Ross Road with another highway and on that account would have been a public way. If it is a public road it would provide a right of access to the mast for Eircell and its agents. However, at some as yet unspecified time, the boreen petered out before its terminus with the second highway and in effect because a cul-de-sac. This event did not alter user by the various occupiers in the vicinity of what ultimately became Mr. Murphy’s property, save that they could no longer traverse the boreen as far as the public road which had been cut off. It was submitted on behalf of the group that if the boreen ever had the status of a public way, it had lost it. The contention was made that a cul-de-sac cannot be a public way unless it gives access to a place of public interest such as a beach, an area of scenic beauty or a place of historic significance such a monastic ruin or the site of an important battle – none of which it was submitted applies in the instant case. Although the occupiers of some other properties adjacent to Mr. Murphy’s farm which are dependant upon the boreen as sole means of access, have used the lane-way in connection with non-agricultural business activities there in the past, Mr. Murphy and his predecessors in title for upwards of twenty years have confined their user of the boreen to agricultural and domestic purposes only. Accordingly, it is argued that he and those claiming through him, including Eircell, are restricted to such user. The rights of each such occupier, who it is submitted must be regarded as having no more than a prescriptive private right of way, should be considered in the light of the particular circumstances of each case – the essence of the question being the nature of the boreen user in connection with each individual property during the past twenty years. If that submission is good in law then Eircell have no right of way over that part of the boreen which is on Mrs. Bernstoff’s lands and, therefore, they would have no right to service the mast by using the boreen pursuant to the purported right-of-way granted by the lease.
Eircell’s answer to the foregoing argument is threefold. First, the original boreen which joined the two public highways never lost its status as a public way when eventually it became a cul-de-sac. It was contended that once a highway always a highway unless its status is extinguished by statute which did not happen in the present case. Secondly, even if it always had been a cul-de-sac as it is now, there is sufficient evidence to establish that it is a public highway. In this regard the plaintiff relied upon a written submission made on behalf of the group to An Bord Pleanala in course of the planning appeal in which they referred to the boreen as a former public road and it was also submitted on their behalf that it led to an area of natural beauty and public interest which attracted, among others, walkers and boy-scouts whose health would be put at risk by the operation of the mast. It was also urged that the change of character which eventually emerged when the boreen petered out and became a cul-de-sac could not affect the existing rights of occupiers at Mr. Murphy’s end of the boreen whose unrestricted user of it would have continued as it had been originally, save for the practical inability of being unable to connect with the road which had been cut off.
Finally, it was submitted that the court could not make any order affecting Mr. Murphy’s property without giving him an opportunity of being heard. He is not a party to the action and no proceedings have been brought against him by the group.
It is not in controversy that Eircell would be entitled to the injunctive relief which they seek pending trial of the action if they satisfy the court on two points. The first is that, as to the right of way controversy, there is sufficient evidence before the court to establish that there is a fair issue to be tried in that regard. In the light of the foregoing arguments I have no doubt that Eircell has established that proposition.
The second factor which must be established by the plaintiff is that in all the circumstances the balance of convenience favours the granting of the injunctive relief sought. In that regard they rely on the following points:-
(i) There is presently a part of their phone network which has a poor signal. The mast is required to remedy that deficiency. Without it Eircell is at a disadvantage with its competitor and is suffering an on-going loss of business on that account. It is impossible to quantify that loss and, therefore, damages do not constitute an adequate remedy.
(ii) In determining what loss or inconvenience would be suffered by the group or anyone else if the relief sought is granted the issue relates only to the perspective use of the boreen by Eircell which it is accepted will be minimal. Accordingly, no significant relevant loss will be suffered by the defendants pending the trial of the action.
(iii) It is proper for the court to take into account the merits of the group’s case and their reprehensible conduct in the matter of intimidation and attempted unlawful enforcement of alleged rights.
(iv) Conversely, it is also proper to take into account the fair and reasonable behaviour of Eircell and its agents in this matter.
All in all, I am satisfied that the balance of convenience favours the granting of the relief sought pending the trial of the action and that Eircell should be permitted to activate the mast as part of its mobile phone network. Accordingly, I grant the relief sought at paragraphs 1 and 2 in the notice of motion herein; such relief to continue until the trial of the plaintiff’s action against the group.
Dublin City Council v. Eircom p.l.c., Eircell Ltd. and An Post
[2002] 3 I.R. 327
[1999 No. 41MCA]
High Court 17th October 2002
Carroll J.
