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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Aer Rianta Cpt v. An Bord Pleanala [2002] IEHC 69 (25 June 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/69.html Cite as: [2002] IEHC 69

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THE HIGH COURT

JUDICIAL REVIEW

2000 No 225 JR

IN THE MATTER OF SECTION 82(3A) and (3B) OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1963 (AS AMENDED)

BETWEEN

AER RIANTA CPT

Applicant

and

AN BORD PLEANALA

Respondent

and

GANNON HOMES LIMITED IRISH AVIATION AUTHORITY

FINGAL COUNTY COUNCIL

Notice Parties

JUDGMENT of Mr Justice Kelly delivered the 25th day of June, 2002.

Introduction

1.      On the 16th August, 1999 Fingal County Council granted a planning permission to Gannon Homes Limited for a development consisting of a car park with 3,500 car parking spaces together with associated facilities. These facilities included bus shelters, hard standing for service vehicles, a biocycle waste water treatment and staff facilities. The development is to be located at Turnapin Great, Swords Road (Old Airport Road), Santry, Co Dublin.

2.      Aer Rianta appealed the decision of Fingal County Council to An Bord Pleanála.

3.      On the 9th March, 2000 An Bord Pleanála made its decision on the appeal. It decided to grant permission for the development subject to eight conditions.

4.      These proceedings were commenced on the 5th May, 2000 by the issue of a notice of motion seeking leave to apply for judicial review of the decision of An Bord Pleanála. That application was heard over three days in October, 2000 and was ruled upon by Butler J. on the 8th November, 2000. He granted the applicant leave to apply for judicial review but did so on just one of the nineteen grounds which had been advanced by it. All other grounds were rejected.

5.      This hearing has accordingly proceeded on that single ground to which I will turn in more detail in a moment.

The Reliefs Sought

6.      The principal relief sought is Certiorari directed to the decision of An Bord Pleanála of the 9th March, 2000. Declaratory relief is also sought to the effect that that decision is null and void and of no effect together with a declaration that the respondent erred in law in failing to attach any or any proper weight to the submissions and/or observations of the applicant in relation to safety and/or land use allocation in reaching its decision. A declaration is also sought that the respondent is required to have regard to the opinion and/or views of the applicant in relation to safety issues and/or land use allocation in determining planning appeals which involve or might involve efficient development affecting the operation, safety, management and development of airports.

The Permitted Ground.

7.      The sole ground which the applicant may rely upon in support of its claim is that set out at paragraph 17 of the statement grounding the application for judicial review. It reads:

"The respondent erred in law in failing to have proper regard to the provisions of the planning authority's development plan. In particular, the respondent failed to have regard to the status of red (safety) areas under the said plan, or to the requirement to have regard to the observations of the applicant as an airport operator under the said plan. Further, or in the alternative, the respondent erred in failing to give reasons for departure from the provisions of the development plan and/or granting planning permission in material contravention of the development plan. In circumstances where An Bord Pleanála exercises its power under s.14(8) of the Local Government (Planning and Development) Act, 1976 (as it did in this case) it must give special or additional reasons for so doing: the respondent failed to do so in this case."

8.      Notwithstanding that this is the only ground which has to be considered, this hearing went on for many days. One reason for that was that the same evidence as was used for the leave application was relied on even though eighteen of the grounds to which it was directed were irrelevant.


 
History of the Planning Application

9.      The applicant has at all times opposed the planning permission sought by Gannon Homes Limited. It has done so principally on the ground that the site for development is within what is called a red (safety) area of the approach to a runway at the airport known as runway 16/34. A red (safety) area is the area at the end of a runway strip where development is restricted in the interest of the safety of aircraft passengers and the public. The proposed development is located in proximity to the southern end of runway 16/34 at Dublin airport, lying about 300 metres from the end of that runway.

10.      It is the location of the proposed development which has caused concern to the applicant. It is of the view that the proposed development presents an unacceptable risk to safety.

Red (Safety) Areas

11.      The phrase red (safety) area is a term which describes areas around Irish airports within which development is restricted in the interests of the safety of aircraft passengers and the public. The use of the word "red" has its origin in the colour used to delineate the areas on the relevant development plans. Safety areas of this type are to be found in the vicinity of airports throughout the world.

12.      It is appropriate that the applicant should be concerned with questions touching upon the safety of the airport.

