Wicklow County Council v Beattie [2019] IEHC 18
JUDGMENT of
Mr. Justice Noonan delivered on the 15th day of January, 2019
1. In this
application, the applicant ("the Council") seeks an order pursuant to
s. 160 of the Planning and Development Act 2000, as amended, compelling the
respondent ("Mr. Beattie") to comply with certain conditions attached
to planning permission 07/1080 which relates to the lands comprised in Folio
5759F County Wicklow.
2. The lands in question are part of the Beattie
farm situated at Tinode, Kilbride, Blessington, County Wicklow. The farm has
been in the possession of the Beattie family since approximately 1912. The farm
in total contains 73.9 hectares of which 20.8 are the subject matter of the
relevant planning application. Access to the farm is gained via an entrance off
the N81 which is the main Tallaght to Blessington Road. This entrance has been
in existence for many decades and certainly prior to 1st October, 1964.
3. In 2006, Mr. Beattie applied to the Council for
planning permission for a new dwelling house on the land. There was then, and
still is, no dwelling house on the land. On 26th April, 2007, planning
permission reference no. 06/5174 was granted to Mr. Beattie for the development
of a two storey house with a new entrance to the site and a new wastewater
treatment plant. A number of the conditions attached to this planning
permission related to the new entrance. Condition 5 required 120 metre sight
lines, condition 6 related to the surface material of the new entrance and
condition 8 provided that surface water runoff from, inter alia , the
entrance, should be collected on site and not permitted to flow onto the public
roadway.
4. Planning permission 06/5174 was subject to the
normal five-year lifespan so that it would, if not implemented, expire on 26th
April, 2012. Although it was Mr. Beattie's intention to construct the house,
events overtook that plan in the shape of the economic collapse and thereafter
he was no longer financially in a position to commence the construction. The
entrance provided for by the 06/5174 permission was onto the R759 rural road
which also bounded the Beattie farm but importantly carries a lower volume of
traffic than the N81. The Council previously refused to grant Mr. Beattie
permission for a development that utilised the existing N81 entrance on traffic
hazard grounds.
5. The architect that represented Mr. Beattie in
his various planning applications was John M. Taylor of Freyer and Taylor
Architects, 39 North Avenue, Mount Merrion, County Dublin. Mr. Taylor made a
further planning application on Mr. Beattie's behalf in 2007 for retention of
certain farm buildings and construction of new ones. This application, bearing
reference 07/1080, was granted by the Council on 28th March, 2008, for
retention of:-
"453 sq.m agricultural embryo storage facility
with associated stores, office and farm workshop 675 sq.m wintering cattle
facility, a new 357 sq.m feed store, new Envirocare wastewater treatment plant
with percolation area, all with access from the R759 road at the Beattie farm,
Tinode, Kilbride."
6. As can be seen from the foregoing, the terms of
the permission appear to provide for retention of two structures being the
embryo storage facility and the wintering cattle facility allied to the
erection of a new feed store and wastewater treatment plant. The granting of
permission was subject to eighteen conditions but it is with conditions 1, 2,
3, 13, 14, 15, 16 and 17 that this application is concerned. In summary, these
conditions provided:-
1. Permission refers to the development as
described in the lodged documents;
2. Mr. Beattie should lodge the sum of €2,500 as
security for compliance;
3. Mr. Beattie should lodge the sum of €2,000 as
security for tree planting;
13. As this is the central issue in the case, I
will quote it in full:- "Before the new entrance is brought into use, the
existing entrance (off the N81) shall be permanently and effectively closed off
by the erection of a boundary matching the existing boundary in height, design,
construction and finish, unless otherwise agreed in writing with the planning authority";
14. 120m sight lines should be provided as per the
layout plan;
15. Proposals for landscaping and tree planting
should be submitted within three months;
16. Tree planting should be carried out during the
first planting season;
17. The wastewater treatment plant should comply
with certain standards and evidence of that should be submitted to the Council
on completion.
