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O'Connell v. Dungarven Energy Ltd [2000] IEHC 101 (27th February, 2000)
THE
HIGH COURT
No.
2001 / MCA5
IN
THE MATTER OF AN APPLICATION PURSUANT TO THE LOCAL GOVERNMENT (PLANNING AND
DEVELOPMENT) ACTS 1963 TO 1999
AND
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 27 OF THE LOCAL GOVERNMENT
(PLANNING AND DEVELOPMENT) ACT 1976 AS SUBSTITUTED BY SECTION 19 (4) (g) OF THE
LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1992
AND
IN THE MATTER OF AN APPLICATION
BETWEEN
COLLETTE
O’CONNELL
APPLICANT
AND
DUNGARVAN
ENERGY LIMITED
RESPONDENT
JUDGMENT
of the Honourable Mr. Justice Finnegan delivered on the 27th day of February
2000.
Section
27 (1) (a) provides as follows:-
“
Section 27 (1) Where:-
- Development
of land, being development for which permission is required under Part IV of
the Principal Act has been carried out, or is being carried out, without such
permission, or
- An
unauthorised use is being made of land
the
High Court or the Circuit Court may, on the application of a Planning
Authority
or any other person, whether or not the person has an interest in the
land,
by order require any person to do or not to do, or to cease to do, as
the
case may be, anything that the Court considers necessary and specifies in
the
order to ensure as appropriate:-
- That
the development or unauthorised use is not continued,
- Insofar
as practicable that the land is restored to its condition prior to commencement
of the development or unauthorised use,
(2) Where
any development authorised by permission granted under Part (IV) of
the
Principal Act has been commenced but has not been, or is not being,
carried
out in conformity with the permission because of non compliance with
the
requirements of a condition attached to the permission or for any other
reason,
the High Court or the Circuit Court may on the application of a
Planning
Authority or any other person, whether or not that person has an
interest
in the land, by order require any person to do or not to do, or cease to
do,
as the case may be anything that the Court considers necessary and
specifies
in the order to ensure that the development is carried out in
conformity
with the permission”.
1. By
decision dated the 1st September, 2000 An Bord Pléanala granted to the
Respondent permission for a development therein described as a gas fired
combined cycle gas turbine power plant at Dungarvan County Waterford. The
planning permission imposed thirteen conditions in all the following of which
are relied upon by the Applicant and are relevant to this application:-
- The
development shall be carried out in accordance with the plans and particulars
submitted with the application except as may otherwise be required in order to
comply with the following conditions.
(3) Prior
to commencement of development, the developers shall
submit
to and agree with the Planning Authority the colour and finishes of all
major
surfaces stacks and louvres. Sample panel shall be erected on site for
agreement
with the Planning Authority. All other external finishes to
buildings
shall be of a colour to be agreed with the Planning Authority.
(4) The
construction shall be in accordance with the plans, sections and
elevations
submitted to Planning Authority. No additional plant flues,
, openings,
louvres, pipes or plant machinery shall be installed without a prior
grant
of planning permission. Any development which may alter the external
appearance
of the development shall not be exempt under Class 19 of Part I of
the
Second Schedule to the Local Government (Planning and Development)
Regulations
1994.
(6) The
site boundary shall consist of a dwarf wall 600 mm high and palasade
type
fencing 2.4 metres in height above dwarf wall height. Details of
boundary
fencing shall be submitted to the Planning Authority for agreement
prior
to commencement of development.
(9) The
buildings known as Niro III and Niro IV shall be demolished prior to the
commencement
of development. The waste material generated by the
demolition
shall be disposed of to the satisfaction of the Planning Authority.
(10) The
cooling towers shall be relocated to the western part of the site in
accordance
with details agreed with the Planning Authority prior to
commencement
of development
(11) The
developer shall facilitate the Planning Authority in the archaeological
appraisal
of the site and in preserving and recording or otherwise protecting
archaeological
materials or features which may exist within the site. In this
regard
the developer shall:-
- Notify
the Planning Authority in writing at least four weeks prior to commencement of
any site operation (including hydrological and geotechnical investigations)
relating to the proposed development, and
- employ
a suitably qualified Archaeologist prior to commencement of development. The
Archaeologist shall assess the site and monitor all site development works.
