Leen v Aer Rianta cpt

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date31 July 2003
Neutral Citation[2003] IEHC 101
Docket Number[2003 No. 12 M.C.A.]
Date31 July 2003
CourtHigh Court

[2003] IEHC 101

THE HIGH COURT

Rec. No. 2003/12 MCA
LEEN v. AER RIANTA CPT
IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

BILLY LEEN
APPLICANT

AND

AER RIANTA cpt.
RESPONDENT
Abstract:

Planning and environmental law - Permission Conditions attached to grant of planning permission - Breach of conditions attached to permission - Application for relief in respect thereof - Exercise of court's discretion - Correct approach when considering to grant relief in respect of breach of planning conditions - Motive of applicant - Public interest - Whether relief should be granted - Planning and Development Act 2000, section 160.

Facts: the respondent had been granted planning permission to build an extension at Shannon airport, attached to which were a number of conditions, including ones relating to waste management. The applicant, being of the view that those conditions had not been complied with, brought an application pursuant to section 160 of the Planning and Development Act 2000, seeking an injunction closing the airport and other declaratory relief. The respondent alleged that the application was improperly motivated by the decision to use Shannon as a refuelling stop-over in the Iraq war.

Held by McKechnie J in refusing to grant any injunctive relief, 1, that the building as constructed under the planning permission should not have been occupied until a suitable and proper method for both the treatment and disposal of effluents had been put in place by the respondent as per the relevant condition. Accordingly, the respondent was in breach of that condition of the planning permission.

2. That the motive of the applicant in bringing the proceedings was not relevant to his standing to bring them. His motive was relevant however to the exercise by the court of its discretion when it came to consider what relief it might grant.

3. That the High Court should have a wide discretion on the question of whether or not to issue an injunction or other reliefs under section 160 of the Act of 2000 and that in exercising such discretion it should be influenced, in some measure, by the factors which would influence a court of equity in deciding to grant or withhold an injunction.

4. That, in deciding whether to grant an injunction under section 160 and if so on what terms, there were certain matters to which particular attention should be given. These included:- (a) the conduct, position and personal circumstances of the applicant; (b) the question of delay and acquiescence; (c) the conduct, position and personal circumstances of the respondent; (d) the public interest; to include: (i) as part of that interest the business, commercial and tourist activities conducted at the airport and in the wider general area and (ii) as members of the public those who derived any employment benefit, either directly or indirectly, from the airport's overall operation as well as persons in the wider community and those who availed of or utilised the respondent's facilities. Apart from economic consequences there were other issues of a public nature which could also have a relevance when considering this question of discretion. These could include the potential impact of a development, for example in an area of high amenity due to its ecological importance or its scientific interest or which had a value as a site of conservation for certain species of flora and fauna.

5. That what was determinative in whether to grant or withhold relief was the effect which any closure of the airport would have on the multiplicity of bodies, entities and persons who would suffer as a result.

Reporter: P.C.

1

Mr. Justice William M. McKechnie dated the 31st day of July 2003.

2

1. On 26 th September, 1997, Clare Co. Co., as the relevant planning authority, received from the respondent Aer Rianta, in its capacity as owner and operator of Shannon Airport, an application for planning permission to carry out a proposed development, which said development was described as being "to construct an extension to the main terminal building to accommodate new departures, check-in facilities, restaurant and public viewing area and Shannon Airport in the town land of Rinenna South, Shannon Airport." On 24 th November, 1997, the planning authority issued notification of its decision to grant such permission. The actual grant followed on 5 th January, 1998.

3

Attached to this permission were nine conditions which were set forth in the first schedule thereto. Conditions nos. 1, 7 and 8 are relevant to this application. These said conditions read as follows:-

4

2 "1. Before the proposed development is occupied the developer shall agree with the Council and shall provide a suitable method and location for the treatment and disposal of the effluents to which the development is likely to give rise.

5

7. The development shall not be occupied until appropriate means of management of wastes arising from the development shall be agreed with the Council.

6

8. Adequate water supply shall be provided for fire fighting. Water main shall be extended, and relocated where necessary, in such a manner as to form a ring main. Hydrants shall be located on north, south and west elevation and where practicable on eastern elevation. Hydrant system shall comply with the requirements of BS 5306, Part I 1976. Hydrants shall be underground fire hydrants, screw down type, as per BS 750 1989, and shall be conspicuously marked in accordance with BS 3251 1976. Details of same shall be agreed with the Council before development commences."

7

2. Being of the view that the respondent has not complied with the aforesaid conditions, the applicant above named issued a notice of motion dated 27 th February, 2003, in which, under s. 160 of the Planning and Development Act 2000, the following reliefs were sought:-

8

2 "1. An order prohibiting the occupation of the extension to the main terminal building at Shannon Airport in the town land of Rinenna South, Shannon Airport, Co. Clare pending compliance with the conditions of planning permission register reference no. P97/1277,

9

2. An order requiring the respondents to comply with conditions 1, 7 and 8 of planning permission register reference no. P97/1277 within such period as this honourable court shall direct,

10

3. An order declaring that the use of the main terminal building at Shannon Airport in the town land on Rinenna South, Shannon, Co. Clare, constitutes an unauthorised development in the absence of compliance with the conditions of planning permission 97/1277,

11

4. An order prohibiting the respondent from discharging waste into the Shannon Estuary pending the provision of a satisfactory effluent treatment system for the treatment of such waste."

12

Subsequent to the service of this motion, the planning authority by letter dated 25 th March, 2003, confirmed that condition no. 8 had by that date been complied with. Therefore this case is now concerned only with conditions nos. 1 and 7.

13

3. Following upon the receipt of the aforesaid grant of planning permission, the respondent company, in August 1998, commenced carrying out the permitted development and completed all construction and other related work at the beginning of the year 2000. In March of that year the extension to the main terminal building which had been erected as authorised was ready for operational use. In fact, since that month in the year 2000 this extension has been continuously occupied by the respondent and has been so used by it as an integral part of its airport operations at Shannon in the County of Clare.

14

4. By way of suggested defence it is claimed that condition no. 1 is capable of being interpreted in such a manner that, provided a suitable method and location for the treatment and disposal of effluents had been agreed with the planning authority, it was not in fact necessary to physically develop or construct the relevant structures or otherwise to implement such agreement. As part of this argument it was claimed that the planning authority wanted to confer on the respondent as much flexibility as possible with regard to this new development. An internal recommendation dated 24 th November, 1997, the date of the notification of the decision to grant, and signed by an executive chemist and a senior executive engineer (environment) of Clare Co. Co., suggested the following as the appropriate wording for what in essence ultimately became condition no. 1. The relevant wording of this recommendation was as follows: "no development shall be commenced unless and until appropriate means of management of wastes arising at the facility has been agreed with the Planning Authority". When one contrasts this wording with the actual wording of condition no. 1, it is suggested that the same shows an attitude on the part of the planning authority of affording to the respondent as much latitude as possible with this development.

15

5. In my view there is no doubt but that there is a significance in the change of wording between that internal recommendation and condition no. 1 as finalised. Both however are equally clear, definite and precise, and contain no ambiguity of the kind suggested by the respondent or indeed otherwise. As the recommendation must give way to the condition incorporated in the actual grant it becomes unnecessary to further refer to it.

16

Condition no. 1 in my view is incapable of the interpretation suggested by Aer Rianta. In my opinion it means that whilst the development can be proceeded with, constructed and completed, nevertheless the building in question cannot be occupied until such time as not only is there an agreement between the respondent and the council as to the treatment and disposal of effluents, but also until such time as there is...

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