DAA Plc v Fingal County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 17 October 2024
• Neutral Citation: [2024] IEHC 589
• Court: High Court
• Docket Number: [H.JR.2023.0000383]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act, 2000 As Amended

Between

DAA Plc

Applicant

and

Fingal County Council

Respondent

[2024] IEHC 589

[H.JR.2023.0000383]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning decision - Noise Insulation - Dublin Airport - Sports Complex

The development plan to zone a sports complex was challenged on a number of grounds. These grounds included; the inclusion of PA CFI 8.1 meant the plan was invalid, unlawful, ultra vires, irrational and/or unreasonable; it was contrary to section 3(7)(a) of the Aircraft Noise (Dublin Airport) Regulation Act 2019; the plan failed to apply the Balanced Approach as laid out in PA CFI 8.1; the inclusion of PA. CFI 8.1 breached section 9(6) of the Planning and Development Act; the inclusion of PA CH 8.1 was inconsistent and/or different from the Airport Noise Competent Authority’s rules; Section 8.5.7 caused the councils power to be invalid, void, unlawful and/or ultra vires. Court concluded that there would be; an order of certiorari quashing part of the development plan, a declaration that the lands concerned were to be treated as unzoned; there would be a hearing for costs; the matter would be listed on Monday 4th November 2024 to confirm the judgment.

Decision: development plan quashed.

JUDGMENT of Humphreys J. delivered on Thursday the 17th day of October 2024

1 . In making the development plan, the members of the council here voted to zone a sports complex (operated by ALSAA at Dublin Airport) as Community Infrastructure ( CI), whereas the landowners, daa, wanted it zoned Dublin Airport ( DA). The development plan is challenged on a number of grounds, and on a separate basis regarding an issue of noise insulation, but the critical question is whether extraneous non-planning issues were considered in making the ALSAA zoning decision.

Facts

2 . The geographical context and the basic sequence of steps for the adoption of the plan is set out in ( [2024] IEHC 588 Friends of the Irish Environment v. Minister for Housing Unreported, High Court, 17th October 2024) and the two judgments should be read together. The following are particularly relevant to the present case.

3 . Dublin Airport hosts among other things a sporting facility, ALSAA (originally the Aer Lingus Social and Athletics Association), which began in 1948 as a facility for Aer Lingus staff but is now open to the general public. It consists of two properties, a main complex and a pool.

4 . The pool is zoned High Technology ( HT) and the use of that land for recreation isn't expressly permitted or prohibited by the uses set out in the development plan, so development is considered on a case by case basis.

5 . There has been an ongoing dispute between the owners and occupiers of the site. As mentioned, daa are the owners of this landholding. The current operators, ALSAA, are in place under licence. The previous licence expired on 30th April 2022 and they had been given a notice to vacate (expiring May 2023). The licence has since been extended. Daa informed the council that:

“It is daa's intention (as confirmed several times with all parties) to retain the facilities as sports and leisure facilities and daa's priority is to ensure continued use by existing members. There is currently no intention to close the facilities but to review the functionality of the facilities and the operator into the future. The opportunity for the future operation is being offered to all interested 3rd parties (including the existing operator ALSAA) — to ensure the best outcome for the facilities into the future.”

6 . The primary zoning applicable to Dublin Airport was DA, which the adopted plan defines as follows:

“ZONING OBJECTIVE ‘DA’ DUBLIN AIRPORT

Objective

Ensure the efficient and effective operation and development of the airport in accordance with an approved Local Area Plan.

Vision

Facilitate air transport infrastructure and airport related activity/uses only (i.e. those uses that need to be located at or near the airport). All development within the Airport Area should be of a high standard reflecting the status of an international airport and its role as a gateway to the country and region. Minor extensions or alterations to existing properties located within the Airport Area which are not essential to the operational efficiency and amenity of the airport may be permitted, where it can be demonstrated that these works will not result in material intensification of land use.

Air Transport Infrastructure includes: aircraft areas, air traffic control/tower, ancillary health, safety and security uses, aprons, cargo handling, maintenance hangers, meteorology, retail – airside/duty free, runways, taxiways, terminals and piers.”

