Ryanair Ltd v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 January 2008
• Neutral Citation: [2008] IEHC 1
• Court: High Court
• Date: 11 January 2008

Ryanair Ltd v Bord Pleanala

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS

AMENDED)

BETWEEN

RYANAIR LTD

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENTS

AND

DUBLIN AIRPORT AUTHORITY PLC, FINGAL COUNTY COUNCIL, THE PORTMARNOCK COMMUNITY ASSOCIATION AND AN TAISCE

NOTICE PARTIES

[2008] IEHC 1

[No. 1245 J.R./2007]

[No. 133 COM/2007]

THE HIGH COURT

CONTRACT

Terms

Settlement agreement - Construction of agreements - Objective construction - Natural and ordinary meaning of words - Challenge to grant of planning permission for airport terminal - Whether challenge precluded by reason of prior settlement agreement - Whether challenge excluded only where particular plan implemented - Terms of agreement -Whether proposed terminal entirely different from terminal originally contemplated - Estoppel - Failure to prevent applicant engaging as objector in planning process - BNY Trust v Treasury Holdings [2007] IEHC 271 (Unrep, Clarke J, 5/7/2007), Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and Analog Devices v Zurich Insurance [2005] IESC 12, [2005] 1 IR 274 considered - Proceedings dismissed (2007/1245JR - Clarke J - 11/1/2008) [2008] IEHC 1

Ryanair Ltd v An Bord Pleanála

Facts: The applicant sought to quash a decision of the respondent as to the granting of planning permission for a second terminal at Dublin Airport. A settlement agreement had been reached and the issue arose as to whether the issues to be litigated in the proceedings were caught by the terms of the settlement. The applicant alleged that the case related to different matters and the respondent was estopped from preventing the litigation on account of its treatment of the applicant in the planning process.

Held by Clarke J. that the applicant was prevented from bringing this litigation on account of the settlement and that the challenge in substance was to the planning permission granted previously. The proceedings would be dismissed.

Reporter: E.F.

BNY TRUST CO (IRELAND) LTD & ARK LIFE ASSURANCE CO LTD v TREASURY HOLDINGS UNREP CLARKE 5.7.2007 2007 IEHC 271

INVESTORS COMPENSATION SCHEME LTD v WEST BROMICH BUILDING SOCIETY 1998 1 WLR 896

ANALOG DEVICES BV & ORS v ZURICH INSURANCE CO & ANOR 2005 1 IR 274 2005 2 ILRM 131 2005/2/242 2005 IESC 12

1. Introduction

2 2 1.1 The need for an expansion in the facilities available at Dublin Airport has been the subject of broad agreement for some time. However, the precise way in which those facilities should be provided, the nature, specification and scale of the facilities, and the parties to provide them, has been the subject of considerable controversy. These proceedings arise out of one aspect of that controversy.

3 3 1.2 In these proceedings the applicant ("Ryanair") seeks to challenge and have quashed a decision of the respondent ("The Board") to grant a planning permission for the development of a second terminal at Dublin Airport ("T2"). The first named notice party ("The DAA") had applied for and obtained the relevant permission. However the DAA has now brought an application seeking an order, pursuant to the inherent jurisdiction of the court, dismissing or striking out the proceedings on the grounds "that the proceedings cannot be properly maintained by reason of an agreement made between ( inter alia) the applicant and the DAA on or about the 15th of March, 2006 ("the settlement agreement") and/or that, having regard to the settlement agreement, the proceedings are an abuse of process". The term T2 is used to refer to the specific proposal now under challenge.

4 4 1.3 The issue which I have to decide is whether that application should be allowed and whether the proceedings should, therefore, be dismissed or struck out on that basis.

5 5 1.4 The agreement referred to as the settlement agreement was an agreement entered into between the parties to previous litigation concerning the provision of a second terminal at Dublin Airport. Those parties included Ryanair and the DAA. It will be necessary to refer in more detail to those proceedings in due course. However it is clear, and common case, that those proceedings were settled as a result of which the proceedings concerned were struck out and Ryanair entered into an agreement which precluded it from challenging certain developments at Dublin Airport. The net issue on this application is as to whether the challenge with Ryanair now brings against the grant of planning permission for T2 is a challenge which is in breach of the terms of that agreement. As a subsidiary issue Ryanair also argues that the DAA are now precluded from seeking to have the proceedings dismissed on the basis of that agreement, by virtue of the fact that the DAA did not object to Ryanair engaging in the planning process both by making observations hostile to the development to the planning authority (Fingal County Council) and by appealing the determination of Fingal County Council to the Board.

