Noel Cunningham v an Bord Pleanála and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 15 May 2013
• Neutral Citation: [2013] IEHC 234
• Court: High Court
• Date: 15 May 2013

[2013] IEHC 234

THE HIGH COURT

[No. 48JR/2012]

Cunningham v Bord Pleanala & Sligo Co Council

BETWEEN/

NOEL CUNNINGHAM

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

SLIGO COUNTY COUNCIL

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S4(1)(A)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 6

PLANNING & DEVELOPMENT ACT 2000 S3(1)

BUPA (IRELAND) LTD v HEALTH INSURANCE AUTHORITY 2009 IRLM 81 2008 IESC 42

PLANNING & DEVELOPMENT ACT 2000 S3

NESTOR v MURPHY 1979 IR 326

INTERPRETATION ACT 2005 S5(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 6(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 3 CLASS 9

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)(III)

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

HOLLAND, STATE v KENNEDY 1977 IR 193

KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

RSC O.84 r27(4)

Planning and Development law - Exemption - Agricultural purposes - Shed - Traffic hazard - Planning and Development Act 2000 - Planning and Development Regulations 2001

Facts: The Court considered the scope of an exemption for agricultural purposes pursuant to s. 4(1)(a) Planning and Development Act 2000. The Board had ruled that a shed was not exempted development and had based its conclusions on the fact that it presented a traffic hazard. The Court considered the scope of exemptions under the Act of 2000 and the Planning and Development Regulations 2001.

Held by Hogan J. that it was clear that the Board had asked itself the wrong question. It was insufficient to proceed on the basis that the access point simply presented a traffic hazard as it was insufficient to justify the disapplication of the exemption. The decision could not stand and had to be quashed and remitted to the Board.

1 1. It is, perhaps, one of the curiosities of our legal system that the scope of exemption for agricultural purposes contained in s. 4(1 )(a) of the Planning and Development Act 2000 ("the 2000 Act") has heretofore remained stubbornly unexplored. Given the huge importance of agriculture to our economy and way of life, why this should be so remains surprising. The proper scope of that exemption and that of a parallel exemption contained in Article 6 of the Planning and Development Regulations ( S.I. No. 600 of 2001)("the 2001 Regulations) is, however, centrally relevant to the issues presented by this application for judicial review.

2 2. The proceedings themselves arise in rather prosaic circumstances. The applicant, Mr. Cunningham, is a farmer who resides at Ballisodare, Co. Sligo and his holding consists of about 24 acres. It is not in dispute but that his lands and farm buildings are used for agricultural purposes. The present dispute, however, centres on whether the erection of a tractor shed constitutes exempted development. The shed in question is scarcely a thing of beauty and I am sure that even Mr. Cunningham would probably be the first to acknowledge that it will not win any architectural awards. The shed consists of a roof which has been erected over two supporting steel shipping containers at either side, along with a concrete block wall which encloses the eastern end. There is then an opening which faces west which allows for the storage of a tractor. The containers are of the kind which are routinely used by international hauliers. The entire structure comes to about 120sq. metres.

3 3. The structure is approximately 7 metres from a post and wire fence marking the southern boundary of the site. This fence is itself about three metres or so from the edge of the N59, a national secondary road running between Sligo and Galway which passes the site. Access to the site is via two public gates set back from the public road. The sightlines are restricted from 3m. back at the roadside edge by reason of hedgerows and trees.

4 4. The present case may be said to start with a decision of Sligo County Council on 24 ^th January 2008 to refuse to grant planning permission to Mr. Cunningham for the retention and completion of an upgraded entrance to his farm lands. In refusing permission, the Council noted that the additional traffic generated would interfere with the safety and free flow of traffic on the N59 and would accordingly endanger public safety by being a traffic hazard. There are no sightlines of any significance on the road, yet the standard 100km per hour speed limit applies.

