St. Margaret's Concerned Residents Group v Dublin Airport Authority Plc
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 21 November 2017 |
| Neutral Citation | [2017] IEHC 694 |
| Docket Number | 2017 No. 86 MCA |
| Court | High Court |
| Date | 21 November 2017 |
[2017] IEHC 694
THE HIGH COURT
Barrett J.
2017 No. 86 MCA
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)
AND
Planning & Development – S. 160 of the Planning and Development Act, 2000 – Breach of planning condition – Development of new runway – Unauthorized developments – Non-compliance with pre-commencement condition
Facts: The applicants sought a declaration that the works carried out by the respondent were unauthorized as they were in breach of planning permission. The applicants alleged that An Board Pleanala ('Board') had granted the planning permission to the respondent in 2007 on the condition that the respondent would submit a comprehensive environmental protection plan in writing to the planning authority. The applicants submitted that the respondent did not comply with the said condition prior to the commencement of the works. The respondent alleged that it had submitted a waste management plan to the planning authority albeit in 2017. The respondent submitted that the omission to comply with the said condition was non-intentional.
Mr. Justice Max Barrett refused the reliefs sought by the applicants. The Court held that the respondent had made a mistake by complying with the relevant condition after the commencement of the works for the construction of the runaway. The Court, however, noted that such a mistake was bona fide and not adverse to the public interest involved in the construction of the runway. The Court pointed out that before exercising its discretion under s. 160, the Court should have considered the bona fides of the developer, public interest, administrative inconvenience and expenditure already incurred by the developer to carry out the proposed development. The Court observed that once there was a substantial compliance with the requisite condition, there was no unauthorized development.
(Numbers in square brackets are paragraph numbers)
I. Overview [1]
II. Background and Reliefs Sought [2]
(i) Background. [2]
(ii) Reliefs Sought. [4]
III. Planning Permission [5]
IV. Condition 12 [6]
V. Letter of 28th October, 2016 [8]
VI. Council's Deliberations Previous to Letter of 28th October, 2016 [10]
VII. Application for Extension of Duration of Permission [11]
VIII. Letters of 9th February, 2017 [17]
(i) Letter to Dublin Airport Authority. [17]
(ii) Letter to Fingal County Council. [18]
IX. Submission of Waste Management Plan on 10th February, 2017 [19]
X. Waste Management Plan [21]
XI. The Response Given to the Waste Management Plan [23]
XII. Council's Deliberations Previous to Letter of 15th February, 2017 [25]
XIII. Letter of 16th February, 2017 [27]
(i) Events Previous to 16th February, 2017. [27]
(ii) Letter of 16th February, 2017. [30]
XIV. The Rilta Documentation [31]
(i) Overview. [31]
(ii) The Waste Disposal/Recovery Certificate. [33]
(iii) The Movement Document. [36]
XV. Materiality [40]
XVI. Some Further Aspects of the Affidavit Evidence [45]
(i) Determination of Fingal County Council to Facilitate Airport Extension? [45]
(ii) Oversight by Dublin Airport Authority. [49]
(iii) Locus Standi. [51]
XVII. Section 160 [53]
(i) Substance. [53]
(ii) Prospective Effect? [54]
(iv) Unauthorised Development. [57]
XVIII. Some Case-Law of Relevance [58]
(i) Mahon v. Butler [58]
(ii) Sweetman v. Shell E&P Ireland Ltd [62]
(iii) Conroy v. Craddock [67]
(iv) Dandean Ltd v. Talebury Properties Ltd [69]
(vii) Meath County Council v. Murray [75]
XIX. Some Statutory Provisions of Relevance [83]
XX. The Importance of the Dublin Runway Development [84]
XXI. Conclusion [86]
Dublin Airport Authority did not do as was strictly required of it by a planning permission but contends that it has done enough to justify the refusal of the declaratory reliefs now sought against it. The applicants maintain that such non-compliance as has occurred is of material consequence and that the declaratory reliefs sought ought now to be granted.
