South Dublin County Council v Fallowvale Ltd and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice William M. McKechnie
Judgment Date28 April 2005
Neutral Citation[2005] IEHC 408
Date28 April 2005
Docket Number[No. 90 MCA/2002]

[2005] IEHC 408

THE HIGH COURT

[No. 90 MCA/2002]
SOUTH DUBLIN CO COUNCIL v FALLOWVALE LTD
IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000>
2000,
AND IN THE MATTER OF AN APPLICATION BY SOUTH DUBLIN COUNTY COUNCIL:

BETWEEN

SOUTH DUBLIN COUNTY COUNCIL
APPLICANT

AND

FALLOWVALE LIMITED AND WESTON LIMITED
RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S160

IRISH AVIATION AUTHORITY ACT 1993

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

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 207

PLANNING & DEVELOPMENT ACT 2000 S160(1)

PLANNING & DEVELOPMENT ACT 2000 S4(2)

PLANNING & DEVELOPMENT ACT 2000 S5(1)

PLANNING & DEVELOPMENT ACT 2000 S6(1)

PLANNING & DEVELOPMENT ACT 2000 S9(1)

CONVENTION ON INTERNATIONAL CIVIL AVIATION (CHICAGO CONVENTION)

CURLEY v GALWAY CORP UNREP KELLY 11.12.1998 1999/6/1372

CABLELINK LTD v BORD PLEANALA 1999 1 IR 596 1999/4/658

KEANE & NAUGHTON v BORD PLEANALA & CMRS OF IRISH LIGHTS 1997 1 IR 184 1995/19/4816

CARTY & CARTY CONSTRUCTION LTD v FINGAL CO COUNCIL 1999 3 IR 577

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 7

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 CLASS 32

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

LAMBERT v LEWIS & KIELY UNREP GANNON 24.11.82 1983/3/611

DILLON v IRISH CEMENT LTD UNREP FINLAY 26.11.1986 2004/13/2866

O'SULLIVAN & SHEPHERD IRISH PLANNING LAW & PRACTICE 7ED 1991

DUBLIN CORP v MOORE 1984 ILRM 339 1983/9/2490

FINGAL CO COUNCIL v CREAN & SIGNWAYS HOLDINGS LTD UNREP O CAOIMH 19.10.2001 2001/9/2449

LENNON v KINGDOM PLANT HIRE LTD UNREP MORRIS 13.12.1991 (EX TEMPORE)

DUBLIN CO COUNCIL v TALLAGHT BLOCK CO LTD 1982 ILRM 534 1982/4/766

DUBLIN CORP v MAIDEN POSTER SITES LTD 1983 ILRM 48

DUBLIN CORP v MCGOWAN 1993 1 IR 405 1993/2/303

PLANNING & DEVELOPMENT ACT 2000 S162(1)

PLANNING & DEVELOPMENT ACT 2000 S157(4)(C)

WESTPORT URBAN DISTRICT COUNCIL v GOLDEN & ORS 2002 1 ILRM 439 2000/18/6742

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 CLASS 39

WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374 1994/13/4310

MORRIS v GARVEY 1983 IR 319 1982 ILRM 77 1982/7/1253

IRISH AVIATION AUTHORITY (AERODROMES & VISUAL GROUNDS AIDS) ORDER 2000 SI 334/2000

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(G)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 CLASS 34

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 CLASS 32(A)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 CLASS 32(C)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 CLASS 32(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 CLASS 32(D)

PLANNING AND ENVIRONMENTAL LAW:

Exempted development

Injunction- Aerodrome - Whether planning permission necessary for development - Whether works only affecting interior of building - Whether exempted by regulation - Onus of proof - Dublin Co Co v Tallaght Block Company Limited [1982] ILRM 534; Dublin Corp v Sullivan (Unrep, Finlay P, 21/12/1984); Lennon v Kingdom Plant Hire Ltd (Unrep, Morris J, 13/12/1991); Keane v An Bord Pleanála [1997] 1 IR 184; Carthy v Fingal Co Co [1999] 3 IR 577 and Westport UDC v Golden [2002] 1 ILRM 439 - Irish Aviation Authority Act 1993 (No 29) - Planning and Development Act 2000 (No 30), ss 3, 4(1)(h), 4(2), 157, 160 and 162 - Planning and Development Regulations 2001 (SI 600/2001), arts 5, 6, 7 and 9, sch 2, - Declarations granted that development required planning permission (2002/90/MCA - McKechnie J - 28/4/2005) [2005] IEHC 408

South Dublin County Council v Fallowvale Ltd

class 32(a) of the Planning and Development Regulations 2001 provides exemption from the requirement to have planning permission for the “construction or erection of an extension” to an airport operational building. The applicant commenced enforcement proceedings pursuant to section 160 of the Act of 2000 against the respondents in respect of works which it alleged were unauthorised, not having previously obtained planning permission. The respondents contended that the works in question were exempted development and did not require planning permission by virtue of, inter alia, of the Regulations of 2001. In respect of one of the structures, the respondents had applied for retention permission prior to the institution of the within proceedings.

