High Court allows appeal dismissing Council's s.160 order for trivial planning condition breaches on expired permission.

[2019] IEHC 18

THE HIGH COURT

CIRCUIT APPEAL

[2017/233 C.A.]

BETWEEN

WICKLOW COUNTY COUNCIL

APPLICANT

AND

ROY BEATTIE

RESPONDENT

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.