Weston -v- An Bord Pleanala, [2008] IEHC 71 (2008)

Docket Number:2006 198 JR
Party Name:Weston, An Bord Pleanala
Judge:Mac Menamin J.
 
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THE HIGH COURT JUDICIAL REVIEW2006 No. 198 J.R.IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)BETWEEN/WESTONAPPLICANTANDAN BORD PLEANÁLARESPONDENTSOUTH DUBLIN COUNTY COUNCILANDCOMBINED ACTION ON WESTON AERODROMENOTICE PARTYJudgment of Mr. Justice John MacMenamin dated the 14th day of March, 2008.1. 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.Background2. 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.3. On or about 5th 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.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.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.6. In response to the application on 29th 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.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.However, Weston claims that condition No. 4 falls into a different category.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."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 existing aircraft using the aerodrome. It stipulated that any material increase or change should be the subject of a separate planning permission. The reason for this condition was fully described and included the requirement that there should be full assessment of consequences that might arise from increase or change in the existing use of the aerodrome. Thus the reason for this condition was clearly justified and explained by the County Council.9. The decision of the County Council was the subject of a third party appeal to the Board. This appeal was taken by an unincorporated association, 'Combined Action on Weston Aerodrome'. Ultimately, on 20th December, 2005, the Board granted planning permission, subject however to a condition slightly amended from that imposed by the County Council."Development described in Class 32 of Part I of Schedule 2 to the Planning and Development Regulations, 2001,as amended, shall not be carried out on the site area without a prior grant of planning permission."The stated reason was, simply repeated "in the interest of orderly development". Two other conditions imposed are immaterial. This condition and the stated reason therefor is now challenged.10. By way of background, the prior relationship between the applicant and the respondent has been a chequered one, surrounded by much controversy and no little friction. Ultimately, after its acquisition by Mr. Mansfield's company, Weston has had the benefit of a number of more recent planning permissions in the last decade or so, added to a long established right to use the lands for the purpose of a licensed aerodrome since 1939. Substantial development contested on many quarters has taken place since the Mansfield interests purchase.11. Weston contends that the effect of the condition now in suit would be to inhibit immediate response to what could be regarded as safety and security issues, including security fencing or alterations to taxiways or aprons which might be requested by the Irish Aviation Authority; and that it is unreasonable to remove or negate the effect of an exemption under the 2001 Regulations as a more immediate response may be required having regard to the nature of an aerodrome. The rationale for the general exemption provided for by the Minister as an exception to the Planning Act, 2000 is to allow for rapid and less inhibited development works at airports developed as part of the State infrastructure.12. In order to place this contention in context it is necessary first to consider the general ambit of the Planning Act of 2000 with regard to exemptions, and second to consider the specific exemption to which this application relates. The attack on the decision is mounted on three fronts; vires, the duty to give reasons, and proportionality.(i) Are the conditions and the Regulations under which it is made ultra vires?Statutory provisions13. The principal categories of development exempted from the requirement to obtain planning permission are set out in s. 4 of the Planning and Development Act, 2000. The relevant provision, s. 4(2), states that:"(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that- (i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or (ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described). (b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations. (c) Regulations under this...

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