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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ryanair Ltd. v. An Bord Pleanala [2004] IEHC 52 (27 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/52.html Cite as: [2004] 2 IR 344, [2004] 2 IR 334, [2004] IEHC 52 |
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[2003 No. 362 JR]
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTIES
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 27th February , 2004.
This is an application brought for leave to institute proceedings by way of an application for Judicial Review of a decision of the respondent (hereinafter referred to as 'the Board') made on 31st March, 2003, whereby it decided to grant permission to the first named notice party (hereinafter referred to as 'Aer Rianta'), for a development comprising a passenger aircraft pier to be known as "Pier D" with optional fixed bridges and an elevated access corridor from the existing terminal to the new pier at Dublin Airport which decision was subject to seven conditions.
Initially a decision to grant planning permission was made by the second named notice party (hereinafter referred to as the 'County Council') on 7th October, 2002. An appeal was taken by the applicant from that decision. The proposed development includes a link to the main terminal building from Pier D which is in the form of an elevated walkway which it is complained frames or obscures the public or landside view of the old terminal building at Dublin Airport which is stated to be a class one listed building under the County Development Plan. It is submitted that this unnecessarily obstructs or precludes the view of the terminal building.
The relief sought by the applicant is, in the first instance, an order of certiorari quashing the decision of the respondent stated to have been made on 28th March, 2000, and ancillary declarations to the effect that in making its decision the respondent acted ultra vires and/or without or in excess of jurisdiction, that the decision is null and void and of no legal effect, that the decision is invalid in circumstances where the respondent failed to furnish the reasons and considerations upon which its decision is based contrary to the provisions of s. 34 (10) of the Planning and Development Act, 2000 and that the decision is invalid in that the respondent acted in excess of or without jurisdiction by granting the permission with conditions requiring matters in relation to the size, design and appearance of the development to be agreed between the first named notice party and the second named notice party. In addition a declaration is sought to the effect that the decision of the respondent is invalid in circumstances where it failed to afford to the applicant the minimum statutory period for making a submission prescribed by section 131 of the Planning and Development Act, 2000. The grounds advanced by the applicant are as follows:
1. On 7th October, 2002, the second named Notice Party decided to grant permission to the first named Notice Party, subject to 20 conditions, under register reference F02A/1046 for development comprising a passenger aircraft pier, to be known as "Pier D" with optional fixed bridges and an elevated access corridor from the existing terminal to the new pier at Dublin Airport.
2. The decision of the second named Notice Party was appealed to the Respondent by the Applicant and third named Notice Party. The submissions made by the parties to the appeal were considered by the Inspector appointed by the Board, Mr. Philip Jones, in his report dated 11th March 2003. He recommended that permission should be granted for the pier building and associated site development and utility works but should be refused for the proposed elevated access corridor.
3. On 28th March 2003, the Respondent decided to grant permission for the proposed development, subject to 7 conditions.
4. There is an error of law on the face of the record that renders the decision of the Respondent invalid and the Respondent has erred in law and acted in excess of or without jurisdiction in that the decision of the Respondent fails to state the main reasons and considerations on which the decision is based contrary to section 34 (10) of the Planning and Development Act, 2000.
5. There is an error of law on the face of the record that renders the decision of the Respondent invalid and the Respondent has erred in law and acted in excess of or without jurisdiction in that the decision of the Respondent fails to state the main reasons for not accepting the recommendation of its Inspector in relation to the grant and refusal of permission contrary to section 34 (10) of the Planning and Development Act, 2000.
6. There is an error of law on the face of the record that renders the decision of the Respondent invalid in that the decision of the Respondent does not make any reference in its decision or the reasons and considerations upon which its decision is based to the relevant development plan, the Fingal County Development Plan 1999, to which the Respondent is required to have regard pursuant to section 34(2) of the Planning and Development Act, 2000.
7. The Respondent erred in law and acted in excess of or without jurisdiction in imposing conditions requiring matters to be agreed between the first named Notice Party and the second named Notice Party. The Respondent is not entitled to grant permission subject to conditions that require matters to be agreed with the planning authority because the statutory power to impose such conditions which is conferred on the planning authority by section 34 (5) of the Planning and Development Act, 2000 is not extended to the Board pursuant to the provisions of section 37 (1) of that Act. The imposition of such conditions on the permission was therefore ultra vires the Respondent.