7. The planning application was submitted with a
covering letter from Mr. Taylor dated 17th May, 2007. In it, he referred to the
fact that the application related to 20.8 hectares of the total farm area of
73.9 hectares and that the relevant portion contained the embryo unit to be
retained as well as a then proposed winter feeding facility and a new house for
Mr. Beattie. In the first page of the letter, Mr. Taylor referred to the fact
that permission for this house had been granted on foot of 06/5174 but not yet
constructed. On p. 2 of the letter, Mr. Taylor said the following:-
"It is proposed that there will be a shared
entrance/exit for the house and the proposed wintering facility from the R759.
See enclosed plans. It should be noted that permission has already been granted
for an entrance at this location to serve the proposed new house. An
application was previously made for this development but was refused on the
grounds of access. It was proposed at that time to access the facility from the
N81. This new application proposed an alternative means of access to the
proposed facility."
8. Although in the course of the hearing of the
appeal before me, counsel on behalf of the Council indicated that enforcement
of all the above conditions was being sought, it is clear that the primary
concern of the Council is with the existing entrance onto the N81, which has
not been closed, and the corresponding fact that the entrance onto the R759 has
not been constructed.
9. In 2011, with the expiry of the planning
permission 06/5174 for the dwelling house fast approaching, Mr. Beattie applied
for an extension to that permission. This was refused by the Council for one
reason, namely that there was a significant change in the development
objectives in the development plan since the date of the original permission
such that the development would no longer be consistent with the proper
planning and sustainable development of the area. Accordingly, the Council was
precluded from extending the permission by virtue of s. 42(1)(a)(ii)(II) of the
Planning and Development Act 2000, as amended.
10. What this reason in fact refers to is the
intention of the roads authority to construct a new link road over part of the
Beattie farm which would in effect destroy at least part of the development
that would otherwise have been authorised under permission 06/5174.
11. One of the central issues in this case is
whether the entrance onto the R759 was authorised under permission 06/5174 or
alternatively, 07/1080. The Council argues that permission 07/1080 clearly on
its face provides for access for the retained and new developments from the
R759 and the failure to construct the new entrance means that Mr. Beattie is in
breach of condition 13.
12. Mr. Beattie, on the other hand, contends that
the new entrance to the R759 was neither applied for nor granted by permission
07/1080, but was in fact both applied for and granted by permission 06/5174
which has now expired and cannot therefore be implemented, the Council having
refused an extension. Mr. Beattie says that condition 13 could only ever apply
if and when the new entrance was constructed and as that cannot now happen,
condition 13 can never be complied with and is accordingly unenforceable.
13. The Council counter this with the argument that
the plans submitted by Mr. Taylor in respect of application 07/1080 clearly
showed the new entrance and the development must be carried out in accordance
with those plans and particulars. In response, Mr. Beattie says that it was of
course appropriate and necessary to show what had already been granted on foot
of permission 06/5174 when applying for the new permission. He argues that the
plans submitted in support of application 07/1080 not only showed the new
entrance but also the new house but it could not seriously be suggested that
permission for the house was re-granted by 07/1080.
14. The touchstone in interpreting grants of
planning permission is to be found in the unanimous judgment of the Supreme
Court delivered by McCarthy J. in X.J.S. Investments Limited [1986]
I.R.750 where he said (at 756):-
"Certain principles may be stated in respect
of the true construction of planning documents:—
(a) To state the obvious, they are not Acts of the
Oireachtas or subordinate legislation emanating from skilled draftsmen and
inviting the accepted canons of construction applicable to such material.
(b) They are to be construed in their ordinary
meaning as it would be understood by members of the public, without legal
training as well as by developers and their agents, unless such documents, read
as a whole, necessarily indicate some other meaning…"
15. What the court therefore is concerned with in
determining the true meaning of planning documents is what an ordinary member
of the public would understand them to mean. Such meaning cannot be derived by
reference to facts known only to the parties to the application but to such
facts as are readily discernible from all of the planning documents that are
available to the public when read as a whole. Those documents include of course
not only the design drawings and plans but any correspondence on the planning
file that is available for the public to peruse.
16. In the present case, such correspondence
clearly includes Mr. Taylor's letter of 17th May, 2007. That letter includes a
reference to the previous permission 06/5174 in respect of the dwelling house.
