Weston Ltd v an Bord Pleanála & Other

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 01 July 2010
• Neutral Citation: [2010] IEHC 255
• Court: High Court
• Date: 01 July 2010

Weston Ltd v Bord Pleanála

JUDICIAL REVIEW

BETWEEN

WESTON LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

SOUTH DUBLIN COUNTY COUNCIL

AND

COMBINED ACTION ON WESTON AERODROME

NOTICE PARTIES

[2010] IEHC 255

[No. 521 J.R./2009]

THE HIGH COURT

PLANNING & ENVIRONMENTAL LAW

Planning permission

Intensification of use - Material change of use - Nature of activity - Proper and sustainable planning of area - Error of law - Unreasonableness - Requirement to state reasons - Fair procedures - Enforcement - Burden of proof - Whether material intensification of use - Whether respondent correct in refusing planning permission - Whether respondent abrogated itself from planning authority powers - Whether respondent entered realm of enforcement - Whether respondent acted unreasonably - Whether respondent committed error of law - Whether respondent gave proper reasons for its decision - Whether inspector's report rational - Kelly v An Bord Pleanála (Unrep, Flood J, 19/11/1993) and Lancefort Ltd v An Bord Pleanála (Unrep, McGuinness J, 12/3/1998) followed - Deerland Construction Ltd v Aquaculture Licences Appeal Board [2009] 1 IR 673; Coffey v Heborn Homes (Unrep, O'Hanlon J, 27/7/1984); Butler v Dublin Corporation [1999] 1 IR 565; Patterson v Murphy [1978] ILRM 85; Lanigan v Barry [2008] IEHC 29 (Unrep, Charleton J, 15/2/2008); Cork County Council v Slattery Pre-Cast Concrete Ltd [2008] IEHC 291 (Unrep, Clarke J, 19/9/2008); Galway County Council v Lackagh Rock Ltd [1985] IR 120; Molembuy v Kearns (Unrep, O'Sullivan J, 19/1/1999) and Dublin County Council v Carty Builders and Company Ltd [1987] IR 355 considered - Planning and Development Act 2000 (No 30), ss 34(10), 146A and 160 - Fisheries (Amendment) Act 1997 (No 23), s 40(8)(a) - Application dismissed (2009/521JR - Charleton J - 1/7/2010) [2010] IEHC 255

Weston Ltd v An Bord Pleanála

Facts: The applicant, a company and controller of an airport, sought to challenge a decision of the respondent refusing permission for six light aircraft hangers. The decision was impugned on the basis that the applicant claimed that the respondent had arrogated to itself powers to stop an intensification of use by decision as to what buildings were appropriate to the current use. The proceedings were both an application for leave and a final hearing. It was argued that previous planning permissions had limited the Aerodrome to low levels of use that obtained prior to 1964 and that there was no legal basis upon which the respondent could anticipate an intensification of use and thereby refuse planning permission for what would otherwise be a lawful development, entailing that the respondent had erred in law and acted unreasonably.

Held by Charleton J. that intensification either gradual or sudden, openly or by stealth, was not capable of being lawfully used to avoid planning controls. It was not wrong for a planning authority to refuse planning permission on the basis that the development proposed was consistent with a more extensive use of an existing facility such as that which would amount to an intensification of use. The respondent was correct to refuse the application. It could not have been expected by any reasonable planner that the applicant would have exaggerated the number of planes using the airport. As the level was set at 80 and a recent permission had given space for 20-30 aircraft and as 30 were parked outdoors, it became impossible to attempt to undermine the decision by reference to any alleged error law or any basis whereby it asserted that it flew in the face of reason or common sense. The respondent had approached the case rationally and appropriately. None of the arguments advanced had met the substantial grounds threshold to initiate judicial review and the application would be dismissed.

Reporter: E.F.

WESTON LTD v BORD PLEANALA UNREP O'KEEFFE 19.5.2009 (EX TEMPORE)

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S34(10)

PLANNING & DEVELOPMENT ACT 2000 S146A

LANCEFORT LTD v BORD PLEANALA & ORS MCGUINNESS 12.3.1998 1998/8/2354

PLANNING & DEVELOPMENT ACT 2000 S34(10)(B)

FISHERIES (AMDT) ACT 1997 S40(8)(A)

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNICATIONS 2009 1 IR 673 2008/11/2331 2008 IEHC 289