13.      Under the provisions of the Air Navigation and Transport (Amendment) Act, 1998 the applicant is charged with the efficient operation safety, management and ongoing operation and development of Dublin airport. Section 23(1)(b) of the Act requires inter alia that there be included in the memorandum of association of the applicant an objects clause to the effect that Aer Rianta would have the power to "take all proper measures for the safety, security, management, control, regulation, operation, marketing and development of its airports". Section 24(1)(b) of that Act obliges the applicant to "take such steps either alone or in conjunction with other persons as are necessary for the efficient operation, safety, management and development of its airports".

The Development Plan

14.      Fingal County Development Plan of 1999 consists of both a written statement and fourteen maps. The written statement points out that it is essential that both it and the maps be referred to in considering the proper planning and development of the area. It states that the maps contain the details of local objectives and that it is essential that particular attention be given to them when considering the local objectives. Dublin airport is identified in map no. 1 and map no. 8.

15.      Insofar as land use policy is concerned page 38 of the written statement of the Development Plan makes it clear that "car park/commercial surface" within an agricultural zone is "open for consideration". The plan defines the term "open for consideration". It is defined as meaning "the use is generally acceptable except where indicated otherwise and where specific factors which may be associated with the use (e.g. scale) would result in the proposed use being contrary to the zoning objective".

Material Contravention

16.      A large part of the applicant's case consists of an assertion that the grant of planning permission in this case constituted a material contravention of the development plan. If such be the case then clearly the planning authority in the first instance could not have granted it without first going through the statutory procedure which is prescribed in such an event. Whilst it is accepted that An Bord Pleanála is entitled to depart from the development plan (see section 14(8) of the Local Government (Planning & Development) Act, 1976) it is said that if it does so it must give special or additional reasons for so doing. As it allegedly failed to do so in the present case its determination ought to be quashed.

17.      Neither the planning authority nor An Bord Pleanála appear to have considered that the development for which they were granting permission constituted a material contravention of the 1999 development plan. That is not of course the last word on the matter by any means but it is a little surprising that if the applicant were of the belief that the planning authority had granted a permission which materially contravened the development plan that it did not at that stage seek to have its decision quashed rather than proceed with the statutory appeal to An Bord Pleanála. Furthermore the applicant does not appear to have submitted either to the planning authority or An Bord Pleanála that the development did or would constitute a material contravention of the development plan. Be that as it may such an argument has been put forward here and evidence has been led from all sides in relation to it. I therefore propose to give my conclusions in relation to this aspect of the applicant's case.

18.      I have already given a brief outline of the 1999 Fingal County Development Plan insofar as it is relevant. The subject site is zoned "B - to protect and provide for the development of agriculture and rural amenity". Commercial surface car parks are considered to be open for consideration in a "B" zone. As I have already pointed out open "for consideration" means the use is generally acceptable except where indicated otherwise and where specific factors which may be associated with the use would result in the proposed use being contrary to the zoning objectives.

19.      The subject site and indeed the airport are included in an area which is covered by local objective 131 which is to "carry out a major study for the long term development of this area". There is a proposed light rail line which traverses the northern section of the site and as already indicated a portion of it is located within the airport red approach area as shown on sheet no. 8.

20.      It is clear therefore, that the subject site lies within the airport study area.

It is important to bear in mind that the planning permission which is the subject of criticism in these proceedings is a temporary one to last for a period of five years only.

21.      When the matter was before the planning authority the planning officer's report stated as follows: "The provision of a temporary (five years) car parking on the lands is not considered likely to prejudice the outcome of the major study to be made of the area comprising some thousands of acres which will be undertaken when the draft development plan becomes a new Fingal County Development Plan".

22.      Likewise the senior inspector appointed by An Bord Pleanála took the same view he said

"Neither do I see any reason to refuse permission on grounds of zoning. A new Fingal County Development Plan has been adopted. (The submissions made by the parties were made in advance of its adoption but I see no reason to circulate this issue for further comment as nothing of substance has changed from the draft which has been commented upon). The site is and was in an area subject to an agricultural zoning objective but one that includes the entire airport complex. It also includes other major long term car parks and the use is one which is, and was, open for consideration. The site is suitably located as a long term car park for the airport".