17th October, 2002
The applicant has brought proceedings under s. 27 of the Local Government (Planning and Development Act), 1976, as amended by s. 19(4)(g) of the Local Government (Planning and Development) Act, 1992, against the first respondent, which is the rated occupier of the site in question, and the second respondent which is the licencee of the antennae support structure with antennae on the said site. The first respondent is now called Eircom plc. The site is situated with Whitehall Telephone Exchange adjacent to the garda station at Whitehall and beside the rear garden of No. 239 Griffith Avenue owned and occupied by Mrs. Karen Heneghan who complains about the structure. An Post are no longer party to the proceedings.
The applicant claims the structure is unauthorised, whereas the respondents claim it is an exempted structure under reg. 9 of the Local Government
[2002]
3 I.R. Dublin City Council v. Eircom p.l.c.
Carroll J. 329
H.C.
(Planning and Development) Regulations, 1994 and class 29(f) of the said Regulations, as amended.
Regulation 9(1) provides:-
“(a) Subject to paragraph (b) and article 10, development of a class specified in column 1 of Part 1 of the Second Schedule shall be exempted development for the purposes of the Acts provided that such development complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 1.
(b) Development of class 29(f) specified in column 1 of Part 1 of the Second Schedule which complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that part of that class in the said column 1 shall, if commenced during the period of six months beginning on the coming into operation of this paragraph be exempted development for the purposes of the Acts.”
Paragraph (b) came into operation on the 16th May, 1994 and the exemption expired on the 15th November, 1994.
Schedule 2, Part 1, class 29(f) refers at column 1 to “antennae support structures”. The relevant condition in column 2 is:-
“The height of any such structure shall not –
(a) if constructed or erected on the ground exceed 15 metres. …”
The applicant claims the structure is unauthorised by virtue of reg. 10 of the Regulations of 1994, because it was erected in breach of condition 1 of a planning permission granted on the 22nd April, 1991. The structure is erected on some of the parking places to be provided under condition 1.
Regulation 10(1) provides:-
“Development to which [regulation] 9 relates shall not be exempted development for the purposes of the Acts:-
(a) if the carrying out of such development would:-
(I) conratravene a condition attached to a permission under the Acts or be inconsistent with any use specified in a permission under the Acts,etc.
The respondents claim that reg. 10 does not apply to reg. 9(1) because para. (b) does not specifically say so. The application of reg. 10 is mentioned in three of the subsections of reg. 9 but not in two.
I do not accept that reg. 10 does not apply to the exemptions granted under reg. 9(1)(b). The regulation clearly states the circumstances under which exemptions under reg. 9 are not to be exempted. One has only to read reg. 10(1)(iii) which deals with endangering public safety by reason of traffic hazard to underline that reg. 9 is indeed subject to reg. 10. The support structure would have come within the exemption under reg. 9 since it was commenced within the six month window provided by reg. 9(1)(b) were it not for the fact that it was erected in breach of a condition under the planning permission of 1991. Therefore, in my opinion, the structure is an unauthorised structure.
There was an ancillary point, which does not now arise, as to whether the antennae themselves were or were not exempted development under reg. 9(1)(b). It is not necessary to deal with it in this matter. In any event, Local Government (Planning and Development) Regulations, 1997, made provision for exempting the attachment of antennae to antennae support structures.
The next point is to consider whether the respondents should be forced to remove the structure.
The respondents claim:-
(1) that the applicant has been guilty of such delay as to disentitle it from requiring the removal;
(2) that they would be prejudiced by having to remove it now since it forms an essential part of the network of antennae masts in the Dublin area;
(3) that it would now be impossible to get a suitable site in the area;
(4) that the applicant cannot prove that the respondents knew of the violation of the planning permission of 1991;
(5) that it would be in the public interest that the service provided by the Eircell telecommunications network should not be degraded by having to remove the antennae support structure.
It has been held by the Supreme Court in Morris v. Garvey [1983] I.R. 319 at p. 324 per Henchy J. that:-
“it would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship or such like extenuating or excusing factors) before the court should refrain from making whatever order … is ‘necessary to ensure that the development is carried out in conformity with the permission’.”
To that must be added the requirement that the development is carried out in conformity with any provisions for exemption.
Therefore, the onus is on the respondents to satisfy me that I should exercise the discretion not to order the removal of the offending structure in their favour.
