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High Court: Dublin Airport Authority’s failure to comply with planning condition was genuine mistake

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A group of residents, who sought declarations that work carried out by Dublin Airport Authority in preparation for a new runway was unauthorised development, have lost their application in the High Court.

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About this case:

Sympathising with the applicants’ concerns, Mr Justice Max Barrett accepted that removal of asbestos from the site was carried out a number of weeks before a Waste Management Plan was submitted to the Council; but stated that the breach was a genuine oversight.

St. Margaret’s Concerned Residents Group and 22 individuals applied to the High Court for declaratory reliefs under s.160 of the Planning and Development Act 2000 (PADA).

Two principal reliefs were sought:

  1. A declaration that the works carried out by DAA from December 2016 until February 2017 constituted unauthorised development comprising unauthorised works carried out without planning permission and/or in non-compliance with the Planning Permission granted by An Bord Pleanála in August 2007 (particularly Condition No 12);

  2. An order directing that any development carried out pursuant to Planning Permission by DAA is to be carried out in conformity with said planning permission and every condition to which it is subject.

    3. Background

    In August 2007, An Bord Pleanála granted planning permission for the development of a new runway at Dublin Airport. Due in part to the recession, DAA did nothing to proceed with the development until 2016. The court heard that the applicants objected to the development from the outset.

    Described as a substantial infrastructural development involving a 3.1km long and 75m wide runway; the build required the demolition of various structures, the closing of portions of roads, and realignment of roads.

    Granting permission, An Bord Pleanála attached various conditions to the permission, particularly Condition 12 that was the focus of the applicants’ case.

    Condition 12 of the runway planning permission stated: “Prior to commencement of development, the developer shall submit to the planning authority for written agreement a comprehensive environmental protection plan to minimise the impacts of the construction processes…”

    Justice Barrett explained that Condition 12 shows that, from the outset, it was clear that An Bord Pleanála was prescribing the need for DAA, to provide for environmental impact mitigation by way of a comprehensive environmental protection plan.

    Oversight

    The Waste Management Plan which provided for the disposal of hazardous waste, including asbestos, was lodged with Fingal County Council on 10th February 2017.

    Among the documents exhibited by Mr Dee, a town planner with Dublin Airport Authority, was a Waste Disposal/Recovery Certificate. It was stated on this certificate that on 2nd December 2016, Rilta collected 327kg of asbestos that required disposal as a result of “Runway Enabling Works”.

    In his affidavit, Mr Dee averred that: “The WMP was not submitted to the planning authority for its approval after the plan had been agreed … on 12 December 2016. This was entirely due to an oversight on my part, which occurred in the context of the overall complexity of this project and the fourteen other conditions requiring matters to be attended to prior to the commencement of development, including the eight other aspects of Condition no. 12.”

    The court accepted that the error was entirely innocent “and neither contrived nor malign”, as was the related error that arose due to the “genuine belief that the daa had fully complied with all ‘prior to commencement of development’ conditions.”

    Decision

    Justice Barret explained that the dispute centred on the commencement of development without the required previous satisfaction of a planning condition that was intended to protect the community and the environment from the effects of that development; and set out the factual and legal considerations he was particularly influenced by:

    • The breach presenting was remedied to the extent that it could be remedied before the commencement of the within proceedings;

    • The applicants were incorrect to argue that the “temporal impossibility” of reversing time meant that breach of a pre-commencement decision resulted in an affected development being treated as unauthorised development for all time. (Sweetman v. Shell E&P Ireland Ltd IESC 2 considered);

    • There was no ‘necessary consequence’ to a s.160 application;

    • 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 (Sweetman v. Shell E&P Ireland Ltd IESC 2 considered);

    • The breach of condition presenting in the case at hand was temporary and the substance of what was required was remedied so that the essential substance of what was required has been achieved;

    • The breach was not great in circumstances where, inter alia, the parameters of the waste management plan had been laid down in the environmental protection plan agreed with Fingal County Council in October 2016;

    • Despite the fact that it was not agreed to until February 2017, the waste management plan was in operation from 16th December 2016 and any works from that date were covered;

    • On the facts presented, the Court accepted that the works commenced on 16th December 2016, not at the start of December;

    • There was no evidence of bad faith on the part of DAA;

    • DAA’s failing was one of innocent oversight, or a “genuine mistake” (Morris v. Garvey ILRM 177 considered);

    • The County Council was benevolently disposed towards DAA (Dandean Ltd v. Talebury Properties Ltd IEHC 422 considered);

    • There was no concern regarding the integrity of the planning system; DAA appeared to be a responsible developer with respect for the planning system;

    • The project was fundamental to the economic development of the State, and the public interest had to be considered. That said, Justice Barrett emphasised that the “court is a court of law tasked with ensuring the rule of law”; as such, “ere it the case… that DAA had acted with heedless disregard of the law (and it did not), the national strategic importance of the runway would quickly flounder in the face of the undeniable public interest that the law should reign supreme and the rule of law prevail”.

      • Exercising the discretion under s.160 and declining to grant any of the reliefs sought, Justice Barret sympathised with the applicants but said “aws matter; rules matter; but mistakes happen”.

      • by Seosamh Gráinséir for Irish Legal News

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