COFFEY v HEBRON HOMES LTD & ORS UNREP O'HANLON 27.7.1984 1984/6/1822

SCANNELL ENVIRONMENTAL & LAND LAW USE 2006 PARA 2.100

BUTLER & ORS v DUBLIN CORP 1999 1 IR 565

PATTERSON v MURPHY & TRADING SERVICES LTD 1978 ILRM 85

LANIGAN & BENGHAZI LTD (T/A TULLAMAINE CASTLE STUD) UNREP CHARLETON 15.2.2008 2008/34/7462 2008 IEHC 29

CORK CO COUNCIL & ORS v SLATTERY PRE-CAST CONCRETE LTD & ORS UNREP 19.9.2008 2008/8/1581 2008 IEHC 291

GALWAY CO COUNCIL v LACKAGH ROCK LTD 1985 IR 120 1985/5/1197

MOLUMBY & ORS v KEARNS & ORS UNREP O'SULLIVAN 19.1.1999 1999/18/5619

DUBLIN CO COUNCIL v CARTY BUILDERS & CO LTD 1987 IR 355 1987/2/522

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PARA 2.64

KELLY v BORD PLEANALA UNREP FLOOD 19.11.1993 1994/4/1159

1 1. Weston Aerodrome has recently been renamed Weston Executive Airport. It is controlled by the applicant Weston, which has recently become an unlimited liability company. This airfield is situated in a green belt area of West County Dublin near Lucan.

2 2. Weston seeks to challenge a decision of An Bord Pleanála ("the Board") dated the 20 ^th March, 2009, whereby it was refused permission to erect six conjoined light aircraft hangars, together with all associated site works and services, at the northern end of Weston Executive Airport. Weston argues the refusal was wrong, basically because they claim that the Board arrogated to itself from the planning authority powers to stop an intensification of use by decision as to what buildings were appropriate to the current use.

3 3. The airfield has a history dating back to the 1930s. It began as some basic kind of landing strip. At some stage prior to 1964 the commencement of planning controls by legislation, apparently, a tarmac landing strip was laid down. Within the era of planning control, various applications for retention permission, or for development, were granted either by the local authority or by An Bord Pleanála, on appeal. These included the extension of the existing runway into a nearby farm which had been bought for that purpose. This increased the size of Weston Executive Airport to around 120 hectares. Because the long taxiway associated with the runway was an exempted development under the Planning Acts 2000 - 2007, this was also built in recent times. The premises originally had some outbuildings in which some business associated with an airfield might be transacted and these were developed in accordance with planning permissions or retention permissions.

4 4. For the purpose of this judgment I need to refer in detail to two prior planning decisions and the conditions attaching thereto before dealing with the decision under consideration in this judicial review. This is both an application for leave, where substantial grounds for challenging the decision must be shown, and a final hearing; as the procedure has been telescoped by order of Kearns P.

Planning Decisions

5 5. By decision of An Bord Pleanála, having the reference number PL 06S 131149 dated the 5 ^th December, 2003, the applicant was refused permission to build six aircraft hangars on the northern end of Weston Executive Airport. This is very close indeed to the location in respect of which planning permission was sought in 2008 for six aircraft hangars in the decision now under review. The Board made a split decision in 2003 whereby one hangar of around 3,500m ² was permitted, together with an office and clubhouse, car parking spaces, aircraft parking and a new access for vehicles to the nearby minor road. An Bord Pleanála considered this development to be on a scale consistent with the existing use and character of what was then called the Weston Aerodrome. Permission for five further airport hangars, having a total area of 11,200m ², was refused. The reason for refusal was given in the Schedule, which I now quote:-

"It is considered that the development of hangars A-E and associated car parking would constitute a greatly expanded development resulting in a significant intensification of use of Weston aerodrome which would be inconsistent with the existing use and character of the aerodrome. The Board is not satisfied, on the basis of the submissions made in connection with the planning application and the appeal, that such intensification of use would not seriously injure the amenities of the area or of property in the vicinity. The development of hangars A-E would, therefore, contravene the zoning provisions of the area - to preserve a green belt between development areas - and would be contrary to the proper planning and development of the area."

6 6. Notwithstanding the clear reasons for this refusal, Weston then made a further application for planning permission to develop hangar space amounting to a further 3,000m ² at the southern end of the aerodrome. This was in the vicinity of the agricultural buildings at Egan's farm, which Weston had bought for the ostensible purpose of extending the runway. By decision of An Bord Pleanála having the reference number PL 09.213348 dated the 16 ^th December, 2005, this plan was turned down. The reasons were given as follows by the Board:-

"Having regard to the location of the site in an isolated and separate location away from the main aerodrome facilities to the North East of the aerodrome, it is considered that the proposed development is unacceptable in terms of the orderly development by reason of facilitating an intensification of use of the aerodrome in a piecemeal way, which would conflict with the terms and conditions of the...