Underlying this application is the effect which the support structure has had on the lives of the adjoining owners of 239 Griffith Avenue, namely Mrs. Karen Heneghan, her two sons and her husband when he was alive. They objected immediately when the mast portion of the support structure went up in May, 1995. Mrs. Heneghan has several serious objections set out in her affidavit. She complains of the intrusive visual impact, which is truly offensive as can be seen from the photographs exhibited, being forced to abandon plans for a rear extension, invasion of privacy, nuisance from birds which congregate on the structure, whining noise during windy weather, illegal parking,etc. She claims that her property has been devalued and exhibits a valuation made on the 22nd February, 1999, (uncontested) that the house without the support structure is worth £190,000.00 and with the support structure is worth £175,000.00.
She says in a letter to Mr. Murtagh (of the Mobile and Broadcast Services Division of the first respondent) dated the 12th September, 1995, that she would like to move but could not afford to do so because of devaluation of the house.
The time frame within which this matter unfolded is as follows:-
22nd April, 1991:
planning permission granted for the erection of a single storey extension to the rear of Whitehall Telephone Exchange
15th November, 1994:
work completed on the concrete base in the area designated as car parking
6th May, 1995:
antennae support structure erected together with antennae
18th April, 1996:
letter from principal officer written under the mistaken impression that the structure was exempted under art. 9(1)(b) but calling on the respondents to obtain planning permission for attaching the antennae
20th August, 1996:
planning application by the first respondent to erect an 18 metre high steel pole structure at the site in Griffith Avenue in lieu of the support structure
26th March, 1997:
decision to grant planning permission
22nd August, 1997:
decision by An Bord Pleanála to refuse permission
11th February, 1998:
letter from principal officer to the first respondent drawing attention to the fact that the support structure was erected on car parking spaces and requiring the structure to be removed forthwith or proceedings would be instituted
5th March, 1998:
letter from the second respondent claiming the car parking spaces were built in accordance with planning permission
13th March, 1998:
letters sent to each of the respondents repeating the request (no reply received)
10th May, 1999:
motion on notice issued.
The first point is that the mistaken opinion of the corporation official in the letter of the 18th April, 1996, cannot constitute an estoppel ( Dublin Corporation v. McGrath [1978] I.L.R.M. 208). A public authority cannot be estopped from asserting that it actedultra vires either by itself or through its agent. Therefore, the applicant is not estopped from claiming that the support structure is unauthorised development.
In my opinion, the lapse of time which occurred in this case cannot be construed as either acquiescence or laches. The period of time taken up by the application for planning permission for an alternative mast was a reasonable attempt by all parties to resolve the situation.
An Bord Pleanála refused permission in August, 1997. The applicant again took up the matter in February, 1998. The respondents denied a breach of the planning permission in March, 1998 and the applicant restated its requirements in the same month.
The motion on notice issued in May, 1999.
In my opinion, the respondents could have been under no illusion at any time that the objection to the support structure was going to go away. They were the ones with specific knowledge of the conditions of their own planning permission. I do not accept that the respondents were unaware of the breach of the condition. Both respondents were corporate bodies. When the planning permission was granted the first respondent received actual knowledge of it. It did not lose this knowledge at any time. If the employees responsible for the erection of the support structure did not inquire or research what they could or could not do in the light of the planning permission of 1991, this does not relieve the respondents of responsibility in the matter. The second respondent as subsidiary or sister company of the first respondent can be in no better position.
The respondents, despite actual knowledge, did not disclose to the applicant the fact that the support structure was erected in breach of a condition in the planning permission of 1991. It is no answer to say the applicant, as planning authority, also had had access to the planning files. In my view, it was for the respondent to inform the applicant of the true situation.
The respondents rely on the public interest in providing a network of masts in the Dublin area and say it is impossible to obtain an alternative site in the area. However, the provision of a network of masts also coincides with the profit making capacity of the respondents.
Mrs. Heneghan expressed her willingness to sell in 1995. The parties did explore the possibility of a sale during the hearing of this case but were unable to agree on a price.
The uncontested valuations based on 1999 values show that the respondents could then have bought the house for £190,000.00 and sold it to a purchaser willing to live near the support structure for £175,000.00. If the respondents were able to agree a purchase price with Mrs. Heneghan they could ensure that the present site could continue to operate without the necessity of trying to acquire another site and being faced with the necessity of applying for planning permission and all that that entails. This is on the assumption that the applicant would regard a sale of the house to the respondents as the end of the matter.
However, if the respondents and Mrs. Heneghan cannot agree on a price, then I refuse to exercise my discretion not to order the removal of the antennae support structure as an unauthorised development. In my opinion the right of Mrs. Heneghan to the enforcement of the law outweighs any “public interest” which in fact translates as being in the respondents’ interest.
Dublin Corporation v Maiden Site Posters Ltd
The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin v Maiden Poster Sites Ltd.
