Henry v Cavan County Council and Eircell

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 01 February 2001
• Neutral Citation: [2001] IEHC 16
• Date: 01 February 2001
• Docket Number: [1999 No. 288 J.R.]
• Court: High Court

HENRY v. CAVAN CO COUNCIL

JUDICIAL REVIEW

BETWEEN

BERNARD HENRY

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF CAVAN

RESPONDENT

AND

EIRCELL LIMITED

NOTICE PARTY

[2001] IEHC 16

No. 288 JR/1999

THE HIGH COURT

Abstract:

Planning and environmental law - Telecommunications - Practice and procedure - Judicial review - Time limits - Certiorari - Permission by notice party to retain support pole and antennae - Visual impact of mast in town centre - Date when decision made - Distinction between decision of planning authority to grant permission and grant itself - Relevant time when decision made by respondent - Whether application for judicial review out of time - Local Government (Planning and Development) Act, 1963 (No 28) - Local Government Act, 1991 (No 11) - Local Government (Planning and Development) Act, 1992 (No 14).

Eircell Ltd, the notice party, was granted planning permission by the respondent to retain a support pole and antennae for mobile communications. The applicant sought to quash the permission on a number of grounds including inter alia that he and his neighbours were unaware of the notice party's application and did not have an opportunity to make submissions with regard to their fears to the proposed development. The respondent contended that the applicant was out of time to bring his application. Ó Caoimh J held that the relevant time commenced on 31 March, 1999 when the decision of the respondent was made. Consequently any judicial review sought of that decision had to be commenced within two months from the date of that decision. Since no application was brought until July, 1999 the application before the court was made outside the time permitted by section 82 of the Local Government (Planning and Development) Act, 1963. The application would be dismissed.

1 Mr. Justice Aindrias Ó Caoimh on the 1st day of February 2001.

2 In this application the Applicant seeks an Order quashing the decision of the Respondent Council, to grant planning permission sought by the Notice Party Eircell Limited for the retention of a support pole and antennae for mobile communications, which development is located at the Corporation Lands, Belturbet in the County of Cavan. The Applicant has sworn an affidavit in which he describes himself as an unemployed factory worker of 11 Fay Crescent, Belturbet, in the County of Cavan and he says that he lives in the town of Belturbet which is a small town located in the West of County Cavan. He says it is an extremely attractive town located on the banks of the river Erne. He indicates that he together with a number of other local residents are extremely concerned about the decision of the Respondent Council.

3 The Applicant says that in or about the month of February, 1999, the Respondent constructed a telecommunications mast at Corporation Lands, Belturbet, in the County of Cavan, which mast is located immediately beside the telephone exchange. He says that the mast itself is particularly unsightly and ugly and it is totally inconsistent with the character of the town and is of major detrimental impact to the visual amenity of the area. He says that it is of great concern that the mast is located in the town centre. He says that close to the site of the mast there is a number of residences and a number of business and he says that people living beside this mast are very concerned as he is about the affect on public health. He says that it is a cause of stress to people living in the area because of the possible health risk which will emanate from the operation of the mast. He says further that across the road from the mast is St. Bricin's Technical School and he says there are three other schools in the immediate vicinity.

4 The Applicant says that he lives very close to the mast and that it is visible from his house and that he is very concerned about its visual impact and about the possible health implications which arise from the operation of the mast. He says that this concern partly relates from the fact that he suffers from epilepsy which he believes is a condition that may be affected by radiation emissions. The Applicant complains that the Respondent (in this regard it appears that he intends to mean the Notice Party) constructed this mast without planning permission on the site and commenced the use of the structure without obtaining the necessary grant of planning permission pursuant to the Local Government (Planning and Development) Act, 1963.

5 The Applicant says that the construction of the mast came as a complete surprise to him and to other residents of Belturbet because approximately a year previously there had been a meeting between the local community and a representatives from Eircell Limited and he says that at that meeting there was an undertaking given by the Respondent that any mast to be constructed would be constructed far away from the town and if possible at a remote rural location where it could not have any effect on the amenities of adjoining residences, on schools, or on facilities which were used by the public on a regular basis. The Applicant complains that despite this commitment the Respondent (and in this regard again I believe this is intended to refer Eircell Limited the Notice Party), made an application to retain the structure by planning applications submitted on the 5th of March, 1999. The Applicant says that by virtue of the commitments given and by virtue of the public notice which was published which provided for an application to "retain support poles and antennae" the local community and he in particular were not aware that this was an application to retain a telecommunications mast and he says that he assumed that the application was part of the conventional telephone exchange facility which was located in the area, as there was no reference in the application notice to mobile telecommunications equipment. The Applicant says that it was not until after the appeal period had expired that the local community became aware of what had been applied for and what had been granted by Cavan County Council and he says that at this stage it was too late to lodge and Appeal against the decision.

6 The Applicant says that the application for planning permission was lodged on the 5th of March, 1999, and he says that a report was prepared by the Planning Office dated the 24th of March, 1999, some two and half weeks after the receipt of the application and he says that the decision to grant was made on the 31st of March, 1999, which is approximately three weeks after the receipt of the application. The Applicant says that he and his neighbours and other residents of Belturbet were totally unaware that the application had been submitted and had not an opportunity to make a submission to the County Council with regard to their fears relating to the proposed development and in particular to the impact which the development would have on the visual amenity of the town and the public health of the area and on schools and residences which are located close by.

7 The Applicant says that one of the reasons why he and others were not as vigilant as they should have been was that earlier in the year they had a meeting with Eircell which had given an assurance at the time that no application would be made for the construction of any mobile telecommunications structure in the town of Belturbet and on the basis of that assurance he says that local people were satisfied that no telecommunication structures would be applied for or located in the town. The Applicant says that notwithstanding the assurance given to the local community the application by the Notice Party was lodge on the 5th of March, 1999.

8 He says that the development is located in an extremely sensitive site and is located approximately 25 meters from the nearest school. He says that, by virtue of the concerns which local people had with regard to the impact of such developments and the statutory scheme of which such developments are to be assessed, they are reasonably sure that no mast could be granted permission within the town itself and certainly no mast could be granted permission in the immediate vicinity of the school. He says that this expressly contravened the requirements issued by the Department of the Environment to Planning Authorities which set out the method for considering applications made for such masts.

9 The Applicant says that the location of the mast in this case contravened two fundamental requirements in that the mast is located within the town itself and is located approximately 25 metres from the school. The Applicant further says that the Planning Authorities failed to address themselves to the critical approach which the guidelines require the Planning Authorities to adopt as conditions precedent to the consideration of such applications and in particular paragraph 4.3 of guidelines issued by the Department of the Environment in relation to telecommunications which set out the locations for such masts should not generally ever be allowed to be located. The Applicant refers to paragraph 4.3 wherein it is stated inter alia that "only as a last resort should freestanding masts be located within or in the immediate surrounds of smaller towns or villages or beside schools".

10 In light of this paragraph it is submitted by the Applicant that it is a fundamental requirement that local authorities consider whether there is any other site which can be considered for such masts in a general area outside the town and village before they consider the site of the proposed development and only in circumstances were they are satisfied that no such site is available can they consider an application for such masts within the town itself.

11 The Applicant says that he has examined the planning files for the application. He says there is no reference to considerations of other possible sites outside...