(i) Background.
This application, made under s.160 of the Planning and Development Act 2000, as amended ("PADA"), arises out of a planning permission granted by An Bord Pleanála on 29th August, 2007. That permission relates to the development of a new runway at Dublin Airport. That runway, if constructed, will be 3,110 metres long and 75 metres wide. The building of the new runway requires the demolition of various structures, among them a fire-training unit and ancillary buildings, as well as other works of a significant nature, including the closing of portions of roads and the related realignment of roads. So it is a substantial infrastructural development. At the time when planning permission was sought, the applicants objected to the development. Having considered matters, An Bord Pleanála, in granting permission, attached various conditions to the permission, including one particular condition (Condition 12) that is the condition of focus in this case.
Dublin Airport Authority did not proceed with the development in 2007. In fact it did nothing to proceed with the development until 2016. The Great Recession played a part in this slow progress. One of the things Dublin Airport Authority did in 2016 was, on 6th October 2016, it sent to Fingal County Council what was referred to at the hearing of the within application as a "compliance submission". To understand the significance of this compliance submission, the court looks, in the next part of its judgment, at the substance of the planning permission. But before doing that it is useful briefly to touch upon the reliefs now sought.
(ii) Reliefs Sought.
The two principal reliefs sought by the applicants are:
(1) [per item (4) of the notice of motion] a declaration that the works carried out by Dublin Airport Authority, its servants and/or agents, commencing on 16th December, 2016 until 15th February, 2017, comprising, inter alia, (a) the establishment of a contractor's compound, (b) hedge-row removal and tree-felling works (including along Barberstown Lane, Co Dublin), (c) the erection of site security fencing to the site perimeter, (d) the demolition of the former Airport Fire Training Ground buildings and Training structures (including the house, aircraft simulators, smoke training buildings and fuel management system), (e) the demolition of existing high mast lighting and associated cabling at the former Airport Fire Service Training Ground and the removal of existing hard standings, (f) the demolition of the existing farm outbuildings adjoining the former Airport Fire Service Training Ground and (g) associated works in respect of all of the foregoing constitute unauthorised development comprising unauthorised works which have been carried out without planning permission and/or in non-compliance with the Planning Permission granted by An Bord Pleanála on 28 August 2007 (Ref. No. PL. 06F.217429), in particular Condition No 12 of same; and
(2) [per item (3) of the notice of motion] an order directing that any development that is being and/or may be carried out pursuant to Planning Permission Ref. No. PL 06F.217429 by the Respondent, its servants and/or agents and/or any connected persons is to be carried out in conformity with said planning permission and every condition to which said planning permission is subject.
The planning permission takes the usual form of such permissions. It recites the detail of the proposed development, states that the An Bord Pleanála's decision is to grant permission, identifies the reasons and considerations that inform that decision, and sets out the conditions applicable to the permission. So, for example:
– Condition 1 provides, inter alia, that ' The development shall be carried out in accordance with the plans and particulars'.
– Condition 2 provides that ' This permission is for a period of 10 years from the date of this order.'
– Condition 3 provides, inter alia, that ' On completion of the construction of the runway hereby permitted, the runways at the airport shall be operated in accordance with the mode of operation, option 7b – as detailed in the Environmental Impact Statement Addendum...as received by the planning authority on 9th day of August, 2005'. These include, for example, that 'Runway 10L-28R shall not be used for take-off or landings between 23:00 hours and 07:00 hours'. The permission then gives a reason for Condition 3: '[T]o ensure the operation of the runways in accordance with the mitigation measures set out in the Environmental Impact Statement'.
– Condition 5 provides, inter alia, that ' On completion of construction of the runway hereby permitted, the average number of night time aircraft movements at the airport shall not exceed 65/night (between 23:00 hours and 07:00 hours) when measured over the 92 day modelling period.'
Condition 12 of the runway planning permission, the key condition at issue in the within application provides as follows:
'Prior to commencement of development, the developer...
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