Esat Digifone Ltd v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 25 January 2002
• Neutral Citation: [2002] IEHC 13
• Court: High Court
• Docket Number: 506 Sp/2000,[2000 No. 506 SP]
• Date: 25 January 2002

[2002] IEHC 13

THE HIGH COURT

Kearns

506 Sp/2000

ESAT DIGIFONE LTD v. SOUTH DUBLIN CO COUNCIL

IN THE MATTER OF SECTION 5 OF THE LOCAL GOVERNMENT (PLANNING

AND DEVELOPMENT) ACT, 1963, AND

IN THE MATTER OF A REFERENCE TO AN BORD PLEANÁLA PURSUANT TO

THE SAID SECTION

BETWEEN

ESAT DIGIFONE LIMITED

APPLICANT

AND

SOUTH DUBLIN COUNTY COUNCIL

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SCHEDULE II PART 1 CLASS 29(e)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 9

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 10

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1997 SI 78/1997

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

ORANGE LTD V DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

CARRICK HALL HOLDINGS V DUBLIN CORPORATION 1983 ILRM 268

REHABILITATION INSTITUTE V DUBLIN CORPORATION UNREP BARRON 14.1.1988 1988/3/626

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

GALLIGAN IRISH PLANNING LAW AND PROCEDURE 1997 60

GALWAY CO COUNCIL V LACKAGH ROCK 1985 IR 120

VISCOUNT SECURITIES LTD, RE 112 ILTR 17

KILDARE CO COUNCIL V GOODE UNREP MORRIS 13/6/1997 1998/8/2312

CAIRNDUFF V O'CONNELL 1986 IR 73

DUBLIN CORPORATION V REGAN ADVERTISING 1986 IR 171

BURDLE V SECRETARY FOR STATE FOR THE ENVIRONMENT 1972 1 WLR 1207

MONAGHAN CO COUNCIL V BROGAN 1987 IR 33

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Development

Telecommunications - Role of An Bord Pleanála - Change of use -

Statutory interpretation - Whether work exempted development - Whether "works" and "material change of use" mutually exclusive concepts - Whether hearing before High Court "de novo" hearing - Whether material change of use had taken place - Local Government (Planning and Development) Act, 1963 sections 4 (1) (g) and 5 - Local Government (Planning and Development) Regulations, 1994 (2000/506 Sp - Kearns J - 25/1/02)

Esat Digifone Ltd v South Dublin County Council - [2002] 3 IR 585 - [2002] 2 ILRM 547

Facts: The plaintiff, a telecommunications company, had negotiated with a public house for the erection of telecommunications equipment. The plaintiff believed that the work was exempted development under section 4(1)(g) of the Local Government (Planning and Development) Act, 1963. A number of local residents objected to the development and the respondent refused planning permission for the development. The plaintiff referred the matter to An Bord Pleanála and an inspector concluded that the antennae and installation equipment were "works" and that development had been carried out. An Bord Pleanála determined that the development was not exempted development. The plaintiff submitted that An Bord Pleanála was not entitled to reformulate the questions posed. In addition it was argued that the terms "works" and "use" were two concepts which were mutually exclusive. It was submitted that the placing of telecommunications equipment was "works" consisting of a once-off operation and thus exempt. This exemption could not be lost by then determining that a material change of use had taken place.

Held by Mr. Justice Kearns in refusing the relief sought. An Bord Pleanála was entitled to take into account any possible "material change of use" and this issue had been fully argued in submissions. An Bord Pleanála in making its decision was entitled to consider whether a development consisting of either works or a material change of use or both had taken place. The activity associated with the placing and utilisation of telecommunications equipment fell to be considered more properly as a change of use. There could be no doubt in the instant case that there had been a change in the character of the use. It was not ancillary to the primary use of the premises as a licensed premises. An Bord Pleanála had correctly decided the reference under section 5 Local Government (Planning and Development) Act, 1963 that a material change of use had taken place.

