Aer Rianta CPT v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 25 June 2002 |
| Neutral Citation | [2002] IEHC 69 |
| Court | High Court |
| Docket Number | No 225 JR/2000 |
| Date | 25 June 2002 |
[2002] IEHC 69
THE HIGH COURT
JUDICIAL REVIEW
BETWEEN
and
and
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(8)
AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S23(1)(b)
AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S24(1)(b)
IRISH AVIATION AUTHORITY ACT 1993
LOCAL GOVT (PLANNING AND DEVELOPMENT) REGS 1994 SI 86/1994
ART 32(1)(h)
O'KEEFE V BORD PLEANALA 1993 1 IR 39
LOCAL GOVT (PLANNING & DEVELOPMENT) NO 2 REGS 1995 SI 75/1995
VILLAGE RESIDENTS ASSOCIATION LTD V BORD PLEANALA 2001 1 IR 441
ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223
KEEGAN V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642
Planning and environment - Judicial review - Certiorari -Development permission granted - Appeal to An Bord Pleanála by objector failed - Objection on grounds of safety - Development near airport runway - Whether development constituted an unacceptable risk to safety - Local Government (Planning and Development) Act, 1963 (as amended) section 82 (3A) and (3B)
Facts: Planning permission had been granted for the development of a car park and associated development in an area within what is called a red (safety) area. In this instance the development was within the approach area of a runway at Dublin Airport. The applicant objected on grounds of safety that the proposed development was an unacceptable risk
to safety. They lost their appeal to An Bord Pleanála and sought Judicial Review of the Bord’s decision.
Held An Bord Pleanála in reaching its decision considered the opinion of the Irish Aviation Authority who were statutory responsible for the safety of aircraft and safe and efficient navigation. This body did not object to the proposed development. The court found that as there was no material contravention of the Development Plan the Bord were entitled to reach the decision in dismissing the objection.
delivered the 25th day of June, 2002.
On the 16th August, 1999, Fingal County Council granted a planning permission to Gannon Homes Limited for a development consisting of a car park with 3,500 car parking spaces together with associated facilities. These facilities included bus shelters, hard standing for services vehicles, a biocycle waste water treatment and staff facilities. The development is to be located at Turnapin Great, Swords Road (Old Airport Road), Santry, Co Dublin.
Aer Rianta appealed the decision of Fingal County Council to An Bord Pleanála.
On the 9th March, 2000 An Bord Pleanála made its decision on the appeal. It decided to grant permission for the development subject to eight conditions.
These proceedings were commenced on the 5th May, 2000 by the issue of a notice of motion seeking leave to apply for judicial review of the decision of An Bord Pleanála. That application was heard over three days in October, 2000 and was ruled upon by Butler J. on the 8th November, 2000. He granted the applicant leave to apply for judicial review but did so on just one of the nineteen grounds which had been advanced by it. All other grounds were rejected.
This hearing has accordingly proceeded on that single ground to which I will turn in more detail in a moment.
The principal relief sought is Certiorari directed to the decision of An Bord Pleanála of the 9th March, 2000. Declaratory relief is also sought to the effect that that decision is null and void and of no effect together with a declaration that the respondent erred in law in failing to attach any or any proper weight to the submissions and/or observations of the applicant in relation to safety and/or land use allocation in reaching its decision. A declaration is also sought that the respondent is required to have regard to the opinion and/or views of the applicant in relation to safety issues and/or land use allocation in determining planning appeals which involve or might involve efficient development affecting the operation, safety, management and development of airports.
The sole ground which the applicant may rely upon in support of its claim is that set out at paragraph 17 of the statement grounding the application for judicial review. It reads:
"The respondent erred in law in failing to have proper regard to the provisions of the planning authority's development plan. In particular, the respondent failed to have regard to the status of red (safety) areas under the said plan, or to the requirements to have regard to the observations of the applicant as an airport operator under the said plan. Further, or in the alternative, the respondent erred in failing to give reasons for departure from the provisions of the development plan and/or granting planning permission in material contravention of the development plan. In circumstances where An Bord Pleanála exercises its power under s. 14(8) of the Local Government (Planning and Development) Act,1976(as it did in this case) it must give special or additional reasons for so doing; the respondent failed to do so in this case."
Notwithstanding that this is the only ground which has to be considered, this hearing went on for many days. One reason for that was that the same evidence as was used for the leave application was relied on even though eighteen of the grounds to which it was directed were irrelevant.
The applicant has at all times opposed the planning permission sought by Gannon Homes Limited. It has done so principally on the ground that the site for development is within what is called a red (safety) area of the approach to a runway at the airport known as runway 16/34. A red (safety) area is the area at the end of a runway strip where development is restricted in the interest of the safety of aircraft passengers and the public. The proposed development is located in proximity to the southern end of runway 16/34 at Dublin airport, lying about 300 meters from the end of that runway.
It is the location of the proposed development which has caused concern to the applicant. It is of the view that the proposed development presents an unacceptable risk to safety.
The phrase red (safety) area is a term which describes areas around Irish airports within which development is restricted in the interests of the safety of aircraft passengers and the public. The use of the word"red" has its origin in the colour used to delineate the areas on the relevant development plans. Safety areas of this type are to be found in the vicinity of airports throughout the world.
It is appropriate that the applicant should be concerned with questions touching upon the safety of the airport.
Under the provisions of the Air Navigation and Transport (Amendment) Act,1998the applicant is charged with the efficient operation safety, management and ongoing operation and development of Dublin airport. Section 23(1)(b) of the Act requires inter alia that there be included in the memorandum of association of the applicant an objects clause to the effect that Aer Rianta would have the power to "take all proper measures for the safety, security, management, control, regulation, operation, marketing and development of its airports". Section 24(1)(b) of that Act obliges the applicant to "take such steps either alone or in conjunction with other persons as are necessary for the efficient operation, safety, management and development of its airports".
Fingal County Development Plan of 1999 consists of both a written statement and fourteen maps. The written statement points out that it is essential that both it and the maps be referred to in considering the proper planning and development of the area. It states that the maps contain the details of local objectives and that it is essential that particular attention be given to them when considering the local objectives. Dublin airport is identified in map no. 1 and map no. 8.
Insofar as land use policy is concerned page 38 of the written statement of the Development Plan makes it clear that"car park/commercial surface" within an agricultural zone is"open for consideration". The plan defines the term"open for consideration". It is defined as meaning"the use is generally acceptable except where indicated otherwise and where specific factors which may be associated with the use (e.g. scale) would result in the proposed use being contrary to the zoning objective".
A large part of the applicant's case consists of an assertion that the grant of planning permission in this case constituted a material contravention of the development plan. If such be the case then clearly the planning authority in the first instance could not have granted it without first going through the statutory procedure which is prescribed in such an event. Whilst it is accepted that An Bord Pleanála is entitled to depart from the development plan (see section 14(8) of the Local Government (Planning & Development) Act,1976) it is said that if it does so it must give special or additional reasons for so doing. As it allegedly failed to do so in the present case its determination ought to be quashed.
Neither the planning authority nor An Bord Pleanála appear to have considered that the development for which they were granting permission constituted a material contravention of the 1999 development plan. That is not of course the last word on the matter by any means but it is a little surprising that if the applicant were of the belief that the planning authority had granted a permission which materially contravened the development plan that it did not at that stage seek to have its decision quashed...
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