Córas Iompair Éireann and Another v an Bord Pleanála and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 19 June 2008
• Neutral Citation: [2008] IEHC 295
• Court: High Court
• Date: 19 June 2008

[2008] IEHC 295

THE HIGH COURT

[No. 243 J.R./2006]

Córas Iompair Éireann (CIE) & Iarnród Éireann v Bord Pleanála

JUDICIAL REVIEW

BETWEEN

C ÓRAS IOMPAIR ÉIREANN AND IARNRÓD ÉIREANN - IRISH RAIL

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

SLIGO COUNTY COUNCIL

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S57

PLANNING & DEVELOPMENT ACT 2000 S57(1)

PLANNING & DEVELOPMENT ACT 2000 S12(3)(A)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001

PLANNING & DEVELOPMENT ACT 2000 S4

PLANNING & DEVELOPMENT ACT 2000 S4(1)(H)

PLANNING & DEVELOPMENT ACT 2000 S4(2)

PLANNING & DEVELOPMENT ACT 2000 S4(1)

PLANNING & DEVELOPMENT ACT 2000 S58(1)

PLANNING & DEVELOPMENT ACT 2000 S58(2)

PLANNING & DEVELOPMENT ACT 2000 S59

PLANNING & DEVELOPMENT ACT 2000 S60

PLANNING & DEVELOPMENT ACT 2000 S69

PLANNING & DEVELOPMENT ACT 2000 S70

PLANNING & DEVELOPMENT ACT 2000 S71

PLANNING & DEVELOPMENT ACT 2000 S80

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PARA 8.22

PLANNING & DEVELOPMENT ACT 2000 S87(1)

MAYE v SLIGO BOROUGH COUNCIL UNREP CLARKE 27.4.2007 2007/39/8174

CORK CO COUNCIL v SHACKELTON UNREP CLARKE 19.7.2007 2007/11/2182

GLENKERRIN HOMES v DUN LAOGHAIRE-RATHDOWN CO COUNCIL UNREP CLARKE 19.7.2007 2007/11/2182

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S5(1)(B)

KENNY v BORD PLEANALA & ORS (NO 1) 2001 1 IR 565

HAMILTON v HAMILTON 1982 IR 466

PLANNING AND ENVIRONMENTAL LAW

Protected structures

Upgrading of railway tracks and signals - Commencement of works - Notice proposing addition of railway station to record of protected structures - Challenge to decision that mast not exempted development - Requirements for protection of protected structures - Exemptions for developments connected with railway lines - Whether exemption removed where works carried out to proposed protected structure - Construction of legislation - Literal interpretation - Whether different construction mandated by Interpretation Act - Whether section obscure or ambiguous - Whether literal interpretation would be absurd or fail to reflect plain intention of legislature - Status of development commenced as exempted development - Prospective application of statute - Presumed intention behind legislation - Fairness - Appropriate approach where legislation silent - Whether single integrated development - Whether preclusion of completion unjust - Maye v Sligo Borough Council [2007] 4 IR 678, Cork County Council v Shackleton (Unrep, Clarke J, 19/7/2007), Glenkerrin Homes v Dun Laoghaire Rathdown Co Co (Unrep, Clarke J, 26/4/2007), Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565 and Hamilton v Hamilton [1982] IR 466 considered - Planning and Development Act 2000 (No 3), ss 4, 5, 57, 59, 60, 69, 70, 71 and 80 - Planning and Development Regulations 2001 (SI 600/2001), class 23 - Decision quashed (2006/243JR - Clarke J - 19/6/2008) [2008] IEHC 295

CIE v An Bord Pleanála

Facts: A dispute arose as to the erection of a signal communication mast and whether or not the works were exempted development for the purpose of s. 5 of the Planning and Development Act 2000. Irish Rail contended inter alia that s. 57 of the Act of 2000 de-exempted the works, that the Station became a protected structure after work on the development had been commenced but not completed and that the decision of the Board was open to challenge on the merits. The issue arose as to the appropriate interpretation of the Act of 2000 and the interplay of ss. 5 and 57 of the Act.

Held by Clarke J. that the decision of the Board would be quashed but only on the grounds that the development had lawfully commenced and progressed to a significant extent during a time when it was exempted development that it would be unjust to preclude its completion. The Board was wrong to conclude that the development lost its exempted status. S. 5 of the Interpretation Act 2005 applied to s. 57 of the Act of 2000, such that the literal interpretation of the section had to be departed from on grounds of absurdity and thus the Board had adopted a correct interpretation of s. 57 of the Act of 2000.