Held by McKechnie J in holding that most of the development complained of was unauthorised as not being exempted under the Regulations of 2001 or otherwise:

1. that a moving party had to satisfy the court, by probable evidence, of the proofs which were essential to a successful application under section 160 of the Act of 2000 but when the development complained of was sought to be excused under cover of either section 4 of the Act of 2000 or under the exempted developments provisions in the Regulations of 2001, the onus of establishing that point was upon he who asserted.

2. That compliance with one statutory regime did not absolve the affected party from compliance with a different regime unless such was expressly provided for.

3. That the exemption from a requirement of planning permission contained in class 32(a) of the Regulations of 2001 applied to an extension of a building which already existed and did not cover the demolition of a structure and its replacement by another structure.

Reporter: P.C.

Mr. Justice William M. McKechnie
1

On 1st day of October, 2002 these proceedings were instituted under s. 160 of the Planning and Development Act,2000 wherein South Dublin County Council sought certain prohibitary and mandatory orders against the respondents arising out of what is alleged to have been multiple infringements of the provisions of that Act. This in respect of what is known as Weston Aerdrome, Back Weston, Lucan in the County of Dublin. Both the facts and legal matters at issue are difficult and complex with minimal or no common ground between the parties. In all, at least eight affidavits were filed on behalf of the applicant and seven by or on behalf of the respondents. Each of these had lengthy exhibits. In addition, arising out of the principal affidavit of Mr. Abe Jacob, a notice of motion was issued on 19th December, 2002 by the respondents seeking an order striking out very many of the averments contained in it, on the grounds that the same were scandalous, unnecessary, invidious and prejudicial. Furthermore, several witnesses were cross examined on oath and both parties made comprehensive submissions.

2

The applicant, South Dublin County Council, is both the local authority and the planning authority for its functional area which is the administrative county of South Dublin. The first named respondent is a limited liability company which has as its principal shareholder and main director one Mr. James Mansfield of Keatings Park, Rathcoole, County Dublin. Mr. Mansfield is a well known and highly successful business man who has many enterprises operating within this jurisdiction. In mid 2002 Fallowvale Limited acquired the entire shareholding in the second named respondent, Weston Limited, which, since its incorporation, had been controlled and/or operated by one Captain P.W. Kennedy. Since in or about 1938 Captain Kennedy either personally or through a corporate vehicle effectively owned and operated Weston Aerodrome which for all relevant purposes is located within the administrative area of South Dublin County Council. It is apparently the busiest and largest private aerodrome in the State, with more than 60 residential aircraft and 8 residential helicopters. It has a staff of about 30/35 and caters for approximately 150,000 aircraft movements per annum. It facilitatesinter alia helicopters and light aircraft. From an aviation point of view its regulatory authority is the Irish Aviation Authority established under the Irish Aviation Authority Act, 1993.

3

In late August 2002 the applicant became aware of certain works being carried out at the aerodrome. This led to the first of many visits, on 4th September of that year, by Mr. Jim McInerney who is a planning inspector with the Council. It was also he who swore the principal affidavits on behalf of the planning authority. As a result, the dispute in this case centres around those works or uses which since its acquisition by Fallowvale Ltd., have been carried out or carried on at the aerodrome by the respondents or either of them. It is asserted by the Council that such works/uses require planning permission which has not been obtained. On behalf of the respondents, it is claimed that such development is exempted from the requirements of the Planning and Development Act,2000 under a variety of headings, including s. 4(1)(h) thereof and/or under Class 32 and Class 39 of the Planning and Development Regulations 2001 ( S.I. No. 600/2001) "The Regulations". Hence these contested proceedings between the parties.

4

As part of the documentation served a great number of drawings and photographs were produced and used in evidence. Of particular significance to an understanding of the live issues are the drawings which have been identified as No. TD-02, TD-03, an extract from the Ordinance Survey map of the location (being that revised in 2002), a drawing submitted in an application for retention made in April 2000 as well as certain other maps drawn up in July 2002 in relation to a structure known as "The Bungalow". Several photographs were used and these included two aerial photographs, one taken in 1997 and the other in the year 2000. Other individual maps and photographs were also from time to time, adverted to and availed of.

5

At the outset of these proceedings there were several separate structures or uses in issue to which at a later date were added a further item, namely that which has been described as a "mound" of earth. In brief terms these...

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