7 . DA does not encompass sporting facilities, so a general objective not specific to any given lands applies:

“1.3 Non-Conforming Uses

Throughout the County there are uses which do not conform to the zoning objective of the area. These are uses which were in existence on 1st October 1964, or which have valid planning permissions, or which are un-authorised but have exceeded the time limit for enforcement proceedings. Reasonable intensification of extensions to and improvement of premises accommodating these uses will generally be permitted subject to normal planning criteria.

Objective ZO3 – Non-Confirming Uses

Generally, permit reasonable intensification of, extensions to and improvement of premises accommodating non-conforming uses, subject to normal planning criteria.”

8 . At the issues paper stage, daa sought an expansion of DA zoning to additional lands. This wasn't accepted by the chief executive ( CE). We aren't concerned with the merits of that for present purposes.

9 . At the draft plan submission stage, ALSAA made a submission which included the following:

“ALSAA Swimming Pool

ALSAA Swimming Pool, located within the campus at Dublin Airport, has been a part of the social, sporting and cultural fabric of the communities within our County since the late 1960's.

Our pool has provided learning opportunities to generations of children and adults throughout Fingal; those who have learnt to swim, learned to compete, completed lifesaving and water safety courses, as well as those who completed their aviation industry practical swim skill courses, along with the generations of swimming teachers and coaches who have completed their studies at our facility.

In the absence of public swimming pools within Fingal, the ALSAA pool has been a centre of aquatic learning for over a half a century, catering to the needs of a wide range of users across the county. We have 6,700 members in ALSAA, while we also provide facilities for schools and colleges, groups with special needs, Special Olympics athletes, Master swimmers, competitive clubs, sub-aqua enthusiasts, aqua aerobics groups, parent & toddler swim groups and an endless list of other groups and individuals, in both structured and casual formats.

We recognise our pool as an essential and long-standing asset, absolutely dedicated to the people and communities of Fingal. We earnestly recommend to Fingal County Council that our pool building and the associated car-parking area (as outlined in blue on the attached map) should maintain its current use in the future. We strongly recommend, on behalf of our own members, as well as on the part of all our pool users, current and future, that Fingal County Council should ensure and enshrine the continued existence of our pool, by way of appropriate zoning or through any other means available to the Council.

We at ALSAA have provided sporting, social and cultural opportunities to and for the people and communities of Fingal, on a not-for-profit basis, for over fifty years. In an ever-changing environment, through the social and economic upheaval of the last half century, in the time of challenge that we all faced through the Covid 19 pandemic and with a focus to the challenges that lie ahead, it is our mission to continue to serve our community for the next fifty years. We look forward to achieving our goals in collaboration and partnership with Fingal County Council, as well as with all of the bodies involved in the successful, safe and sustainable operation at Dublin Airport.”

10 . ALSAA main complex also made a submission:

“ALSAA Main Complex, located in Toberbunny (opposite the Airport Oil Tanks) has been a part of the social, sporting and cultural fabric of North County Dublin, used by thousands of Airport staff members and Fingal residents since 1982 when the Bowling Alley was built and since 1985 when the Main Complexes multiple facilities and the grounds attached to it were opened. Prior to 1985, we were located where hanger 6 is now from 1971.

Our indoor and outdoor sporting and leisure facilities cater for a wide-ranging customer base, including Badminton, Basketball, Volleyball, Table Tennis, Taekwondo, Gymnastics, Indoor Football, Bridge, Chess, Darts, Snooker, Drama, Various Dancing Classes, Gym & Fitness Classes while our outdoor facilities cater for Hockey, Athletics, Soccer, Lawn Bowls, Tennis, Rugby, Softball and Cross Country.

In addition to our own members, we have Special Needs Groups, Primary and Secondary Schools, Clubs, Businesses, Special Olympics, Irish Transplant Association, and many more using our facilities.

These facilities have enabled our Clubs and individuals to represent Ireland and hopefully will continue to do so long into the future.

We recognise our Complex as an essential and long-standing asset, absolutely dedicated to the people and communities of Fingal. We earnestly recommend to Fingal County Council that our complex building and land surrounding it (as outlined in red on the attached map) should maintain its current use in the future. We strongly recommend, on behalf of our own 6,700 members, as well as on the part of all of our users,...