Mulhaire v Bord Pleanála & Electricity Supply Board (ESB)

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date31 October 2007
Neutral Citation[2007] IEHC 478
CourtHigh Court
Date31 October 2007
Mulhaire v Bord Pleanála & Electricity Supply Board (ESB)

BETWEEN

NOEL MULHAIRE
APPLICANT

AND

AN BORD PLEANÁLA AND THE ELECTRICITY SUPPLY BOARD
RESPONDENTS

AND

ENNIS TOWN COUNCIL
NOTICE PARTY

[2007] IEHC 478

No. 724 JR/2006

THE HIGH COURT

PLANNING & DEVELOPMENT ACT 2000 S5

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, Re 2000 2 IR 360 2000/11/4122

VILLAGE RESIDENTS ASSOCIATION LTD v BORD PLEANALA & MCDONALDS RESTAURANTS OF (IRL) LTD 2000 1 IR 65 2000 2 ILRM 59 1999/24/7960

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 17(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19

MCGUINNESS v ARMSTRONG PATENTS LTD 1980 IR 289

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 20

MARSHALL v ARKLOW TOWN COUNCIL 2004 4 IR 92 2004/30/6970

HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005/29/5917

DUNNE & MACKENZIE v BORD PLEANALA & ORS UNREP MCGOVERN 14.12.2006 2006/16/3370 2006 IEHC 400

BLESSINGTON & DISTRICT COMMUNITY COUNCIL LTD v WICKLOW CO COUNCIL 1997 1 IR 273

PLANNING & DEVELOPMENT ACT 2000 S48

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371

PLANNING & DEVELOPMENT ACT 2000 S34(10)(a)

PLANNING & DEVELOPMENT ACT 2000 S34(10)(b)

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750

O'KEEFE v BORD PLEANALA 1993 1 IR 39

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S37(2)(a)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(b)(i)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(b)(ii)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(b)(iii)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(b)(iv)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(c)

PLANNING & DEVELOPMENT ACT 2000 S34(10)

GASHI v MIN JUSTICE UNREP CLARKE 3.12.2004 2004/19/4277

R v CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155

FLOOD v GARDA SIOCHANA COMPLAINTS BOARD 1997 3 IR 321

PLANNING & DEVELOPMENT ACT 2000 S143(1)

EVANS v BORD PLEANALA UNREP KEARNS 7.11.2003 2004/18/4037

PLANNING & DEVELOPMENT ACT 2000 S28

K (G) v MIN JUSTICE 2002 2 IR 418 2002 1 ILRM 401

PLANNING & DEVELOPMENT ACT 2000 S137

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

STACK v BORD PLEANALA & ORS UNREP O'NEILL 11.7.2000 2000/17/6370

PLANNING & DEVELOPMENT ACT 2000 S126

1

JUDGMENT of Mr. Justice Birmingham delivered the 31st day of October, 2007.

2

This is an application by Mr. Noel Mulhaire (the applicant) for leave to apply for judicial review in respect of a decision of An Bord Pleanála (the Board) of 26 th April, 2006 granting permission to the Electricity Supply Board (ESB) for the erection of a 24 metre high free standing communication structure carrying antennae and communications dishes at the ESB substation at Cahircalla, Ennis, County Clare.

3

Section 50 of the Planning and Development Act 2000, as amended, provides that leave to apply for judicial review shall not be granted unless

4

(a) The High Court is satisfied that there are substantial grounds for contending that the decision concerned is invalid or ought to be quashed and the applicant has a substantial interest in the matter which is the subject of the application.

5

The applicant lives in close proximity to the proposed structure and it is not in dispute that he has a substantial interest in the application, though it is contended by both respondents that he lacks an entitlement to advance certain arguments which he seeks to make.

6

In relation to what constitutes substantial grounds, the classic statement of what is required is to be found in the judgment of Carroll J. in McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125 at 130, where she commented:

"What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous."

