Friends of the Irish Environment Company Ltd by Guarantee and Another v Minister for Housing, Local Government and Heritage and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 17 October 2024
• Neutral Citation: [2024] IEHC 588
• Court: High Court
• Docket Number: [H.JR.2023.0001047]

In the Matter of the Planning and Development Act 2000

Between

Friends of the Irish Environment Company Limited by Guarantee and SMTW Environmental Designated Activity Company

Applicants

and

The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Office of the Planning Regulator, Fingal County Council and DAA Public Limited Company

Notice Parties

[2024] IEHC 588

[H.JR.2023.0001047]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning – Development – Environment – Applicants challenging a direction of the first respondent – Whether the applicants had demonstrated a legal infirmity in the direction

Facts: The applicants, Friends of the Irish Environment Company Limited by Guarantee and SMTW Environmental DAC, challenged a direction of the first respondent, the Minister for Housing, Local Government and Heritage (the Minister), which removed text in a development plan that postulated inadequacy of noise insulation schemes relating to Dublin Airport. The central issue was whether the applicants had demonstrated either a legal infirmity in the direction or an unreasonableness that resulted in the decision falling outside the zone of permissible evaluative judgment on the part of the Minister.

Held by the High Court (Humphreys J) that: (i) while there were errors on the part of the Office of the Planning Regulator (the OPR) and the Minster in the wording of statutory documentation, they were insufficiently material to call the validity of the process into question - the core objections of the OPR and the Minister applied to both the original and amended version of the contested amendment; (ii) while the operative part of the direction as to the steps to be taken was sub-optimally worded, its effect was clear and the direction can be read in a manner that renders it valid; (iii) the reason given, that “[t]he inclusion of an objective in the Development Plan, which conflicts with and undermines these separate statutory provisions and processes, including the Noise Action Plan, is therefore inconsistent with National Policy Objective 65 of the National Planning Framework”, was not based on an error of law and insofar as it constituted an evaluative judgement as to the application of NPO 65, which on the facts had not been shown to fall outside the zone of legitimate planning judgement and evaluation by the Minister, and was a valid basis for the direction independently of any other reason; and (iv) an otherwise lawful decision is not invalid because a decision-maker fails to give reasons for impliedly rejecting incorrect arguments about its invalidity.

Humphreys J dismissed the proceedings.

Proceedings dismissed.

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

1 . The applicant challenges a ministerial direction which removes text in a development plan that postulates inadequacy of noise insulation schemes relating to Dublin Airport. The central issue is whether the applicant has demonstrated either a legal infirmity in the direction or an unreasonableness that results in the decision falling outside the zone of permissible evaluative judgement on the part of the Minister.

Geographical context

2 . Dublin Airport is located in the townlands of Collinstown, Toberbunny, Commons, Cloghran, Corballis, Coultry, Portmellick, Harristown, Shanganhlll, Sandyhill, Huntstown, Pickardstown, Dunbro, Millhead, Kingstown, Barberstown, Forrest Great, Forrest Little and Rock in Co. Dublin, on a site of c. 580 ha.

3 . In argument, the daa described Dublin Airport as the largest piece of infrastructure in Ireland. Self-evidently, its operation impacts on surrounding residential properties, particularly in terms of noise. A main response to such impacts has been the putting in place of noise insulation schemes for affected areas.

4 . The difference of view that arises in this case is primarily about the threshold of noise which should trigger eligibility for assistance with insulation. Thus far there have been three insulation schemes proposed (helpfully summarised in public domain material at https://www.fingal.ie/aircraftnoisceca/home-insulation):

• (i) The Residential Noise Insulation Scheme ( RNIS) which arose from planning condition 7 on the grant of permission for the North Runway, and has been further extended by daa to include dwellings within the predicted 63 dB LAeq 16-hour contour as defined by condition 7 of the grant of planning permission for the north parallel runway (ABP ref. PL 06F.217429; FCC ref. F04A/1755) as extended to include the predicted 63 dB LAeq 16-hour contour as revised for 2022 forecasts.

• (ii) A second scheme is available for dwellings most impacted by aircraft operations that preceded the opening of the North Runway at Dublin Airport. This is the Home Sound Insulation Programme ( HSIP) and is defined by the 2016 63 dB LAeq 16-hour contour.