2. The
assessment shall address the following issues:-
- The
nature and location of archaeological material on the site, and
- The
impact of the proposed development on such archaeological material.
3. Prior
to commencement of development a report containing the results of the
assessment shall be submitted to the Planning Authority. Arising from this
assessment, the developer shall agree with the Planning authority details
regarding any further archaeological requirements (including if necessary
archaeological excavation) prior to commencement of construction works. In
default of agreement on any of these requirements the matter shall be
determined by An Bord Pléanala.
(12) The
developer should pay a sum of money to the Planning Authority as a
contribution
towards expenditure that was and/or that is proposed to be
incurred
by the Planning Authority in respect of road works facilitating the
proposed
development. The amount of the contribution and the arrangements
for
payment shall be agreed between the developer and the Planning Authority
or
in default of agreement shall be determined by An Bord Pléanala.
4. In
the case of expenditure that it is proposed to be incurred, the requirement to
pay the contribution is subject to the provisions of Section 26 (2) (h) of the
Local Government (Planning and Development) Act 1963 generally, and in
particular, the specified period for the purposes of paragraph (h) shall be the
period of seven years from the date of this order.
(13)
The
developer shall pay a sum of money to the Planning Authority as a
contribution
towards expenditure that was and/or that is proposed to be
incurred
by the Planning Authority in respect of the provision of a public
water
supply and sewerage facilities facilitating the proposed development.
The
amount of the contribution and the arrangement for payment shall be
agreed
between the developer and the Planning Authority or in default of
agreement
shall be determined by An Bord Pléanala.
5. In
the case of expenditure that is proposed to be incurred, the requirement to pay
the contribution is subject to the provisions of Section 26 (2) (h) of the
Local Government (Planning and Development) Act 1963 generally, and in
particular the specified period for the purposes of paragraph (h) shall be the
period of seven years from the date of this order.
6. Conditions
3, 6, 9, 10, 11, 12 involve what may be described as pre- development
conditions. Conditions 1 and 4 require adherence to plans and particulars
lodged with the Planning Authority.
7. On
the evidence before me including photographic and video evidence I am not
satisfied that development has commenced other than exempted development.
Development is defined in the Local Government (Planning and Development) Act
1963 Section 3 as meaning the carrying out of any works on, in, or under land.
However the Local Government (Planning and Development) Regulations 1994 Second
Schedule Class 45 exempts demolition and I am satisfied that the works carried
out to date are works of demolition and in these circumstances what I am being
asked to do is to grant what is in effect aquia timet injunction and in this I
have no power to do:
Mahon
and Others v the Irish Rugby Football Union
[1997] 3 I.R 369
.
8. There
has however been non compliance with condition 11 which requires certain
matters to be attended to prior to the commencement of any site operation
relating to the proposed development rather than the commencement of
development as in the other conditions. The Respondent is in breach of the
requirement to give notice pursuant to condition 11 (a) of the works of
demolition carried out to date. Notwithstanding that they are exempted
development the works of demolitiion are nonetheless a site operation relating
to the proposed development. I propose granting an injunction restraining the
Respondent from continuing with works which constitute site operations relating
to the proposed development save and except in compliance with the terms of
condition 11 insofar as that is now possible that is:-
(i) Until
after four weeks notice of the intention to resume such works is given to
the
Planning Authority,
(ii) Until
after an Archaeologist has carried out an assessment of the site and a
report
thereof submitted to the planning authority.
9. However
the Respondent shall be entitled to demolish to ground level the buildings know
as Niro III, Niro IV and CHP building.
10. As
to the application under Section 27 (1) and the Respondent’s obligations
under conditions 1 and 4 of the planning permission in effect to comply with
the plans and particulars submitted on the application, as the development has
not commenced I have no power to grant an injunction. However as the effect of
conditions 1 and 4 on the proposed development was fully argued I propose
dealing briefly with the arguments.
