Ryanair Ltd v an Bord Pleanála

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date27 February 2004
Neutral Citation[2004] IEHC 52
Docket Number[2003 No. 362 JR]
Date27 February 2004

THE HIGH COURT

[2003 No. 362 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN
RYANAIR LTD.
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
AER RIANTA CPT,FINGAL COUNTY COUNCIL AND PORTMARNOCK COMMUNITY ASSOCIATION
NOTICE PARTIES
Abstract:

Planning and environmental law - Judicial review Leave - Planning permission - Permission granted by An Bord Pleanála on appeal subject to conditions contrary to recommendation of its inspector - Extent of obligation of An Bord Pleanála to state reasons for imposing conditions on grant of permission - Whether An Bord Pleanála indicated sufficient reasons for departing from recommendation of its inspector - Conditions - Nature of conditions imposed by An Bord Pleanála - Whether An Bord Pleanála has authority to impose as condition that certain matters be agreed between developer and planning authority - Whether substantial grounds advanced by applicant - Whether leave should be granted - Planning and Development Act 2000, sections 34(2), 34(5), 34(10), 37(1)(b), 131.

Facts: the respondent granted permission to the first notice party to build an aircraft pier, which was subject to seven conditions. Initially, the second notice party had granted permission, which decision the applicant had appealed to the respondent. The applicant sought to quash the decision of the respondent on the grounds, inter alia, that it had acted ultra vires in so far as the respondent had failed to furnish sufficient reasons and considerations upon which it had reached its decision, contrary to section 34(10) of the Planning and Development Act 2000,: (a) to depart from the recommendation of its inspector and; (b) to state the considerations it made for the imposition of conditions. It was also contended that it had no jurisdiction to make conditions, which were to be agreed between the first and second notice parties. It was further submitted that the decision was invalid as it did not refer explicitly to the county development plan contrary to section 34(2) of the Act of 2000. Further, a declaration was sought to the effect that the decision was invalid, as the applicant had not been afforded the minimum statutory period for making a submission prescribed by section 131 of the Act of 2000.

Held by Ó Caoimh J in refusing to grant leave that because the word "considerations" in section 34(10) of the Act of 2000 had not been judicially defined was not, of itself, sufficient to constitute substantial grounds for granting leave. The obligation of An Bord Pleanála under section 34(10) was to state the main reasons for the imposition of conditions and not to state its considerations, which were, necessarily, broader. Accordingly, the applicant had failed to show substantial grounds that the terms of the "considerations and reasons" given by the respondent fell short of the requirements of section 34(10).

That the decision indicated the main reasons for departing from the recommendation of its inspector to comply with section 34(10)(b) of the Act of 2000 and that it could be inferred that the respondent accepted the report of its inspector to the extent that it did not depart from its recommendations.

That it was legitimate for the respondent to have regard to matters in the county development plan without necessarily referring to same as being part of the development plan.

That the power enjoyed by the respondent to impose a condition that matters should be agreed between a planning authority and the recipient of a planning permission was one which had previously been judicially determined as arising under section 26 of the Local Government (Planning and Development) Act 1963 which section was the precursor to section 34(5) of the Act of 2003. Any intended removal of the power previously enjoyed by the Board should be removed by measured and considered provisions and the least alteration of the law should be presumed and that the power of the respondent to impose such a condition was identified by section 34(5) and had not been conferred thereby. Accordingly, the applicant had not advanced substantial grounds for contending that the respondent was not entitled to impose a condition requiring agreement to be reached on certain matters between the planning authority and the recipient of the grant of planning permission.

That the issue raised in relation to the failure of the respondent to send notice to the applicant within the time limits specified in section 131 of the Act of 2000 was a moot point as the applicant had in fact made submissions within the period allowed.

Reporter: P.C.

1

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 27th February. 2004.

2

This is an application brought for leave to institute proceedings by way of an application for Judicial Review of a decision of the respondent (hereinafter referred to as 'the Board') made on 31st March, 2003, whereby it decided to grant permission to the first named notice party (hereinafter referred to as 'Aer Rianta'), for a development comprising a passenger aircraft pier to be known as "Pier D" with optional fixed bridges and an elevated access corridor from the existing terminal to the new pier at Dublin Airport which decision was subject to seven conditions.

3

Initially a decision to grant planning permission was made by the second named notice party (hereinafter referred to as the 'County Council') on 7th October,

4

2002. An appeal was taken by the applicant from that decision. The proposed development includes a link to the main terminal building from Pier D which is in the form of an elevated walkway which it is complained frames or obscures the public or landside view of the old terminal building at Dublin Airport which is stated to be a class one listed building under the County Development Plan. It is submitted that this unnecessarily obstructs or precludes the view of the terminal building.

5

The relief sought by the applicant is, in the first instance, an order of certiorari quashing the decision of the respondent stated to have been made on 28th March, 2000, and ancillary declarations to the effect that in making its decision the respondent acted ultra vires and/or without or in excess of jurisdiction, that the decision is null and void and of no legal effect, that the decision is invalid in circumstances where the respondent failed to furnish the reasons and considerations upon which its decision is based contrary to the provisions of s. 34 (10) of the Planning and Development Act, 2000 and that the decision is invalid in that the respondent acted in excess of or without jurisdiction by granting the permission with conditions requiring matters in relation to the size, design and appearance of the development to be agreed between the first named notice party and the second named notice party. In addition a declaration is sought to the effect that the decision of the respondent is invalid in circumstances where it failed to afford to the applicant the minimum statutory period for making a submission prescribed by section 131 of the Planning and Development Act, 2000. The grounds advanced by the applicant are as follows:

6

1. On 7th October, 2002, the second named Notice Party decided to grant permission to the first named Notice Party, subject to 20 conditions, under register reference F02A/1046 for development comprising a

7

passenger aircraft pier, to be known as "Pier D" with optional fixed bridges and an elevated access corridor from the existing terminal to the new pier at Dublin Airport.

8

2. The decision of the second named Notice Party was appealed to the Respondent by the Applicant and third named Notice Party. The submissions made by the parties to the appeal were considered by the Inspector appointed by the Board, Mr. Philip Jones, in his report dated 11th March2003. He recommended that permission should be granted for the pier building and associated site development and utility works but should be refused for the proposed elevated access corridor.

9

3. On 28th March 2003, the Respondent decided to grant permission for the proposed development, subject to 7 conditions.

10

4. There is an error of law on the face of the record that renders the decision of the Respondent invalid and the Respondent has erred in law and acted in excess of or without jurisdiction in that the decision of the Respondent fails to state the main reasons and considerations on which the decision is based contrary to section 34 (10) of the Planning and Development Act, 2000.

11

5. There is an error of law on the face of the record that renders the decision of the Respondent invalid and the Respondent has erred in law and acted in excess of or without jurisdiction in that the decision of the Respondent fails to state the main reasons for not accepting the recommendation of its Inspector in relation to the grant and refusal of permission contrary to section 34(10) of the Planning and Development Act, 2000.

12

6. There is an error of law on the face of the record that renders the decision of the Respondent invalid in that the decision of the Respondent does not make any reference in its decision or the reasons and considerations upon which its decision is based to the relevant development plan, the Fingal County Development Plan 1999, to which the Respondent is required to have regard pursuant to section 34(2) of the Planning and Development Act, 2000.

13

7. The Respondent erred in law and acted in excess of or without jurisdiction in imposing conditions requiring matters to be agreed between the first named Notice Party and the second named Notice Party. The Respondent is not entitled to grant permission subject to conditions that require matters to be agreed with the planning authority because the statutory power to impose such conditions which is conferred on the planning authority by ...

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