1982 No. 38 MCA
High Court
8 July 1982
[1983] I.L.R.M. 48
(Murphy J)
MURPHY J
delivered his judgment on 8 July 1982 saying: This is a claim for relief under s. 27 of the Local Government (Planning and Development) Act 1976, (the 1976 Act).
The respondents are a company engaged in the business of erecting hoardings for the display of advertisements. For that purpose they acquire suitable sites or other facilities. Having regard to the nature of the business which they carry on, I would assume that the respondents are conscious of the need to obtain planning permission for the erection of such structures or the use of such structures for advertising.
In June 1981 the respondents acquired from Reg Armstrong Motors Ltd the right to use the outer walls of 67 Pearse Street, Dublin for the purpose of displaying poster-type advertisements. Some time between June 1981 and the 27th August 1981 the respondents erected four hoardings measuring 20 feet by 10 feet on those premises and proceeded to use them for the display of advertisements. It is common case that this development required planning permission and that no such permission was sought or obtained prior to the development.
The respondents did subsequently apply to the planning authority for per *49 mission to retain the structure but that applicaion was refused. On 1 July 1982 the respondents appealed that refusal to the planning board and that appeal is still pending.
Apart from the existence of the appeal, the only argument offered by the respondents as to why an order restraining the continued unauthorised development should not be granted was that the works — albeit unauthorised — represent a considerable improvement to the appearance and amenities of premises which had become badly dilapidated. The factual basis for that argument is indeed supported by the photograph put in evidence by the respondents.
It is proper to say that an important issue was raised as to whether the court has power under s. 27(1) of the 1976 Act — that is to say where no planning permission has been granted — to direct the removal of the unauthorised development. It is certainly clear, having regard to the decision delivered by the Supreme Court in Morris v Garvey [1982] ILRM 177 that the court does have power under s. 27(2) of the 1978 Act — that is to say where permission has been granted but the development is carried out without complying with the terms of that permission — to order the demolition of the offending works in a proper case.
Whilst it would be surprising if the powers of the court were any less comprehensive in a case where no permission at all had been obtained than in the case where a permission was obtained and departed from in certain respects, it does appear that a question may have to be determined as to whether this is so. However, having regard to the view which I take of this case and the relief which should be granted it is not necessary for me to decide that issue at the present time.
In the present case it is clear that an unauthorised use is being made of the premises in question. The court does have a discretion as to whether an injunction should be granted to restrain that use. As the purpose of the section is to secure compliance with the legislation and the proper planning it is designed to achieve I feel that this is an appropriate case to grant an injunction in the terms of paragraph (a) of the notice of motion. Certainly I feel that the court should not facilitate the respondents in continuing to derive a substantial income from an unauthorised development. Moreover, as I say, I must assume that the respondents knew or should have known of the need to obtain a planning permission for the development.
I will, however, provide that the injunction will not take effect for three weeks from today’s date. Furthermore, it seems to me that if the appeal to the planning board is successful that the injunction should be lifted. Accordingly, I will give the respondents liberty to apply for that purpose in the event of the appeal succeeding. The applicants are entitled to their costs of the proceedings.
Avenue Properties Ltd and John McCabe v Farrell Homes Ltd
1981 No. 25 MCA
High Court
27 May 1981
[1982] I.L.R.M. 21
BARRINGTON J
having recited the facts of the case delivered his judgment on 27 May 1981 saying: The applicants motion first came before DArcy J on 6 April 1981. At that stage the office block was five storeys high and the applicants submitted that it violated the planning permission in two different respects. First the planning permission was for a seven storey office block built over a *22 basement and the existing structure had no basement. Secondly the planning permission contemplated a building with two projections or nibs on the side nearest Kingram House and the existing structure had no such projections or nibs. The respondents, however, argued that the order in which they developed their property was a matter for them. They hoped that the planning authority would give them permission to dispense with the basement and the projections but they said, if the planning authority did not do so, they would put in the basement and the projections later.
It should be mentioned that the original permission contemplated that the basement would be used as a bank vault and for the storage of fuel oil. The developer had abandoned the first project and the present building bye-laws and fire officers regulations would not permit the use of the basement for the storage of fuel oil.
Under these circumstances DArcy J clearly thought there was a certain air of unreality in the submissions of both sides. On the one hand he could not see that the applicants were, in any way damaged because of the omission of the basement and the projections. On the other hand it was difficult to believe that a developer who intended to put in the basement would first build the office block leaving the basement to be excavated later.
