Nolan v Minister for the Environment

• Jurisdiction: Ireland
• Judgment Date: 10 July 1991
• Docket Number: [S.C. Nos. 289, 340 and 342 of 1989]
• Date: 10 July 1991
• Court: Supreme Court

Supreme Court

[S.C. Nos. 289, 340 and 342 of 1989]

Nolan v. Minister for Environment

Kevin Nolan and Others

Applicants

and

The Minister for the Environment and The Electricity Supply Board

Respondents

Cases mentioned in this report:—

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Nolan v. The Minister for the Environment [1989] I.R. 357

O'Brien v. Bord na Móna [1983] I.R. 215; [1983] I.L.R.M. 314.

Local government - Planning - Development - Exempted development - Motorway - Scheme for construction of motorway - Electric power line located overland comprised in scheme - Application by Electricity Supply Board for permission to relocate power line - Prohibition on local authority granting permission for any development on land to which motorway scheme relates - Application for permission withdrawn - Prohibition on any statutory undertaker erecting apparatus over land to which motorway scheme relates save with consent of Minister for the Environment -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 neighbouring landowners entitled to notice of application - Whether failure to notify amounted to breach of constitutional guarantee of fair procedures - Whether consent invalid - Local Government (Roads and Motorways) Act, 1974 (No. 6) s. 8, sub-s. 2, s. 10.

Judicial Review.

The facts have been summarised in the headnote and appear in the judgments of the Court, post. On the 18th July, 1989, the applicants were granted by the High Court (Costello J.) a declaration that the decision of the first respondent made on the 18th May, 1988, to give his consent to the proposed relocation of a 38 KV power line by the second respondent along the Western Parkway Motorway wasultra vires his powers and invalid (reported at [1989] I.R. 357). The respondents' appeal against the judgment and order of the High Court, by notice of motion dated the 3rd August, 1989, was heard by the Supreme Court on the 17th April, 1991.

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 the 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 . . . 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.

The first respondent made an order approving a scheme for the construction by the Dublin County Council of a motorway on certain lands over which spanned an electric power line, the property of the second respondent. The second respondent subsequently 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. That 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, under s. 10, sub-s. 1 of the Act of 1974, for his consent to the relocation of the power line, which consent was granted.

The applicants applied to the High Court for a declaration that that consent was ultra vires the first respondent's powers and invalid, on the grounds that the first respondent was not entitled to consent to a development in respect of which no planning permission had been granted. The applicants also argued that the first respondent's consent was invalid since it had been granted in breach of their rights to notice of the application and to be heard on the matter. It was submitted on behalf of the respondents that planning permission was not required for the development since it was an exempted development by virtue of various provisions of the planning code.

The High Court held that the relocation of the power line was a development which was not exempted under any of the provisions relied upon; it held further that it was a development in respect of which no planning permission had been, or could have been, granted and that it was, accordingly, unlawful. The High Court found it unnecessary to decide the question as to whether the failure to notify the applicants of the application for consent amounted to a breach of the constitutional guarantee of fairness of procedures. On the respondents' appeal against the judgment and order of the High Court it was

Held by the Supreme Court (Hederman and O'Flaherty JJ., Finlay C.J. dissenting) in allowing the appeal, 1, that the Act of 1974 was to be regarded as a self-contained and separate statutory code which was not subject to the provisions of the Planning Acts.

2. That the first respondent had power, by virtue of s. 10 of the Act of 1974, to consent to the relocation of the power line regardless as to whether such a relocation would be classed as an exempt development for the purposes of the Planning Acts.

3. That, since the High Court had not found it necessary to decide the question of the applicants' entitlement to notice of the application for consent, the ease should be remitted to that court for a decision on that question.

Per curiam. That, in the exercise of his powers under s. 10 of the Act of 1974, the first respondent's obligation to proceed in accordance with natural and constitutional justice did not compel him in every case to follow, as regards the notification of third parties, a procedure identical to that which precedes a grant of planning permission; the procedural obligations imposed upon him would vary from case to case.

Cur. adv. vult.

Finlay C.J.

This is an appeal brought by each of the respondents against an order made in the High Court by Costello J. on the 18th July, 1989, granting to the applicants a declaration that a purported consent given by the first respondent to the second respondent on the 18th May, 1988, pursuant to s. 10 of the Local Government (Roads and Motorways) Act, 1974, was invalid.

The said purported consent was to the relocation by the second respondent of overhead high voltage power lines, from the western to the eastern side of a proposed new motorway, for a distance in the area of Castle knock, Co. Dublin.

The grounds on which the learned trial judge held that the consent was invalid were that the provisions of s. 10 of the Act of 1974 empowered the first respondent only to grant consent to the second respondent to erect power lines over the land comprised in the motorway if, but for the provisions of that section, it was legally entitled so to do, and that by reason of the fact that the particular power lines intended to be relocated constituted a development which is not an exempted development within the meaning of the Local Government (Planning and Development) Acts, it was not a development which the second respondent could lawfully carry out but for the provisions of section 10.

In the court below, and again repeated in the grounds of appeal filed for hearing before this Court, each respondent contended under various alternative headings, that the proposed development by the second respondent, which was the subject matter of the purported consent by the first respondent under s. 10 of the Act of 1974, was exempted development under the provisions of the planning code and was, therefore, but for s. 10, a legal right of the second respondent.

On the hearing of the appeal, however, the real grounds of appeal put forward by the respondents is best illustrated at ground No. 1 of the notice of appeal filed on behalf of the first respondent, which reads as follows:—

"The learned trial judge erred in law in holding that the Local Government (Planning and Development) Acts, 1963 to 1983, had any relevance to the application made by the E.S.B. to the Minister for the exercise by him of his power contained in s. 10, sub-s. 2 of the Local Government (Roads and Motorways) Act, 1974."

Section 10 of the Act of 1974 provides as follows:—

"(1) The powers conferred on any State authority or statutory undertaker by or under any enactment to excavate, lay down or erect any apparatus along, adjoining, in, on, under or over any land shall not be exercised by that State authority or statutory undertaker in relation to any land comprised in a motorway otherwise...