Nolan v Minister for the Environment

• Jurisdiction: Ireland
• Judgment Date: 18 July 1989
• Docket Number: [1988 No. 205 J.R.]
• Date: 18 July 1989
• Court: High Court

Nolan v. Minister for the Environment

Kevin Nolan and others

Applicants

and

The Minister for the Environment and The Electricity Supply Board

Respondents

[1988 No. 205 J.R.]

High Court

Local government - Planning - Development - Exempted development - Motorway - Scheme for construction of motorway - Acquisition of land by local authority - Electric power line located over land - Application by Electricity Supply Board to relocate power line - Prohibition on local authority granting permission for any development on land to which motorway scheme relates - Prohibition on any statutory undertaker erecting apparatus over land to which motorway scheme relates save with consent of Minister for the Environment - Application by Board to Minister - Grant of consent by Minister - Whether development exempted from requirement for planning permission - Whether consent invalid - Whether householders on adjoining lands entitled to damages for breach by Minister of constitutional guarantee of fair procedures - Whether damages could be awarded for infringement of legitimate expectation - Local Government (Planning and Development) Act, 1963 (No. 28), s. 4, sub-ss. 1 (c) and (f), s. 4, sub-s. 2 (a), s. 77, sub-s. 1 - Local Government (Roads and Motorways) Act, 1974 (No. 6), s. 8, sub-s. 2, s. 10 - Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65).

Section 4 of the Local Government (Roads and Motorways) Act, 1974, provides that a road authority may make a scheme for the provision of a motorway. After causing a public inquiry to be held under s. 6 of the Act, the Minister for the Environment may make an order approving a scheme, and the road authority is then entitled compulsorily to acquire the land to which the scheme relates. Section 8, sub-s. 2 of the Act provides:—

"Notwithstanding anything contained in any other enactment, a planning authority shall not grant permission, nor shall a decision by a planning authority to grant any permission be regarded as having been given, for any development which would provide direct access to a motorway or for any development on land to which a scheme made by a road authority pursuant to section 4 of this Act relates."

By s. 10, sub-s. 1 of the Act the powers conferred on any State authority or statutory undertaker to excavate, lay down or erect any apparatus along, adjoining, in, under or over land comprised in a motorway shall not be exercised save with the consent of the Minister for the Environment.

Section 77, sub-s. 1 of the Local Government (Planning and Development) Act, 1963, provides that a planning authority may develop or secure the development of land and, by para. (b) thereof, may develop any land in the vicinity of any road which it is proposed to construct. By art. 10 and the Third Schedule of the Local Government (Planning and Development) Regulations, 1977, development by an electricity undertaking consisting of the erection or construction of an overhead transmission line not more than 40 metres from a position in respect of which permission for such line was granted is classed as exempted development.

The first respondent made an order approving a scheme for the construction by Dublin County Council of a motorway on certain lands over which ran an overhead electric power line, the property of the second respondent. Permission for the construction of the power line had been granted subject to the condition that the line be relocated by the second respondent at its own expense in the event of road works or otherwise. At the hearing of a public inquiry held under s. 6 of the Act of 1974, a Council engineer had given evidence that it was the intention of the Council that, when the motorway was constructed, the power line would be laid underground on the opposite side of the motorway to that on which the applicants resided. At the same time a Council official wrote a letter to the secretary of a local residents' association which also indicated that the power line would be positioned on the far side of the motorway. It was stated in the County Council's development plan that it was the policy of the Council to grant permission for the location of power lines only on condition that they be placed underground.

The second respondent applied to the County Council for planning permission for the relocation of the overhead power line and pylons to a position close to the applicants' homes; the new site was more than 40 metres from the position in respect of which planning permission for the line was originally granted. The application was withdrawn as having been brought in error since, by virtue of s. 8, sub-s. 2 of the Act of 1974, the Council was prohibited from granting permission for any development in relation to the land. The second respondent then applied to the first respondent for his consent to the relocation of the power line, which consent was granted. On the applicants' application to the High Court by way of judicial review for a declaration that that consent was ultra vires the first respondent's powers and invalid, and for damages, it was

Held by the High Court (Costello J.) in granting the declaration sought but dismissing the application for damages, 1, that the relocation of the power line was a development within the meaning of the Local Government (Planning and Development) Act, 1963.

2. That the development was not exempted from the requirement for planning permission by virtue of s. 4, sub-s. 1 (c) of the Act of 1963, which exempts development by the corporation of a county or other borough in such borough; even if the relocation of the power line could be described as having been secured by the County Council, within the meaning of s. 77 of the Act of 1963, the development was undertaken by the second respondent pursuant to its own statutory powers.

3. That the relocation of overhead lines and pylons did not come within s. 4, sub-s. 1 (f) of the Act of 1963, which exempts "development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus".

4. That since the new site of the line was more than 40 metres from its original position, the development was not exempted by virtue of the Regulations of 1977.

5. That the condition attached to the original grant of permission for the construction of the power line could not be construed as meaning that the second respondent was entitled to place the line at the original position and then relocate it anywhere else it might choose, provided it did so at its own expense; rather, it was a permission to carry out the development referred to in the maps annexed to the application on...