1 JUDGMENT of Mr. Justice Kearns delivered the 25th day of January, 2002

2 The Plaintiff for the purpose of its business negotiated a license with the owners of the Pines Public House on Whitehall Road in the City of Dublin in September, 1999, on foot of which in October, 1999 the Plaintiffs placed telecommunications exchange equipment within an existing storage building to the rear of the said premises and also placed two flat panels and one link dish antennae to a pole which in turn was mounted on the gable of a return building to the rear of the said premises.

3 The work was carried out by Esat Digifone in the belief that it was exempted development under Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963which provides that exempted development for the purposes of the Act shall be:-

"Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures."

4 The South Dublin County Council Development Plan, 1998 applies to the site. The site which lies within a cluster of commercial properties is zoned LC, the objective of which is "to protect, provide for and/or improve local centre facilities".

5 The zoning outside the cluster of commercial properties is A1, the objective of which is "to protect and improve residential amenity".

6 The site itself is located in a small local centre within a generally residential area in the South Dublin suburbs. The public house is part of a small parade of business premises and shops facing onto Whitehall Road.

7 The existing public house is two stories high with a pitched roof. The adjoining premises to the north east, Glowtherm Limited, is a single-storey flat roofed structure approximately 3.5 metres high. There is a service lane to the rear of Glowtherm and the public house and beyond that there are residential properties which face onto Whitehall Park and Whitehall Close. These residential properties back on to an access laneway to the rear of the houses. There is a clear view of the antennae from this laneway but a building to the rear of the public house, which is approximately 8.5 metres high to its ridge, partially blocks the view of the rear of the pub and the dish.

8 The equipment and antennae in question consist of:-

9 (a) Telecommunicational equipment which occupies an area within a 6 M ² store to the rear of the premises.

10 (b) Two flat-panel GSM antennae which are attached to a pole which in turn is mounted on the gable of a return building to the rear of the pub. The ridge of the return building is approximately 450 mm below the ridge of the main public house building which fronts onto Whitehall Road. The bottom of the two antennae are approximately 600 mm above the ridge of the return. These antennae can be seen from Whitehall Road when one approaches the pub from the north-east direction. They can also be seen from Whitehall Park and from the rear gardens of the houses facing onto Whitehall Park and Whitehall Close.

11 (c) A 600 mm diameter dish. This is located at eaves level on the gable of the return and is only visible from the rear of the building.

12 A number of local residents objected to the development, following which South Dublin County Council by letter dated 22nd October, 1999 advised Esat Digifone that in its opinion the works were not exempted and consequently they would have to be removed unless planning permission was granted for them.

13 On the 19th July, 2000, the Applicants applied for retention in respect of the antennae and equipment, but permission was refused. This refusal was the subject matter of an appeal by the Applicant to An Bord Pleanála which, however, was later withdrawn.

14 The Plaintiff instead opted to pursue a reference under Section 5 of the Local Government (Planning and Development) Act, 1963which provides:-

15 2 "(1) if any question arises as to what, in any particular case, is or is not development or exempted development, the question shall be referred to and decided by An Bord Pleanála.

16 (2) where a decision is given under this Section, an appeal to the High Court from the decision may be taken at any time within the period of three months after the giving of the decision or such longer period as the High Court may in any particular case allow."

17 The format of the questions submitted under Section 5 was as follows:-

18 (a) Whether the placing of antennae for a GSM base station at the rear of an existing two-storey premises, the Pines Public House, Whitehall Road, Perrystown, Dublin is exempted development under Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963.

19 (b) Whether the placing of telecommunication exchange equipment within an existing storage building at the rear of the Pines Public House, Whitehall Road, Perrystown, Dublin is exempted development under Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963.

20 However, the questions as submitted were reformulated by the Board to be answered in the following way:-

"Whether the placing of antennae for GSM Base Station at the rear of an existing two storey premises at the Pines Public House, Whitehall Road, is or is not exempted development and whether the placing of telecommunication's exchange equipment within an existing storage building at the rear of the Pines Public House, Whitehall Road, Perrystown is or is not exempted development."

21 Mr. Niall McDonnell was the relevant Planning...