The
facts in
Lever
(Finance) Limited v Westminster Corporation
[1973] All E.R. 496
bear some similarity to those in this case. They appear from the head note as
follows:-
“Developers
who proposed developing a piece of land by building fourteen houses on it
applied for planning permission to the local planning authority attaching to
the application a detailed plan of the development showing one of the houses,
house G as sited 40 feet away from existing houses. Permission for development
in accordance with the detailed plan was given by the planning authority on
24th March, 1969. A month later the developer’s architect made some
variations to the detailed plan submitted to the authority. The variations
included altering the site of house G so that it was sited only 23 feet away
from the existing houses; and a further site plan showing this variation was
sent to the planning authority. The authority’s planning officer who was
dealing with the development had lost the file containing the original plan
approved by the planning authority and because of this made a mistake and told
the architect, in a conversation over the telephone, that the variation was not
material and that no further planning consent was required....The developers
acted on this representation and went ahead with the development in particular
with the erection of house G”.
11. While
in that case the Court held that the Planning Authority was a estopped by the
representation of its planning officer the importance of the decision for
present purposes is that it is of assistance in the approach which was taken in
determining the works which are covered by a planning permission. At page 500
Lord Denning with whom Lord Justices Sachs and Megaw concurred said :-
“In
my opinion a planning permission covers work which is specified in the detailed
plans and any immaterial variation therein. I do not use the words “de
minimis” because that would be misleading. It is obvious that, as the
developer proceeds with the work there will necessarily be variations from time
to time. Things may arise which were not foreseen. It should not be necessary
for the developers to go back to the planning authority for every immaterial
variation. The permission covers any variation which is not material”.
12. The
plans lodged by the Respondent with the planning authority envisaged the
retention of the CHP building and its incorporation into the development. The
Integrated Pollution Control Licence obtained by the Respondent in condition 8
thereof imposed certain noise restrictions in relation to the development. I
have on Affidavit and uncontroverted that the steel structure of the CHP
building is of insufficient structural strength to support cladding which would
enable the said condition 8 to be complied with. It was therefore necessary,
if the development should proceed, that a stronger steel structure capable of
supporting the cladding be provided. This replacement steel structure as to
its external dimensions will correspond both as to height and floor area with
that which is being demolished. The external appearance of the building will
be in accordance with the planning permission condition 3 thereof. In these
circumstances the course of conduct which the Respondent has undertaken is in
direct consequence of the imposition of the said condition 8 in the Integrated
Pollution Control Licence. It is therefore within the category of unforeseen
variations mentioned by Denning M R and as such authorised by the planning
permission. It is also immaterial having regard to what I have said as to its
floor area, height and the fact that its external appearance will be determined
in accordance with condition 3 of the planning permission and so unaffected by
the variation. In short the variation in the development is within the terms
of the planning permission. It is also exempted development pursuant to the
Local Government (Planning and Development) Regulations 1995 Article 9 A as
inserted by the Local Government (Planning and Development) Regulations 1995.
13. Further
the granting of withholding of injunctive relief is a matter of discretion to
be exercised in accordance with established legal principles. Even if
satisfied that there had been a non compliance with the planning permission on
the basis of the demolition and replacement of the steel structure I would not
be disposed to grant an injunction in the circumstances of this case. The
circumstances relevant to such refusal are the following:-
- The
variation in the context of the completed development is of trifling materiality,
- The
variation is necessary to satisfy the concerns of the Environmental Protection
Agency reflected in condition 8 of the Integrated Pollution Control Licence,
- The
Respondent acted in good faith and consulted with the Planning Authority in
relation to the proposed variation,
- The
attitude of the Planning Authority to the variation as appears from their
letter exhibit AJ 8 to the Affidavit of Alistair Jessop sworn on the 21st
January, 2001,
- The
variation will have no effect upon the Applicant and other residents of the area,
- The
serious consequences of delay for the Respondent .
14. Also
before me is a Notice of Motion by the Applicant to join certain directors of
the Respondent as parties and also a Motion seeking to sequestrate the
Respondent’s assets. There is also a Motion by the Respondent to vary
the interim Order made herein. I do not propose joining the directors of the
Respondent as parties as any Order which I make against the Respondent can
readily be enforced and if necessary by the attachment of the directors of the
Respondent. The other two Motions are not now relevant. Accordingly all three
Motions should be struck out with no Order as to costs.
DDMCA5(FINNEGAN)
© 2000 Irish High Court
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