The respondents, however, said that their course of conduct was explained by the fact that they hoped that the planning authority would not require them to build the basement and the projections. If however, they were required to do so they could and would do so. The applicants, on the other hand, admitted that their objections in relation, for instance, to the basement, were of a purely technical nature. If, however, they could by means of these objections, force the respondents to apply for a fresh planning permission then they could insist on the basement being provided and used, for example, for car parking, thereby reducing the traffic hazard which, they say, the development will otherwise create.
DArcy J took the view that the applicants case was unmeritorious and dismissed the application with costs.
The presentation of the applicants case has been made more difficult by reason of the fact that the planning authority, unfortunately, lost the file relating to the matter so that the original drawings on which the planning permission was granted are not now available. The circumstances in which the file relating to the original permission was lost are referred to in a letter which the principal planning officer wrote to both parties to this dispute on 14 May 1981. It is not necessary to go into them here. Suffice it to say that as a result of the file being lost Mr McGaw, the architect advising the applicants, was not able to inspect the original drawings accompanying the 1957 planning application. He only had available to him Xeroxed copies of these drawings and these copied did not, on their face, expressly disclose the scale to which they were drawn.
However, on 6 April 1981 the respondents lodged in the planning office a further planning application in relation to this development and the papers relating to this application were inspected by Mr McGaw on 22 April 1981. From this inspection it appeared that the respondents architect, in a covering *23 letter lodged with the planning application, stated that the drawings accompanying the 1957 application were drawn on a scale of 16 feet to one inch. Applying this scale to copies of the drawings lodged with the original application Mr McGaw reached the conclusion that the original scheme contemplated that the walls of the new development should stand back approximately seven feet from the boundary wall between the respondents properties and Kingram House. He then took a measurement on the ground and found that there would, in fact only be four feet two inches between the outer wall of the new building and the boundary wall when the building was completed. He therefore concluded that it would not be possible to add the projections contemplated by the permission after the office block had been completed.
The applicants appealed to the Supreme Court against the order of DArcy J and, on the appeal, sought to introduce evidence of the new discoveries made by Mr McGaw. The respondents said they disputed Mr McGaws findings. Under these circumstances the Supreme Court admitted the new evidence but remitted the matter to the High Court to resolve the issue of fact between the parties and to reconsider the application for an injunction in the light of the new evidence. On the application before me the respondents have stressed that the drawings filed with the original planning application in 1957 were not working drawings and that it is therefore dangerous to make fine calculations based on them. Moreover, they have shown that there is frequently a distortion on copy drawings particularly copies of the type which were available to Mr McGaw when he made his calculations. Mr McGaws calculations, so far as they are based on the copy drawings, can not therefore be regarded as scientifically reliable.
Mr McGaw, however, has another leg to his argument. He says that it is clear from the drawings that the projections referred to were meant to enclose two lavatories or water closets placed side by side. Such water closets, he says, would not be less than 3 to 3 feet wide. The projections would therefore have to project 6 to 7 feet from the wall of the building and there simply is not room to accommodate them between the building and the boundary wall.
The respondents say that the boundary wall is a party wall and that it is from 1 foot 10 inches to 2 feet wide and they say that by demolishing the boundary wall or incorporating it into the projections they would just have enough room to build the projections as planned.
To this the applicants reply that the 1957 planning permission does not give permission to knock or interfere with the boundary wall, to which the respondents rejoin that if the permitted building can only be built by interfering with or demolishing the boundary wall they have, by implication, permission to do this as the boundary wall is their property.
The applicants, however, deny that the boundary wall is the respondents property.
The respondents claim that the boundary wall is their property is based on the terms of their lease. Their lease is a lease of 21 February 1835 Sidney Herbert to William Hogan. Under the terms of the lease the lessee covenants to build on the demised premises one good and substantial dwellinghouse and further *24 covenants that he will enclose the said demised premises with a stone or brick wall within the first six months or in default thereof, he the said William Hogan his heirs, executors administrators or assigns shall pay or cause to be paid to the said Sidney Herbert or the person or persons for the time being entitled as aforesaid an additional yearly rent of 20 sterling.
No such penal rent is payable and, from the respondents title, it therefore seems a fair inference that the boundary wall which consists partly of stone and partly of brick was built by the respondents predecessors in title and is a party wall.
The matter however is complicated by reason of the fact that the lease refers to one of the properties adjoining the respondents property as being the school house. This property has been identified in evidence as being the property now owned by the applicants Messrs Avenue Properties Ltd.