7

This passage has been considered and approved in a large number of cases and received the endorsement of the Supreme Court In Re Article 26 and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360. I accept that at this stage the court is not concerned with trying to ascertain what the eventual result would be, save to the extent that a ground which did not stand any chance of being sustained could not be said to be substantial. The authority for that is Village Residents Association Ltd v. An Bord Pleanála [2000] 1 I.R. 65.

History of the permission
8

In order to understand and put in context arguments advanced by the different parties and, in particular, to put in context certain arguments advanced by the applicant, it is appropriate to outline the history of the planning application.

9

An application was made to Ennis Town Council by the ESB for permission to erect a 24 metre high free standing communication structure to carry antennae and communication dishes within an existing ESB substation at Cahircalla, Ennis, County Clare. The application was received by Ennis Town Council on 3 rd June, 2005 and after an initial request for further information, the application was refused on 30 th November, 2005. The refusal referred to material contravention of the development plan for the area, serious injury to amenities, property in the vicinity of the proposed development and that accordingly the proposed development would be contrary to the proper planning and sustainable development of the area. It should be noted that in refusing permission the planning authority was following the recommendations of its planning officials.

10

The refusal of permission was appealed to the Board by the ESB, and the applicant, who had earlier made a submission to Ennis Town Council, made an observation which was received by the Board on 20 th June, 2006. A number of other observations were submitted by third parties.

11

The Board Inspector's report recommended refusal, having regard to the guidelines for telecommunications antennae and support structures issued by the Department of the Environment in 1996, as well as the statutory plan for the area. He concluded that the proposed development by reason of its height and scale within a low rise environment, would by reason of the associated dishes and infrastructure and by reason of its location in proximity to residential properties, would be visually intrusive, would injure the amenities of the area and would diminish property values. He further concluded that the development would materially contravene policy objectives of the statutory plan, would set an unwelcome precedent and would accordingly be contrary to the proper planning and sustainable development of the area.

12

The Board received the Inspector's report on the 24 th April, 2007 and on the 26 th April, 2007 the Board granted permission subject to a number of conditions. In doing so it was of course declining to follow the recommendations of the Inspector. It is this decision which the applicant now seeks to challenge.

13

A very large number of grounds of challenge were put forward in the statement of grounds. However, there is a considerable overlap between them and some of the grounds are repetitive. It is possible to cluster the grounds so as to reflect the basic contentions of the applicant. In summary the challenge centres on

14

(i) alleged irregularities in relation to the site notice;

15

(ii) an alleged failure on the part of the Board to give any, or any adequate, reasons for its decision.

16

(iii) It is said that the Board's decision was unreasonable and or irrational and

17

(iv) it is alleged that the Board failed to give notice to the applicant of certain matters including the contents of the Inspector's report thereby denying the applicant of the opportunity of making relevant submissions.

18

I propose to address each of these issues in turn.

The site notice
19

The evidence before the court indicated that on the 3 rd June, 2005, a required site notice was erected by a planning consultant employed by the ESB who later on the same day lodged the original planning application with Ennis Town Council. It appears that it is the settled policy of the ESB when submitting a planning application that the site notice is erected on the same day as the planning application is submitted but before the actual submission.

20

It appears from the affidavit of the applicant that the applicant was initially of the view that the site notice had to be erected two weeks prior to the submission of the planning application and be in situ throughout that two week period. The applicant, however, was mistaken in that regard as what is required under Article 17(1) of the Planning and Development Regulations 2001, is that an applicant shall within the period of two weeks before the making of a planning application give notice of the intention to make the application by the erection or fixing of a site notice in accordance with Article 19.

21

Faced with this difficulty, the applicant has refined his arguments and contends that the erection of the notice, on the same day as the planning application was submitted, does not comply with the regulations. The argument made is that the day on which the application is submitted cannot be regarded as being within the two week period. It is said that this is so by an analogy with the Statute of Limitations. However, it seems to me that the Statute of Limitations jurisprudence does not assist the applicant. In McGuinness v. Armstrong Patents Limited [1980] I.R. 289, McMahon J. held that the day on which the cause of action accrues is included. It seems to me that where somebody erects a sign early in the day when they are subsequently going to lodge an application for planning permission that...

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