5 5. Following an unsuccessful enforcement prosecution in the District Court which had been taken by the Council, the question of whether the shed constituted exempted development was ultimately referred by the Council to the Board on 21 July 2011 under s. 5 of the 2000 Act. The Board ruled that it was not so exempt by a decision dated 23 ^rd November 2011 and it is this decision which is the subject of challenge in the present judicial review proceedings.

6 6. Before examining this decision and the reasons given for it, it is, however, first necessary to examine the preliminary claim made by the applicant, namely, that the erection of the shed is exempt by reason of the general agricultural exemption contained in s. 4(1 )(a) of the 2000 Act. This was not an argument which was directly addressed by the Board in its decision, although it did state in its decision that it had regard to this sub-section. Counsel for the Board, Mr. Connolly S.C., maintained that this sub-section has no real application at all to the present case.

The scope of the planning exemption

7 7. Section 4(1 )(a) of the 2000 Act provides:

"The following shall be exempted development for the purposes of this Act:-"

(a) development consisting of the use of any land for the purposes of agriculture and development consisting of the use for that purpose of any building occupied together with land so used."

8 8. The word "development" is given a specially extended meaning by s. 3(1) of the 2000 Act:

"In this Act, "development" means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land."

9 9. There can be no doubt but that the erection of the shed would constitute "development" in this sense. It was, at the least, the "carrying out of works" over land. Next, taken literally, it could be said that such development consisted of a use of that building for agricultural purposes, thus attracting - on this argument - the exemption contained in s. 4(1)(a). Yet it can scarcely be denied that such a conclusion would be wholly absurd and would completely undermine the whole system of planning control in respect of the farming sector.

10 10. If this were correct, it would mean that a farmer would be free to construct any building for agricultural purposes, irrespective of whether, for example, it posed a fire hazard or constituted a danger to road users or threatened water contamination through the anticipated discharge of effluents or any other number of considerations pertaining to proper planning and development. Here it may be recalled that the special and extended definition of "development" contained in s. 3 of the 2000 Act applies only so far "as the context otherwise requires." In BUPA Ireland Ltd. v. Health Insurance Authority [2008] IESC 42, [2009] 1 I.L.R.M. 81 Murray C.J. gave guidance on the circumstances in which the court is entitled to depart from the statutorily ascribed meaning of a particular word by reason of the presence of a special context elsewhere in the Act:

"The only scope for construing community rating in s. 12 in a manner different from that required by s. 2 is on the basis of the general proviso contained in s. 2 in respect of all the definitions in it, namely, that a different meaning may only be given to the terms defined if the "context otherwise requires" (emphasis added). This is reflected in the provision of s. 20(1) of the Interpretation Act 2005 which provides that "Where an enactment contains a definition or other interpretation provision, the provision shall be read as being applicable except insofar as a contrary intention appears in" the enactment itself. Having adopted a permissive approach unrestrained by s. 2, the learned trial judge at no stage concluded that s. 12 required another meaning in that sense."

11 11. Unlike the situation which obtained in BUPA - where the Supreme Court refused to hold that a departure from the statutory definition of the term "community rating" was required simply to sustain the vires of a radical scheme reflecting a policy choice contained in a statutory instrument but not otherwise set out in the parent Act - I consider that there are by contrast two basic reasons why the present case should be regarded as one where the special context of the s. 4 exemption imperatively requires that a different interpretation of the word "development" should be given to that which appears in the statutory definition.

12 12. First, this departure from the statutory definition is signalled by the relevant words of s. 4(1)(a) itself ("…development consisting of the use…"). If, accordingly, one looked at s. 4(1 )(a) in isolation it might be said that the exemption referred to a form of development which exempted the mere use of farm buildings for agricultural purposes. On that basis, therefore, the farmer who commences using a barn for storing hay does not require planning permission for this purpose, even if also this amounted to a "development."

13 13. Of course, one cannot normally look at s. 4(1 )(a) in isolation and the employment of the term "development" in that subsection brings with it the extended statutory...