23.      The evidence is clear that at no stage did An Bord Pleanála consider that it was granting a permission in material contravention of the development plan. I am of opinion that An Bord Pleanála was correct to so conclude and I am not satisfied that the applicant has made out a case to show that the permission either granted at first instance by the planning authority or on appeal by An Bord Pleanála constituted a material contravention of the development plan adopted by Fingal County Council on the 19th October, 1999.

24.      It does not appear to me that there are any specific factors associated with the development which contravene local objective 131 or indeed, the light rail objective. I therefore turn to consider whether the decision of the respondent can be said to have been arrived at in circumstances where it failed to have regard to the status of the red safety areas or the observations of the applicant and is thereby open to legitimate criticism in these proceedings.

The Applicant's Contention

25.      The applicant contends that an Bord Pleanála failed to have regard to the status of the red safety areas under the development plan. Furthermore, it alleges that the respondent failed to have regard to the requirement to have regard to the observations of the applicant as an airport operator under the plan. It accepts that it is rather artificial to seek to separate these two arguments. To say that An Bord Pleanála failed to have regard to the observations of the applicant as an airport operator is, by implication to say that it failed to have regard to the status of the red safety areas. The applicant contends that the respondent did not acknowledge the specific objective of red safety areas at all and consequently came to the erroneous conclusions which it did.

26.      It is important to bear in mind when considering this aspect of the case that this application is not an appeal on the merits from the decision of An Bord Pleanála but is a judicial review of that decision. Furthermore, the court is not concerned with the reasonableness of the decision since leave was not granted to challenge it on that basis. I am strictly confined to the single ground permitted by Butler J.


 
Safety

27.      Earlier in the judgment I set out in brief form the provisions of the Air Navigation and Transport (Amendment) Act, 1998 insofar as they deal with the statutory position of the applicant pertaining to airport safety.

28.      Prior to the establishment of the applicant under the 1998 Act as a commercial semi-state body there was in existence a body known as Aer Rianta CPT which was itself the successor to Aer Rianta Teoranta which was authorised to manage Dublin airport as agent for the then Minister for Transport. For many years the former Aer Rianta CPT acted with and as the agent for the Minister in relation to matters pertaining to air transport. As air transport grew a decision was made to entrust matters of air navigation and safety to an independent authority namely the Irish Aviation Authority which was established under the Irish Aviation Authority Act, 1993. Aer Rianta CPT was restructured as a new independent commercial semi-state organisation under the 1998 Act. Under article 32(1)(h) of the Local Government (Planning & Development) Regulations, 1994 the Irish Aviation Authority is the statutory consultee in respect of all matters of "the safety of aircraft or the safe and efficient navigation thereof". This authority is the licensor of Aer Rianta in respect of Dublin airport.

29.      Both the applicant and the Irish Aviation Authority made representations to both the planning authority and An Bord Pleanála. On the evidence it seems clear that the views expressed by both were taken into account. In the course of his report the respondent's senior inspector said

"Concerning matters of aeronautical safety I note that the IAA, who are responsible for such matters, do not object to the proposed development - see in particular its clarifying letter of 1/7/99 to the planning authority. The suggested ban on any development within the airport approach areas is contrary to established practise the bulk of the development is a flat (at grade) car park, which obviously will not of itself present an obstacle to aircraft. Car park lighting and bus stops are a potential hazard but these can be kept below the height restrictions necessary.

There are runway approach lights within the site. I can understand the concern that car parking lights might distract from or conflict with these. I can also understand the possible problems that could be created for pilots from the glare of these lights. Again, I rely on the opinion of the IAA who are responsible for such matters and who are satisfied with the proposal subject to certain reasonable conditions concerning the lights which should be attached.

There is no reason why the runway approach lights cannot be accommodated within the development and the associated easement maintained. Conditions to this effect should also be included.

Hazard has also been raised concerning birds arising from the proposed screen planting. The IAA has not raised this and I see no reason therefore to be concerned.

Aer Rianta also raises the distinction between public hazard and aeronautical hazard. Matters of aeronautical hazard are completely addressed by the submission of the IAA but they are not the competent authority on matters of public hazard. There will be a certain hazard to the public being brought into a car park that is located under the flight path of a runway. The hazard would not appear to be significant. Public roads and other developments are commonly located under flight paths and the protected areas of runways; indeed there is a public road between this site and the runway 16/34. It appears prudent that limits be imposed on a development that might attract crowds to such a location but that is not the case with a car park. Numbers on the site will be low. I therefore see no grounds of public safety that would merit a refusal of this proposed development".

