Monday, 5 May 2008

Reasons must be given for planning conditions

HIGH COURT Title: Weston -v- An Bord Pleanála Judgment was given by Mr Justice MacMenamin on March 14th, 2008

JUDGMENT
There was an obligation to state reasons for a condition attached to permission to retain a development, 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.

BACKGROUND
This was a judicial review of the imposition by An Bord Pleanála of a condition attached to a decision to grant planning permission. Weston Aerodrome, the applicant, alleged the condition was unlawful and sought orders removing it.

In May 2005, Weston made a planning application to South Dublin County Council seeking retention permission for a development that included revision and alteration, and retention, to approved office/clubhouse, hangar and car park at Weston Aerodrome.

The purpose of the development was to allow air traffic controllers, in a tower on top of the club-house, to have a full view of the runway and taxiways

The county council granted permission and retention, subject to a number of conditions. One of those was that a specified development could not be carried out on the aerodrome without a prior grant of planning permission from the planning authority or from An Bord Pleanála on appeal. The reason give for this condition was "in the interest of orderly development".

A third party, Combined Action on Weston Aerodrome, appealed the county council decision to An Bord Pleanála, where it was upheld, with a similar condition.

Weston stated that the effect of this condition would be to make further development at the aerodrome susceptible to ordinary planning processes, thus stifling its development. It said that this condition negated an exemption, as set out in the Planning and Development Regulations 2001, for the development of "aerodromes".

The first question raised in the judicial review was whether the condition and the regulations under which it was made were ultra vires.

Weston argued that An Bord Pleanála was impermissibly seeking to reinterpret primary legislation (the Planning and Development Act 2000) in the light of a provision contained in secondary legislation (the regulations).

Weston also challenged the condition imposed on the permission on the basis that it failed to provide a reason, other than "in the interest of orderly development".

It also claimed that the condition was not proportionate in the context of the European Convention on Human Rights.

DECISIONS

After extensively considering the case-law and the statute, Mr Justice MacMenamin concluded that An Bord Pleanála did have statutory authority to impose a condition on such a development.

"The statutory intent stated in the preamble of the Act is to provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing; it is profoundly informed by the idea and concept of sustainable development which is central to its objectives," he said.

While exceptions are permitted, "this is restricted to authorised developments."

"The Act provides for a heightened level of scrutiny by the planning authority in the case of an unauthorised development which (as here) is the subject matter of a retention application. The rationale is obvious. It is to ensure that unauthorised development cannot be achieved by the back door.""The intent of the Oireachtas is clear," he said. "In the case of a retention permission, conditions may be imposed even in the circumstances of an exempted development."

Turning to the question of reasons for the condition, he pointed out that a "record of executive business and manager's order" in South Dublin County Council included a statement that there should be a condition "preventing any further development and extinguishing the applicant's exemption rights on the land holding . . . due to past failure to comply.

"I am far from concluding that the imposition of the conditions in question were in any way actuated by an improper motive," Mr Justice MacMenamin said. "I emphasise I make no such finding. However . . . in the circumstance where the condition is not one of those generally envisaged in S. 34, there is an enhanced obligation to provide reasons which come within the requirements outlined in the judgments in O'Donoghue and Mulholland. In this case, with this background, there has been an obligation to state reasons for the condition clearly, cogently and 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.

"In the factual context of this case, and having regard to the unusual and evidential features identified, I do not consider the reason given for the condition was sufficient to comply with the statutory duty of the Board." On this basis he granted the judicial review sought.

Referring to the applicant's rights under the European Convention on Human Rights, he said that the finding made in the course of the judgment meant these rights were not engaged.

The court was therefore confining itself to granting an order of judicial review on the second ground, and remitted the matter to An Bord Pleanála.

The full text of this judgment is available on www.courts.ie

Garrett Simons SC and Fintan Valentine BL, instructed by Noel Smyth and Partners, Fitzwilliam Square, Dublin, for the applicant; Niamh Hyland BL, instructed by Barry Doyle and Co, Merchant's Quay, Dublin, for the respondent.

Irish Times

www.buckplanning.ie

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