Weston v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 March 2008
• Neutral Citation: [2008] IEHC 71
• Court: High Court
• Date: 14 March 2008

Weston v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN/

WESTON

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

SOUTH DUBLIN COUNTY COUNCIL

AND

COMBINED ACTION ON WESTON AERODROME

NOTICE PARTY

[2008] IEHC 71

No. 198 J.R./2006

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Condition - Challenge to condition imposed by respondent - Condition that further development of certain class of exempted development would require planning permission - Power to impose non-specified condition - Whether planning authorities precluded from imposing condition as regards extent of exempted development - Failure to provide reasons - Whether reason given for condition sufficient to comply with the statutory duty - Whether any reasonable apprehension in law, irrationality or doubt as to propriety of purpose - Ashbourne Holdings v An Bord Pleanála [2003] 2 IR 114, Killiney and Ballybrack Development Association Ltd v Minister for Local Government [1987] ILRM 878 and Frescati Estates v. Walker [1975] 1 IR 177 applied; Grealish v An Bord Pleanála (Unrep, O'Neill J, 24/10/2006), O'Donoghue v An Bord Pleanála [1991] ILRM 750, Lawson v Fox [1974] AC 803, South Bucks District Council v Porter (No 2) [2004] 1 WLR and Mulholland v An Bord Pleanála (No 2) [2006] 1 IR 453 followed; The State (FHP Ltd) v An Bord Pleanála [1987] IR 698 distinguished; The State (Abenglen Properties Ltd) v An Bord Pleanála [1984] IR 381 mentioned - Planning and Development Regulations 2001 (SI 600/2001), arts 6, 9, part 1 schedule 2 - Planning and Development Act 2000 (No 30), ss 4, 32 & 34 -Relief sought granted (2006/198JR - MacMenamin J - 14/3/2008) [2008] IEHC 71

Weston v An Bord Pleanála

The applicant was a registered company with unlimited liability. It sought to challenge an imposition by An Bord Pleanala of a condition imposed on a decision to grant planning permission. It alleged that the condition which had been imposed was unlawful and sought orders removing such condition from the grant of planning permission. The applicant contended that the condition sought to deny the applicant the benefit of an exempted class of development. The applicant further contended that An Bord Pleanala had failed to provide reasons for the condition.

Held by McMenamin J. in granting an order of judicial review and remitting the matter to An Bord Pleanala that having regard to the unusual evidential features, the reason given for the condition was insufficient to comply with the statutory duty of An Bord Pleanala. There was an obligation to state reasons for the condition clearly, cogently, in a manner to eliminate a reasonably held doubt as to whether there had been an error in law, a misunderstanding or other unlawful basis for the condition.

Reporter: R.W.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S4

PLANNING & DEVELOPMENT ACT 2000 S4(2)

PLANNING & DEVELOPMENT ACT 2000 S4(3)

PLANNING & DEVELOPMENT ACT 2000 S4(2)(b)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART I SCHED II

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 6(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART I SCHED II CLASS 32

IRISH AVIATION AUTHORITY (AERODROMES & VISUAL GROUND AIDS) ORDER 1998 SI 487/1998

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART II ART 9(1)(a)(i)

FRESCATI ESTATES v WALKER 1975 IR 177

PLANNING & DEVELOPMENT ACT 2000 S34(4)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART II ART 9

SCANNELL ENVIRONMENTAL & LAND USE LAW 2006 CHAP 2 PARA 04

PLANNING & DEVELOPMENT ACT 2000 S30

PLANNING & DEVELOPMENT ACT 2000 PART III

PLANNING & DEVELOPMENT ACT 2000 S32(1)(a)

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446

FPH PROPERTIES, STATE v BORD PLEANALA 1987 IR 698

ABENGLEN PROPERTIES v CORPORATION OF DUBLIN 1984 IR 381 1982 ILRM 590

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S26

PLANNING & DEVELOPMENT ACT 2000 S34(1)

PLANNING & DEVELOPMENT ACT 2000 S34(12)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT ACT 2000 S33

INTERPRETATION ACT 2005 S5

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

PLANNING & DEVELOPMENT ACT 2000 S34(2)(vi)