Messrs Avenue Properties Ltd now own their property in fee simple but formerly held it under an indenture of lease dated 25 July 1833 Sidney Herbert to Richard Benson Warren and others. Their lease therefore antedated the respondents lease in terms of time. Under this lease the lessees covenanted to build a school house for infants or a good and substantial dwellinghouse and to enclose the said demised premises with a stone or brick wall within the first six months
From the respondents lease it seems clear that the applicants predecessors in title had, at the time of the granting of the respondents lease, carried out their covenant to build the school house and it may seem reasonable to assume that they had also carried out their covenant to build the walls bounding their property.
I do not think it would be right for me, on the basis of the evidence adduced in this case, finally to resolve the issue of title which arises between the applicants and the respondents as to the ownership of the boundary wall. Suffice it to say that, on the basis of the evidence adduced, I am not satisfied that the boundary wall referred to is the exclusive property of the respondents or that they are free to demolish it to complete the projections on their office block.
It seems clear even on the respondents evidence that the respondents cannot now build the projections without demolishing the boundary wall or at least incorporating it into their new structure. This being so I reach the conclusion that, on the balance of probability, the respondents cannot now complete the office block in accordance with the 1957 permission. Moreover, it appears to me that if the respondents had seriously intended to build the projections when they commenced construction, they would not have left themselves in a situation where there was not sufficient room between the wall of the office block and the boundary wall with Kingram House to build the projections. Yet again it appears to me that the office block cannot have been built along the line contemplated by the planning permission of 1957. The entire structure must have been moved some one to three feet nearer to Kingram House and it would therefore appear that, in several different respects, the office block has not been built in accordance with the 1957 planning permission.
It remains to consider the implications of these facts. I am quite satisfied on the evidence, that the applicants real grievance is the building of any large office *25 block on this site. Had the office block been built precisely in accordance with the 1957 planning permission it would have been even more objectionable to the applicants as the 1957 permission contemplated a building of greater capacity than the present structure. I am also satisfied that the applicants objective in bringing the present proceedings is to get a hold over the developer in order to ensure that the office block, when completed, will be less objectionable to them and more in accordance with modern concepts of the proper planning and development of the area.
The respondents rely upon the fact that the applicants have suffered no damage as a result of any departure on the respondentss part from the 1957 permission. Moreover they say that the applicants were slow in applying to the court for an injunction. By the time the first application was made on 6 April last the building was already five storeys high, and is now seven storeys high. On the other hand the circumstances of the case were unusual. When Messrs Avenue Properties Ltd. had purchased Kingram House they had searched, in the normal course for planning permissions affecting adjoining properties. A search failed to reveal the 1957 planning permission, as it was not at that time necessary to register planning permissions. When, therefore, Messrs Avenue Properties Ltd were informed some time in the middle of November 1980, by their lessees Messrs Desmond McGreevy and Partners, that development was taking place on the adjoining property they were at a loss to know how this could be. They sought architectural advice and later legal advice but it took some time to sort out the planning position and, of course, they could not know that the office block was not being built in accordance with the planning permission until the building itself had been partially constructed. Moreover, their position was made more difficult by reason of the loss of the file in the planning office.
On 18 March 1981 the applicants were advised by their architect that the respondents had submitted revised plans to Dublin Corporation and that these plans showed that the basement had been omitted and that the two projections close to the applicants property were also to be omitted. Meanwhile counsel had been consulted on 11 March and on 27 March the entire matter was reviewed by the board of the applicant company which decided to institute the present proceedings. Meanwhile the building had progressed with extraordinary speed and was five storeys high at the date of the initial application 6 April. Under these circumstances I do not think the applicants can be convicted of undue delay.
I am, however, satisfied that the applicants have suffered no quantifiable loss as a result of any divergence between the building as constructed and the building as planned. Messrs Avenue Properties Ltd have stressed that the fact that the respondents office block is nearer to Kingram House than shown in the 1957 plans limits their scope for the development of their own property. I do not attach much weight to this submission having regard to the fact that the projections must now be omitted; that there are still 33 years to run on their lease of the property to Messrs McGreevy and Partners; and having regard to their own contention that the planning authority would be unlikely to grant permission for an office block in this area in the event of a new application being made today.
However, I am also satisfied that an applicant for an order under s.27 of the 1976 Act does not have to show that he has suffered any damage peculiar to himself. The section contains the following words: The High Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land , by order prohibit the continuance of the development or unauthorised use.
The section does not on its face distinguish between an application by a planning authority and an application by any other person. It seems clear therefore that the intention of the section is that the Act should be policed not only by the planning authority but also by the individual citizens whether or not they have an interest in the lands. Clearly the planning authority would not have to show that it has suffered any loss in order to support an application for an injunction and, as previously stated, the section does not on its face make any distinction between an application brought by a planning authority and an application brought by any other person. It appears to me therefore that it is not a precondition of bringing an application under s. 27 that the applicant should have suffered or anticipated any loss peculiar to himself.