• (iii) A regulatory decision by the council as the Aircraft Noise Competent Authority ( ANCA) in June 2022 made provision for a third home insulation scheme (Residential Sound Insulation Grant Scheme – RSIGS). The scheme is a condition of a planning permission (F20A/0668), which has been appealed to An Bord Pleanála (Ref PL06F.314485). The area of eligibility was defined in the permission as follows: “5. A voluntary residential sound insulation grant scheme (RSIGS) for residential dwellings shall be provided. Initial eligibility to the scheme shall apply to all residential dwellings situated within the Initial Eligibility Contour Area as shown in Figure 3.1 — regulatory decision, Third Condition. Residential Sound Insulation Grant Scheme (RSIGS) — Initial Eligibility Contour Area — June 2022. Eligibility to the scheme shall be reviewed every 2 years commencing in 2027 with residential dwellings situated in the 55 dB Lnight contour being eligible under the scheme …”

5 . The geographical scope of the schemes depends on how the noise threshold is set. A lower decibel threshold means a wider spread of homes affected. In crude summary, the elected members wanted a threshold of 40 dB rather than the 63 dB in the existing scheme or the 55 dB proposed. That would have involved a larger area of residences that would be eligible for the scheme. This disagreement essentially pits the elected members, Friends of the Irish Environment and SMTW Environmental against daa, the Office of the Planning Regulator ( OPR) and the Minister for Housing, Local Government and Heritage, with the council executive in the delicate position of having opposed the impugned provision in the plan debates but also having the role of defending it in the proceedings, a tightrope they have walked very valiantly.

6 . A final but important contextual point to note is that the wording in the plan, where the members set out an objective of a more demanding insulation scheme, doesn't in itself do anything and nor could it bring such a scheme into existence. Given the choice between the opposing parties' characterisation of the wording as having almost apocalyptic consequences in planning terms versus the council's description of it as being purely aspirational and precatory, and even recognising that prediction is an inexact science, it seems to me that the dispute is really about a fairly symbolic wording. In itself the inclusion or exclusion of this clause doesn't make a whole lot of difference to much of anything. I appreciate that my saying that probably isn't going to entirely assuage feelings, but the really critical point is that the ministerial direction doesn't in itself remove any actual protection for residents living near the airport. That isn't to say that noise insulation isn't a real issue – it's just not an issue that is particularly advanced by the inclusion of this clause in the development plan.

Facts

7 . The facts regarding the adoption of the plan are sufficiently complex here that it makes sense to outline them under the headings of the relevant statutory steps below rather than in a stand-alone section of this judgment.

8 . However the following additional facts are of relevance.

9 .Directive (EC) 2002/49/EC (the Environmental Noise Directive) was adopted on 25th June 2002.

10 . This was implemented in Ireland by the Environmental Noise Regulations 2006 (S.I. No. 140 of 2006).

11 . In August 2007, the daa was granted permission by the board to build a 3.11 km long runway ( North Runway), 1.6 km north of the pre-existing main runway at Dublin Airport.

12 . Condition 7 of the 2007 permission provided for the establishment of a voluntary noise insulation scheme for dwellings predicted to fall within the contour of 63 dB LAeq, 16-hour, which required to be agreed with the council prior to the commencement of the development of the North Runway. Condition 8 of the 2007 permission provided inter alia that the North Runway would not be brought into operation until a noise insulation scheme approved under condition 7 was implemented.

13 .Regulation (EU) No 598/2014 (the Aircraft Noise Regulation) was adopted on 16th April 2014.

14 . In December 2016, daa agreed the terms of the required voluntary noise insulation schemes for residential dwellings with the council. The RNIS scheme applies to dwellings predicted to fall within the 63 dB LAeq 16-hour contour as defined by condition 7 of the 2007 permission and revised for 2022 forecasts.

15 . In addition, in 2017, daa launched a Home Sound Insulation Programme which was put in place by daa on a voluntary basis and is designed to address the existing impact of the airport on those most affected by aircraft noise. It applies to dwellings impacted by current operations, as defined by the 2016 63 dB LAeq 16-hour contour.

16 . In December 2018, the council made the Noise Action Plan for Dublin Airport 2019–2023 ( NAP) under the 2006 Regulations, following consultation with the EPA. This is...