6 6 1.5 It should be finally noted that none of the other parties to these proceedings participated in the application. The Board appeared at the commencement of the hearing, purely out of courtesy to the court and for the purposes of indicating that the Board would abide by any order made. As will be seen the Board was not a party to the settlement agreement and has, therefore, no direct legal interest in the issues raised as to the effect of the agreement on the current proceedings.

7 7 1.6 I turn first to the background to the issue.

2. Background Facts

2 2 2.1 As part of the process which has led to the decision to construct a second terminal at Dublin Airport in the manner which is the subject of the planning permission granted by the Board, the Government decided, on the 18th of May, 2005, that such a terminal should be commissioned and constructed by the DAA and that, in due course, the operator of the terminal should be selected by an open competition. Immediately thereafter Ryanair announced its intention to challenge the Government decision and, in July, 2005, instituted proceedings in that regard naming An Taoiseach, the Minister for Transport, the DAA, Ireland and the Attorney General as defendants ("the 2005 proceedings").

3 3 2.2 It should also be noted that there has been a lengthy history of disputes between Ryanair and the DAA (sometimes involving other parties as well) concerning the manner in which Dublin Airport is operated. Many of those disputes have given rise to litigation of one sort or another. Much of that litigation continued in being during the period which is relevant to the issues in this case.

4 4 2.3 It would be fair to say that the underlying basis of much of the complaint which Ryanair makes concerning the operation of Dublin Airport is connected with a contention on the part of Ryanair that the costs associated with the operation of the airport, as passed on to operating airlines (such as Ryanair), are too great. In that context the nature of the proposed second terminal was a subject of some controversy based on a contention on the part of Ryanair, that, amongst other things, the terminal would be built on too great a scale and to too high a standard, thus generating higher operating costs which would, it was said, in turn be passed on through operating airlines to their customers. It should also be noted, in that context, that Ryanair proposed to build a different second terminal at a different location in the airport complex than that settled on as appropriate for T2.

5 5 2.4 In the context of the general proposal for a second terminal at Dublin Airport, a master plan had been developed. In June 2001, the Board of Aer Rianta (the predecessor in title to the DAA) advertised for consultants to develop such a master plan. A consortium comprising of Project Management Group, Skidmore Owings & Merrill Architects and TPS were appointed to prepare the master plan and any relevant planning applications. In March 2003, the Board of Aer Rianta adopted the master plan produced by that consortium which recommended the construction of additional terminal facilities abutting the existing Terminal One.

6 6 2.5 Thereafter, the government decision to which I have referred in May 2005, announced the so called "Aviation Action Plan" which required the DAA to deliver a new second terminal by 2009 and also to bring into operation an additional pier (Pier D) in the existing terminal by 2007.

7 7 2.6 Subsequently, in June 2005, the Board of the DAA decided to appoint expert consultants to review previous master planning work in relation to Dublin Airport and included in the remit of those consultants a requirement to consult with the main home based carriers. In that regard, in July 2005, the DAA appointed Pascall and Watson to conduct that review over a period of approximately three months. In September 2005, Pascal and Watson completed their work and issued a report which was entitled "Capacity Enhancement Recommendation Report for Dublin Airport" and which made a series of recommendations in relation to, amongst other things, the location, operation and capacity of the proposed new terminal and associated pier facilities. The DAA adopted that report as its Medium Term Masterplan ("the Pascall and Watson Plan"). In December 2005, the DAA, having gone through the mandated competitive procurement processes required by both EU law and domestic regulation, appointed a consortium led by ARUP and incorporating Pascall and Watson Architects and Mace Construction Managers as the project management and design team for the T2 project.

8 8 2.7 However prior to that, the DAA had made a statement on the 20th of September, 2005, which announced that the DAA had approved plans to build a fifty thousand square metre passenger terminal...