However, so far as the High Court is concerned the order is discretionary. The term injunction is not used in s. 27 but it is clear that the order contemplated by the section is an order in the nature of an injunction whether restraining or mandatory. The reference to interim and interlocutory orders in s. 27 sub-s. 3 appears to reinforce this interpretation. It seems to me therefore that the High Court in exercising its discretion under s. 27 should be influenced, in some measure, by the factors which would influence a Court of Equity in deciding to grant or withhold an injunction.
At the same time the jurisdiction under s. 27 is peculiar in that the applicant need have no interest in the land the subject matter of the application and, it would appear, need have suffered no damage beyond such damage as all citizens suffer when the Planning Act is broken and public amenities impaired. From the foregoing it would appear that applicants under s. 27 could range from a crank or busybody with no interest in the matter at one end of the scale to, on the other end of the scale, persons who have suffered real damage through the unauthorised development or who, though they have suffered no damage peculiar to themselves, bring to the attention of the court outrageous breaches of the Planning Act which ought to be restrained in the public interest. In these circumstances it appears to me all the more important that the court should have a wide discretion as to when it should and when it should not intervene.
The applicants say that the respondents are the authors of their own misfortunes. They refer to the correspondence passing between the respondents and Dublin Corporation and in particular to a letter written by the principal planning officer to the respondents architects on 5 December 1980. The letter is headed Re Kingram Place/Leeson Close and reads as follows;
Dear sirs,
I wish to refer to your letter of the 27th ult. in connection with proposed development at the above address. The drawings submitted have now been examined in detail by the Dublin Planning Officer and he wishes you to be advised that the development *27 proposed in these drawings is materially different from that which received planning permission in 1957.
Should it be intended to proceed in accordance with the amended plans it should be noted that full planning permission would be required to cover the revised scheme. Several complaints have been received in this Department in connection with alleged unauthorised development on this site. An investigation by the Area Planning Inspector revealed that site development works are still at an early state. I wish to inform you that should development take place on the site which is not strictly in accordance with the planning permission granted in 1957, it will be necessary for the planning authority to initiate legal and/or enforcement proceedings under the Local Government (Planning and Development) Acts, 1963 and 1967.
To this letter the respondents architect replied as follows:
Dear sirs,
We are in receipt of your letter of the 5th inst. in respect of the above development and are at a loss as to how the drawings we have recently submitted to you were materially different to those which had received permission in 1957.
We would be pleased if you would clarify this.
Yours sincerely.
On 19 December 1980 the planning authority replied as follows:
Dear sir,
I wish to refer to your letter dated 10 December 1980 in connection with development at the above site. I wish to confirm that, as explained to you on the telephone by Mr J. B. ODea, Development Control Assistant, Grade I, there are a large number of discrepancies between the plans which received planning permission in 1957 and the new drawings submitted with your letter of 27 November 1980 which make the development materially different. These discrepancies include differences in the elevations and the outline of the block and the roof outline and penthouse/super-structures are altered.
The Dublin planning officer is of the opinion that these are major differences and that planning permission will have to be obtained for the proposed revised development.
On 11 February 1981 the respondents architects wrote informing the planning officer that the respondents proposed to omit the basement contemplated in the 1957 permission and added:
Due to the proximity of the building to the north west boundary, our structural consultants have advised against building the projections on this face of the building so as not to undermine the structure of the adjacent building.
The planning officer again wrote back on 9 March 1981 saying:
I refer to your letter of 11 February 1981 in connection with the above. I wish to inform you that, as advised earlier, the development as now proposed would be materially different to that approved in 1957, and would require a fresh planning permission.
Neither side in the present case has called anybody from the planning office to give evidence before me. I can, accordingly, do no more than note the position of the planning officer as revealed in correspondence and note also that it was, *28 presumably, this correspondence which led to the respondents making their further planning application on 6 April 1981.
I must, however, decide the case on the basis of the evidence presented before me. From this I am satisfied that the respondents have placed themselves formally in the wrong in that the building as constructed differs from the building for which permission was given in 1957 in at least three respects. The line of the building has been moved some few feet towards Kingram House; the projections have been omitted and cannot now be added; and the basement has been omitted. But I cannot see that the applicants are in any way adversely affected by these divergencies between the building as constructed and the building as planned in 1957. Indeed the effect of the changes appears to have been to reduce the floor area of the building by some 8,000 square feet. Likewise while it seems probable that the planning authority would not today authorise the building of an office block of this size in this area in the event of a totally new planning application being brought, nevertheless, I must accept that the respondents are entitled to the benefit of the planning permission of 1957 and I must attach weight to this factor notwithstanding the fact that they have placed themselves formally in the wrong by not adhering strictly to it. Again I cannot see that public amenities are in any way damaged by the difference between the building as constructed and the building as planned in 1957.
