IRISH ASPHALT Ltd v Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Costello |
| Judgment Date | 28 July 1995 |
| Neutral Citation | 1995 WJSC-HC 2494 |
| Docket Number | 340JR/1994 |
| Court | High Court |
| Date | 28 July 1995 |
1995 WJSC-HC 2494
THE HIGH COURT
BETWEEN
AND
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 19(1)
PINE VALLEY DEVELOPMENTS LTD, STATE V DUBLIN CO COUNCIL 1984 IR 407
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 17
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 18
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 19
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 19(4)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S30
KENNY, STATE V BORD PLEANALA UNREP MCCARTHY 20.12.84
TERN HOUSES (BRENNANSTOWN) LTD, STATE V BORD PLEANALA 1985 IR 725
FAWCETT V BUCKINGHAM CO COUNCIL 1960 3 AER 505
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 19(2)
Synopsis:
PLANNING
Permission
Outline - Grant - Conditions - Imposition - Planning approval subsequently sought by developer - Approval granted subject to conditions - Alteration of condition already attached to particu G7 lar aspect of development - Whether alteration ~ultra vires~ planning authority - Blasting operations at limestone quarry - Stricter control of permitted ground-vibration level imposed at approval stage - Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65), articles 18, 19 - Local Government (Planning and Development) Act, 1963, ss. 26, 30 - (1994/340 JR - Costello P. - 28/7/95)
|Irish Asphalt Ltd. v. An Bord Pleanala|
Mr. Justice CostelloDelivered the 28th day of July, 1995.
1. The applicants applied for outline permission under Article 19(1) of the 1977 Local Government (Planning and Development) Regulations on the 8th July, 1991 to the Dublin County Council to permit a development comprising the quarrying of limestone at Ballycoolin, Co. Dublin. A decision to grant outline permission was made and then appealed to An Bord Pleanala. By a decision of the 28th of February, 1992 the Board decided to grant outline permission subject to certain conditions. Condition 4(c) (which placed a limit on the level of transmitted ground vibration emanating from the proposed blasting) read as follows:
"Subject to any restrictions on blasting that may be necessary for the protection of the gas transmission pipeline in the vicinity of the site, the transmitted ground vibration arising from any blast carried out on the site shall, when measured on the foundations of the dwelling house nearest to the location of the blast or on a part of the dwelling house in close contact with the foundations, not exceed a peak particle velocity of 12.5 mm per second in any one of the three mutually orthogonal planes"
2. Later, the applicants applied to the Planning Authority for approval under Article 19(2) of the Regulation in relation to its proposed developmentand this was granted subject to certain conditions on the 4th February, 1994. An appeal was taken to An Bord Pleanala and by a decision of the Board of the 30th of June, 1994 approval was granted, an approval which was also subject to certain conditions. Condition 10(3) dealt with the problem of transmitted ground vibration which had been referred to in condition 4(c) of the outline permission but it made different provisions as follows:
"10(3) The transmitted ground vibration arising from any blast carried out on the site shall, when measured on or about the foundations of the nearest industrial property in the Ballycoolin Business Park not exceed a peak particle velocity of 6mm per second in any one of three mutually orthogonal planes"
It will be noted that (a) this condition required the measurement to be made to the "nearest industrial property" referred to in the condition and that (b) the peak particle velocity was reduced from 12.5 mm per second to 6 mm per second.
3. The applicants have challenged the validity of the Board's decision on the grounds that condition 10(3) was ultra vires mainly because it is said that it had no jurisdiction to modify Condition 4(2) of the outline permission.By order of the 14th December, 1994 the applicants were given leave to apply by way of application for judicial review for, inter alia, an order of certiorari quashing the respondent's decision or alternatively conditions 10.2 and 10.3 thereof. The matter came before the Court by way of notice of motion and was heard by me on affidavit evidence.
The applicants challenge the validity of the decision on twogrounds
(a) that the Board had no jurisdiction to vary Condition 4(c) of the decision of the 28th of February, 1992 and
(b) that the Condition 10(3) of the decision of the 30th of June, 1994 is void for uncertainty.
The first is the principal ground of attack and I will turn to consider it now.
The applicants submit that no issue which has been determined in an outline permission may be re-opened at the approval stage. They claim that the issue of the permitted level of ground vibration was determined by Condition 4(c) of the outline permission (namely a peak particle velocity of 12.5 mm per second as measured in the way specified) and that the Board had no authority to vary that determination by reducing the permitted level of ground vibrationto a peak particle velocity of 6mm per second as measured to a different point. In support of the principle which they say is applicable they rely on the judgment of Mr. Justice Barrington in The State (Pine Valley Developments Limited) .v. Dublin County Council [1984] I.R. 407. In the course of that judgment Barrington, J. expressed the opinion that an outline permission sets "the parameters within which the Planning Authority must consider an application for approval" and that it is not open to the Planning Authority to re-open, at the approval stage, matters which have already been permitted under the general terms of the outline permission (see page 413). The respondents submit that (a) the applicants are misconstruing the judgment in the Pine Valley case, (b) subsequent decisions, in any event, establish that a Planning Authority has power to vary conditions imposed in an outline...
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