30.      I do not find any evidence that the respondent failed to have regard to the observations of the applicant made on this topic of safety and it is in my view perfectly entitled to take into account the views of the Irish Aviation Authority on questions of aeronautical safety. The fact that it came to a conclusion which does not please the applicant is not a basis for judicial intervention particularly in circumstances where due consideration was given to the representations made by both parties who had an entitlement to be heard.

31.      I do not accept that there was any failure on the part of the respondent in considering the Irish Aviation Authority as the primary body with regard to aeronautical safety. It appears to me that the report of the senior inspector of the respondent which was of course taken into account by the respondent in making its decision amply demonstrates that all the submissions were considered and a decision arrived at on foot of them.

32.      I am not therefore convinced that the applicants have made out a case demonstrating that the grant of the permission in suit constituted a material contravention of the development plan or that it erred in law in the way in which it dealt with the representations made by any of the parties. It follows therefore, that this part of the applicant's case fails.

33.      I have not lost sight of the complaints made by the applicant relating to the navigational aids which are the subject of the agreement of the 7th March, 1966 creating an easement in respect of them. It does not appear to me that the applicants have made out a legitimate complaint concerning the way in which that issue was dealt with.


 
Giving of Reasons

34.      As I have come to the conclusion that the applicants have not made out a case demonstrating that there was here any material contravention of the development plan I need not consider the complaint which is made that reasons were not given for such alleged departure from the plan and the granting of permission in material contravention of it. Neither must I concern myself with the alleged obligation to give special or additional reasons for so doing.

35.      Insofar as there is a complaint made concerning the reasons which have been given the following in my view is the position.

36.      In O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 Finlay C.J. dealt with the reasons provided by An Bord Pleanála in that case. He said:

"Firstly, I am satisfied that there is no substance in the contention made on behalf of the plaintiff that the board should be prohibited from relying on a combination of the reason given for the decision and the reasons given for the conditions, together with the terms of the conditions. There is nothing in the statute which would justify such a rigid approach and it would be contrary to common sense and fairness. What must be looked at is what an intelligent person who had taken part in the appeal or had been appraised (sic) of the broad issues which had arisen in it would understand from this document, these conditions and these reasons. Approached in that way, I am satisfied that the entire of this document sufficiently identifies the reasons by which the board reached a decision to grant this particular planning permission subject to these particular conditions. I do not see in it any ambiguity, and whilst it is quite correct to say that the first schedule if taken on its own would be an inadequate reason, at least in a case where the board had rejected the recommendation of its own inspector, I conclude that combined with the conditions and the reasons given for them, the reasons for the entire decision are sufficiently stated. It is of importance, though not necessarily vital, to my decision on this issue that no request was made by or on behalf of the plaintiff in this case for the elaboration of, or explanation of, the reasons as stated in this document".

37.      Since the decision in O'Keeffe the 1995 Local Government (Planning and Development) no. 2 regulations have been made. These amend the 1994 regulations. They provide for the making available for public inspection the documents relating to planning appeals determined by the respondent. From the documents exhibited before me it is clear that the applicant has obtained copies of all relevant documents including the senior inspector's report and the board's direction of the 7th March, 2000.

38.      In my view it is clear from reading these documents that the applicant's submissions were duly considered both by the senior inspector and by the respondent. In Village Residents' Association Limited v An Bord Pleanála (5th May, 2000) Laffoy J. said:

"On the authorities, in determining whether the board properly fulfilled its statutory duty to give reasons for its decision, the court must have regard to the entirety of the documents dated the 30th April, 1999 and it must consider whether an intelligent person with knowledge of the broad issues raised on McDonnell's appeal would understand why the board came to the decision to grant permission subject to conditions".

39.      Applying this test I have come to the conclusion that the reasons as stated by the respondent are adequate and sufficient and that the criticism made thereof by the applicant cannot be sustained.

Conclusion

40.      In my view the sole ground which survived the leave hearing conducted by Butler J. has not been established by the applicant. This is not an appeal on the merits, nor am I concerned with questions of unreasonableness in the Wednesbury or Keegan v Stardust sense. Much of the evidence which was led by the applicant dealt with contentions which were ruled out by Butler J. touching upon questions of reasonableness.

41.      Such evidence and submissions as were focussed upon the single ground that was permitted to be argued at trial do not convince me that the applicant ought to succeed.