Reporter: E.F.

1. Introduction

2 2 1.1 Ballymote Railway Station is situated in County Sligo on the Dublin to Sligo railway line. The applicants ("Irish Rail") have undertaken major works in the upgrading of the track and signalling along this line which is designed towards improving both safety and capacity. Amongst the works undertaken in that context were the erection of several masts for signalling purposes which are designed to ensure communication at all times between the central train control in Dublin and all locomotive drivers along the line. It is said that such communication is an integral part of the signalling system designed to ensure the orderly and safe running of trains along the route. It is also said that Ballymote Station was chosen for one such mast because it gave the necessary coverage for the operation of the signalling system.

3 3 1.2 In general terms the dispute which has now arisen is as to the planning status of the erection of the mast in question. That issue, in turn, involves the interaction of certain of the provisions of the Planning and Development Act 2000, ("the 2000 Act") concerning, on the one hand, exempted development and on the other hand protected structures. In circumstances which it will be necessary to set out in more detail in the course of this judgment, Irish Rail had embarked on a development involving the erection of the relevant mast when a process was put in train to have Ballymote Station declared a protected structure for the purposes of the 2000 Act. It will be necessary to refer to the relevant legalisation in some detail in due course. However, in general terms there are, as might be expected, limitations on the manner in which works can be carried out in or near protected structures. At the same time there are equally understandable provisions contained within the 2000 Act, and the regulations made under it, which exempt certain works from the need for planning permission. One such category of exempted development relates to works carried out in connection with the proper running of railway lines.

4 4 1.3 The issues in this case largely centre around the requirements for the protection of protected structures on the one hand and the exemptions given in respect of developments connected with railway lines on the other. A dispute arose between Irish Rail and the notice party ("Sligo County Council") as to the planning status of the works in question. Sligo County Council, in that context, referred the matter under s. 5 of the 2000 Act to the respondent ("the Board") for the purposes of seeking a declaration under that s. as to whether or not the works were exempted development. The Board came to the view that the works were not exempted development and declared accordingly. In these proceedings Irish Rail seek to challenge that decision of the Board. Against that general background it is necessary to turn now to the specific issues which arise.

2. The Issues

2 2 2.1 In essence Irish Rail put forward three sets of grounds as the basis for its challenge to the decision of the Board.

3 3 2.2 The first set of grounds concerns the proper interpretation of the 2000 Act, and in particular s. 57 of that Act. I will refer in due course to the relevant provisions of the section. However for these purposes it is sufficient to note that s. 57(1), in general terms, seeks to limit the extent to which the carrying out of works to a protected structure or a proposed protected structure can be exempted development. It is common case that, were it not for the fact that Ballymote Station became proposed as a protected structure, the works sought to be carried out by Irish Rail would be exempted development. The first issue, therefore, concerns the question of whether s. 57 has the effect of "de-exempting" works which would otherwise be exempted development when those works are carried out to a protected structure or a proposed protected structure. That issue turns on the proper construction of the relevant legislation to which I will turn in early course.

4 4 2.3 The second issue which arises concerns the fact that Ballymote Station became proposed as a protected structure after work on the development had been commenced but before such works were completed. In those circumstances it is argued on behalf of Irish Rail that, even if the construction which Irish Rail seeks to place on the legislation as a whole is incorrect (and that, therefore, works of the type involved, even though normally exempted, would not be exempted if carried out to a protected structure or a proposed protected structure) nonetheless, on the facts of this case, the works must be regarded as remaining exempted because the development had been commenced at a time when Ballymote Station was not proposed as a protected structure.

5 5 2.4 Finally, a third issue was raised both in the statement of grounds relied on by Irish Rail and in the written submissions filed, which suggests that the decision of the Board on the merits is open to challenge. In fairness to counsel for Irish Rail that aspect of the case was not pressed at the hearing. I will, therefore, deal with that matter very briefly at the close of this judgment.

6 6 2.5 There was no significant controversy between the parties as to the underlying facts which are relevant to these proceedings. In that context I turn first to those undisputed facts.

3. The Facts

2 2 3.1 Irish Rail commenced work on the development in early July, 2004. The overall development involved the erection of a radio mast and associated work approximately 82 metres from Ballymote Railway Station. The ancillary works involved the construction of a compound with palisade fencing...