Such a reference is also to be found in the terms of the pro forma planning
application itself. Importantly however, it would be clear to any member of the
public reading the passage in Mr. Taylor's letter which I have quoted above
that permission had already been granted under the earlier permission for the
new entrance and there was thus no requirement for a new application to be made
for this entrance.
17. What was applied for under 07/1080 was
"access" off the R759 and that is what was granted - not a new
entrance onto the R759 because there was no requirement for such permission,
same having already been granted a year earlier. I am fortified further in that
view by the fact that permission 06/5174 contained explicit conditions, to which
I have referred above, referable to the construction of the entrance whereas
such or similar conditions are entirely absent from 07/1080. Further support
for this conclusion is to be found in the contents of the respective public
site notices posted by Mr. Beattie on the lands. The 2006 notice refers to a
"new entrance to site" whereas the 2007 notice refers to "all
with access from the R759 road".
18. The mere fact that the plans accompanying
application 07/1080 showed the new entrance on the R759 cannot without more be
taken as indicating that such permission was being applied for because as noted
above, the plans also showed the dwelling house for which permission had
similarly been granted on foot of 06/5174.
19. Even if it were not clearly the case that
06/5174 grants permission for the new entrance, the best that can be said from
the Council's point of view is that there may be an element of ambiguity as
between the meaning and intent of 06/5174 and 07/1080 vis-a-vis the new
entrance. In an application for a s. 160 injunction, as in any other injunction
application, the onus rests upon the moving party to establish, on the balance
of probabilities, that unauthorised development has taken, or is taking, place.
As that proposition, in the context of condition 13 at any rate, hangs on
establishing that the new entrance is permitted under 07/1080 and not 06/5174,
the Council must, in my opinion, be viewed as having failed to discharge that
onus.
20. It must equally follow that the Council have
failed to establish that there has been a breach of condition 13 because there
is no requirement to comply with it unless and until the entrance onto the N81
is closed and the new entrance is brought into use, an event which cannot occur
by virtue of permission 06/5174 being now spent. I think the Council's argument
that the 07/1080 permission granted permission for the new entrance must also
be viewed in the light of the fact that if it did, it was not applied for and
this would prima facie render it ultra vires the Council. Since
the permission must be assumed to have been granted intra vires , this
is a further reason for concluding that the later permission did not grant the
new entrance.
21. I turn now to the remaining conditions, apart
from condition 13, of which complaint is made by the Council. Determining to
what, if any, extent these should now be given effect , I must have regard to
the well settled principles to be applied in s. 160 proceedings, usefully
summarised by Barrett J. in St. Margaret's Concerned Residents Group &
ors v. Dublin Airport Authority PLC [2017] IEHC 694
(at para. 86):-
"It is a well-established principle of Irish
planning law that the courts will disregard immaterial deviations from a
planning permission, or trivial or technical breaches of same. ( Sweetman,
(SC) ) [ Sweetman v. Shell E & P Ireland Limited [2016] IESC 2]).
The question of the nature of any breach of planning permission is relevant on
two levels. First, from a general perspective a breach may be sufficiently
immaterial or trivial as not to amount to unauthorised development. Second, in
the specific context of the discretionary nature of s.160 proceedings, even if
there has been unauthorised development, the trivial or immaterial nature of
any breach may be such that it is not appropriate to grant relief. In the
court's view, the facts at issue in the within proceedings come into this
second category."
22. As already discussed, although the Council did
not abandon alleged breaches of conditions other than condition 13, the latter
was very much the focus of this case. There was no realistic suggestion of a failure
to otherwise carry out the development in accordance with the permission and in
particular, in the context of the tree planting requirements, it appears to be
conceded by the Council that Mr. Beattie has planted trees very extensively and
far in excess of what was required of him under the terms of the permission. To
that extent, insofar as conditions 2 and 3 are concerned, which require
security deposits, I am satisfied no ongoing necessity for the lodging of such
deposits has been established by the Council and any failure in that regard has
now to be viewed as trivial or merely technical. The same considerations apply
to conditions 15, 16 and 17. Condition 14 relates to sight lines for the new
entrance but in view of the conclusions I have arrived at, this is no longer
material.
23. For these reasons therefore, I propose to allow
Mr. Beattie's appeal herein and dismiss the Council's application.
Permanent public link to the judgement available here.