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

O'DONOGHUE v AN BOARD PLEANALA 1991 ILRM 750

GREALISH v BORD PLEANALA UNREP O'NEILL 24.10.2006 2006/27/5728 2006 IEHC 310

SOUTH BUCKS DISTRICT COUNCIL & ANOR v PORTER (NO 2) 2004 1 WLR 1953

KILLINEY & BALLYBRACK LTD v MIN FOR LOCAL GOVT 1978 ILRM 78 1978 112 ILTR 9

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 1

PHILLIPS v MEDICAL COUNCIL 1992 ILRM 469

SALABIAKU v FRANCE UNREP ECHR 7.10.1988 (APP NO 10519/83)

CASE OF BARBERA, MESSEGUE & JABARDO UNREP ECHR 6.12.1988 (APP NO 10590/83)

KENNEDY v DPP & AG UNREP MACMENAMIN 11.1.2007 2007 IEHC 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

1 Judgment of Mr. Justice John MacMenamin dated the 14th day of March, 2008.

2 1. The applicant is a registered company with unlimited liability. It has its registered office at Weston Aerodrome, Leixlip, County Dublin. It is the owner and operator of a licensed aerodrome there.

Background

3 2. In these proceedings the applicant ('Weston') seeks to challenge an imposition by An Bord Pleanála ('the Board') of a condition imposed on a decision to grant planning permission. Weston alleges that the condition which has been imposed is unlawful and seeks orders removing such condition from the grant of planning permission.

4 3. On or about 5 ^th May, 2005 Weston made a planning application to South Dublin County Council ('the County Council') for a retention in respect of the following development: revision, alteration and retention to approved office/clubhouse, hangar and car park at Weston Aerodrome, Lucan, County Dublin.

5 4. The development in respect of which retention planning permission was sought consisted in what is described as a "non-airside" development. Its purpose was to allow air traffic controllers in the control tower sited on top of the "clubhouse" to have a full view of the runway and taxiways. The project consisted in (a) a relocation of the control tower from a central position on the roof of the office/clubhouse to the front elevation of that building, with reduced size of the display and visual part of the control tower, and a slight increase in height; (b) a consequential relocation and retention of navigational aid equipment from the control tower to two storage areas internally under the control tower, to be achieved by lowering the ceiling height of the first floor by 1.945 metres; (c) the relocation and retention of a lift shaft internally, thereby avoiding direct entry to the control tower; the height of the lift shaft to be increased by 1.45 metres; (d) the incorporation of necessary security arrangements by change of user of the ground floor by the provision of office accommodation and reception at ground floor, a slight increase in the bar area, and a reduction in office space at first floor; (e) the proposed use of unroofed areas behind the perimeter parapet walling for air handling units and ventilation equipment; (f) the retention of folding doors at the rear of a hangar.

6 5. In Weston's grounding affidavit, Mr James Mansfield, one of the directors of the company, states that the retention, revision and alteration was necessitated so as to ensure a clear view from the control tower; to ensure that the lift did not terminate at the control tower itself (a security consideration); and (with reference to the hangar) the retention of folding doors at the rear and its division into three units so as to reduce the fire risk to aircraft placed there. Consequently, a car park at the rear of the hangar was to be relocated and an apron provided.

7 6. In response to the application on 29 ^th June, 2005 the County Council as planning authority, issued a notification of a decision to grant permission and retention for the development subject to a number of specified conditions, the reasons for which were set out in a schedule. Weston took no exception to three conditions or to the reasons which are set out therefor. They are material only by way of context, and possible contrast with that impugned.

8 7. Each such condition was justified by an attendant and specified reason; respectively, to ensure that the development was in accordance with the permission, in the interests of public health and the assurance of adequate draining. The meaning and effect of all those stated reasons were, in their context, entirely clear.

9 However, Weston claims that condition No. 4 falls into a different category.

10 8. The condition itself, closely reflected in the ultimate decision of the Board on appeal provides:

"4. Development described in Class 32 of Part 1 of Schedule 2 of Planning and Development Regulations, 2001 as amended, shall not be carried out on the lands at Weston Aerodrome within the administration of South Dublin County Council without a prior grant of planning permission from the planning authority or from An Bord Pleanála on appeal."

11 The only reason for this condition is stated to be "in the interest of orderly development". Weston states that the effect of such condition, if upheld, would be to negate a more general type of exemption for the development of 'aerodromes', (a term more redolent of the nineteen thirties than today) thereby rendering it susceptible to ordinary planning processes and stifling the further development of Weston. A further condition imposed by South Dublin County Council sought to restrain increases in aircraft movements, training exercises or any material change in the type or capacity of...