Merriman & os v Fingal County Council

• Jurisdiction: Ireland
• Judge: O'Donnell J.,O'Malley J.,Finlay Geoghegan J.
• Judgment Date: 06 July 2018
• Neutral Citation: [2018] IESCDET 102
• Docket Number: S:AP:IE:2018:000040
• Court: Supreme Court
• Date: 06 July 2018

[2018] IESCDET 102

THE SUPREME COURT

DETERMINATION

O'Donnell J.

O'Malley J.

Finlay Geoghegan J.

S:AP:IE:2018:000040

BETWEEN

HELENA MERRIMAN, MICHAEL REDMOND, ADRIENNE MCDONNELL, PETER COLGAN, ELIZABETH MCDONNELL, TREVOR REDMOND, PATRICIA DEIGHAN, MARGARET THOMAS, NOEL REILLY, HELEN GILLIGAN, JAMES SCULLY, FERGUS RICE, NOEL DEEGAN, VALERIAN SALAGEAN, SIDNEY RYAN, GREG FARRELL, SHEELAGH MORRIS, JIMMY O'CONNELL, SILE HAND, DECLAN MCDONNELL, ELIZABETH ROONEY

AND

DESMOND O'CONNOR

APPPLICANTS

AND

FINGAL COUNTY COUNCIL

FIRST NAMED RESPONDENT

AND

IRELAND

AND

THE ATTORNEY GENERAL

SECOND AND THIRD NAMED RESPONDENTS

AND

DUBLIN AIRPORT AUTHORITY PLC

NOTICE PARTY

AND

RYANAIR DAC

SECOND NAMED NOTICE PARTY (BY ORDER)

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicants to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 21 st of November 2017, and 14 th of February 2018.

DATE OF ORDER: 14 th of February 2018.

DATE OF PERFECTION OF ORDER: 14 th of February 2018.

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON the 21 st of MARCH 2018 AND WAS OUT OF TIME.

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal pursuant to Article 35.5.4° of the Constitution have been set out in a large number of determinations and it is not necessary to repeat them here. Furthermore, the application for leave filed in the respondent's notice thereto, together with the judgment of the High Court, have all been on the substantive hearing and on the applicants' application for a certificate pursuant to s.50A(7) of the Planning and Development Act 2000, and are all publicly available. It is accordingly unnecessary to set out the background facts in any particular detail.

2 The judgment in respect of the substantive matters, and in respect of which application for leave to appeal is made, runs to 297 pages. It is however necessary to identify the issues decided in more compressed form for the purposes of consideration of this application. If more detail is sought in relation to the detail of the arguments and the factual background, recourse should be had to the judgment of the High Court of the 21st of November 2017.

3 This case concerns a decision by the respondent county council pursuant to s.42 of the Planning and Development Act 2000 (as amended) (‘s.42’) extending the appropriate period within which to carry out a planning permission. The relevant planning permission had been granted by An Bord Pleanála to the first named notice party, Dublin Airport Authority Plc (‘DAA’) for the construction of a runway at Dublin Airport. The original permission was granted on the 29th of August 2007 for a period of ten years and was therefore due to expire on or about the 28th of August 2017, and would cease to have effect pursuant to the provisions of s.251 of the Planning and Development Act on the 26th of November 2017. An extension of time was sought, and granted, for a period of five years to the 28th of August 2022. That application for extension of the period was made on the 11th of January 2017 and decided shortly thereafter. It is that decision which was the subject of the proceedings giving rise to the decision of the High Court which it is now sought to appeal.

4 Section 42 is a familiar provision of the Planning Code and permits the extension of the period within which to complete a planning permission. In its original form in the 2000 Act (essentially re-enacting with some amendments the provisions of s.4 of the Local Government (Planning and Development) Act 1982), it permitted the extension of the period of a permission where ‘substantial works’ had been carried out pursuant to the permission. In 2010, the section was amended to permit an additional ground for an extension when considerations of commercial, economic or technical nature beyond the control of the applicant and which ‘substantially militated’ against the commencement of the development had occurred. It was necessary also for the relevant planning authority to determine that there had been no significant changes in the development objectives in the development plan such that permission would no longer be consistent with proper planning and development. The planning authority was also required to determine that the development would not be inconsistent with proper planning and sustainable development of the area having regard to any guidelines issued by the Minister under s.28 of the Act, even where such guidelines were issued after the date of the grant of permission. Finally, where development had not commenced before the expiry of the permission, the authority was obliged to determine that an environmental impact assessment or an appropriate assessment or both, if required, had been carried out before the permission was granted. In this case it was asserted that works had been commenced under the existing permission prior to its expiry, and accordingly that this requirement did not in any event arise.

5 The terms of s.42 as originally enacted in 2000, and its statutory predecessor, had been the subject of a number of decisions of the Superior Courts which had emphasised both the limited scope of the decision, and the mandatory requirement that when the conditions were satisfied, the planning authority was obliged to grant the extension of the period. The decision of the local authority in this case was challenged by a group of local residents who are the applicants for leave to appeal in this case, and also by a...