I should stress that I make these comments only on the evidence, and with respect to the case, as presented before me. They are not meant in any way to inhibit any decision which the planning authority may have to make in relation to this matter. The planning authority may be aware of other discrepancies or infringements of which I am ignorant and, indeed, even the matters which have been proved before me may have further and consequential implications for the building of which I am not now aware.
In all the circumstances of this case I think it would be unduly harsh and burdensome to grant an injunction notwithstanding the fact that the respondents are formally in the wrong. I think the fairest thing to do is to give them an opportunity to put themselves right with the planning authority. If, however, the planning authority, after full investigation, decides that the building as constructed is materially different from the building authorised by the 1957 permission and further decides, in all the circumstances of the case, to withhold planning permission, a different situation would arise.
In all the circumstances of the case it appears to me that the fairest thing for me to do is to refuse to make any order under s.27 now but to adjourn the application generally and give the applicants liberty to apply in the event of the respondents failing to obtain planning permission for what has been done.
Dublin CC v Matra Investments Limited
County Council of the County of Dublin v Matra Investments Limited, Lithgow and Thompson (Ireland) Limited and John Bosco O’Brien
The High Court
28 July 1978
[1980] 114 I.L.T.R 102
Finlay P.
Finlay P.:
I am satisfied of two things:—
(i) The provisions of section 31(1) of the 1963 Act concerning the five year limit on prosecutions under that section cannot, by implication, be incorporated into section 27 of the 1976 Act. No canon of construction permits this — the section contains no express time limit, and as it was enacted subsequent to the 1963 Act, it cannot be implied that the time limit applies in the case of section 27 proceedings. Section 27 gives a right to injunct an unauthorised use no matter how long it has been in operation, provided it commenced after the appointed day which was the 1st October, 1964.
(ii) The length of time for which a use may have been continued may affect the granting of an injunction or the form the injunction takes.
Section 27 is designed to enforce urgently and in a powerful manner, the provisions of the Planning Acts, It was intended by the legislature to be ancillary to the enforcement procedures under the 1963 Act. The County Council have asked me to enforce the law against the respondents, not to penalise them. In my view the Order should be made if I am satisfied there is unauthorised use of the land, unless exceptional reasons are shown by the respondents. Such reasons might be a merely technical breach of the Planning Acts, unreasonable delay in bringing the application or it might be that the user was a mere inadvertence on the part of the respondents.
In so far as the use of the lands in question here is concerned, the use can and does gravely affect the amenities of the area.
I am satisfied that the third-named respondent, having bought the lands in 1972, has, at all times, been aware that he has only the right to use the lands for agricultural purposes. It is quite clear that Mr. O’Brien took the law into his own hands and that this has continued since 1972. Indeed, he made a lease of part of the lands in 1977 to the second-named respondent without informing Lithgow & Thompson (Ireland) Ltd., of the illegality and thereby he greatly increased the burden of traffic in the locality. An appeal by Mr. O’Brien to An Bord Pleanala against a refusal of Dublin County Council to grant him planning permission in respect of the lands, was rejected by the Board on the blanket ground that “it is an objective of the Planning Authority, as expressed in the County Development Plan, to reserve the area for the further development of agriculture. This policy is considered reasonable and a proposed development would be in conflict with it.”
Unless there is a total turn about, the Board will not grant permission in view of that refusal. However, on the pretence that a planning appeal was pending, nothing has been done by the respondent, and letters written by the County Council to him in February and July, 1978, were ignored.
In my view, the respondents have no merits, and it is clear that there has been an unauthorised user by Lithgow & Thompson (Ireland) Ltd. since the 7th July, 1978.
I am not prepared to grant an Injunction to require removal of the items on the land, but will allow Lithgow & Thompson (Ireland) Ltd., until the 6th January, 1979, to cease using the land.
The Injunction will be in two parts:—
(a) There will be an Injunction against all three respondents against causing or *103 permitting any container traffic to enter upon or leave the site otherwise than via the southern end, and
(b) An Injunction against any container traffic entering or leaving the lands after the 5th January, 1979. I award the costs of the proceedings to the County Council.