8. The Respondent failed to properly determine the application having regard to the extent of the matters which were remitted for agreement between the first named Notice Party and the second named Notice Party. The Respondent, as the person designated to determine appeals from the decision of planning authorities to grant or refuse permission under the provisions of the Planning and Development Act, 2000, cannot delegate its decision-making power to the second named Notice Party from whose decision the appeal has been brought. Having regard to the extent of the matters which were left to be determined between the second named Notice Party and the first named Notice Party, the Respondent could not be said to have determined the appeal and acted ultra vires in delegating its decision making power to the second named Notice Party.
9. The Respondent erred in law in issuing a notice to the Applicant pursuant to section 131 of the Planning and Development Act, 2000 requesting it to make a submissions within two weeks within the date thereof which notice, on its face, failed to comply with the minimum statutory period laid down in section 131 of the Planning and Development Act, 2000. In those circumstances the decision of the Respondent was made without or in excess of jurisdiction as is invalid.
An affidavit has been sworn by Mr. Tom Phillips a planning consultant on behalf of the applicant in which he refers to the history of the planning application. He points out that on 29th June, 1998, the planning authority decided to grant permission for another terminal building pursuant to an application made by Aer Rianta at the time. This application was successful and while it was appealed to the Board, the Board decided to grant permission subject to two conditions.
The proposed development, the subject matter of these proceedings, was described in the application for planning permission as "Passenger aircraft pier with optional fixed bridges and elevated corridor from existing terminal to new pier". The two main elements of this development are, first of all, a Pier Building which contains departure and arrival facilities on two levels with ancillary support accommodation, including immigration, catering, some retail facilities and plant utilities and secondly, the access corridor. This access corridor would be approximately 370 metres in length and 12 metres in width and would be composed of a straight and curved sections.
Mr Philips lodged objections on behalf of the applicant on 17th September, 2002 and on 7th October, 2002, the County Council decided to grant permission for the developments subject to 20 conditions. Ryanair appealed this decision to the Board and submissions were filed on behalf of Aer Rianta in response to the appeals made at the time. Thereafter Ryanair was invited to make submissions or observations by notice from the Board dated 6th December, 2002. Submissions in this regard dated the 18th December, 2002, were filed by Ryanair. The various submissions made in respect of the appeals were considered by an inspector appointed by the Board, Mr. Philip Jones, who recommended that permission should be granted for the proposed pier building and associated works but that permission should be refused for the proposed access corridor. It was pointed out that on 28th March, 2003, the Board decided, notwithstanding the recommendation of the inspector, to grant permission for the entire development subject to seven conditions.
The reasons and considerations upon which the recommendation was made by the inspector were stated to be as follows:
"Having regarded particularly to:
(a) the established use of Dublin airport;
(b) the recent and projected growth in air traffic at the airport;
(c) the need to provide adequate facilities to meet this growth;
(d) the content of national policy, as set out in the national spatial strategy, which supports the continued development of the airport.
It is considered that, subject to compliance with the conditions set out below, the proposed pier would integrate functionally with existing development at the airport, would not seriously injure the visual integrity of the air style of the Old Central Terminal Building, and would not be contrary to the proper planning and sustainable development of the area."
In his recommendation with regard to the proposed elevated access corridor the inspector stated:
"It is my professional judgment that the proposed link corridor, because of its height and bulk, will effectively cut off [the old central terminal building] from its curtilage and intending grounds, and most significantly will obscure the views of one of the principal elevations of the building, except for a very limited central view point between the two masts, and then only at ground level. Currently, there are views of the building from the roadway coming from the main terminal, from the main airport circulatory road, from the grassed area to the front of the north terminal and hangar frontages, and from the public car park."
The inspector then added as follows:
"Many of these views will be obscured by the bulk of the new building. Indeed the number of people that will now lose the view of the building will be likely to far exceed the number of passengers that will be given a view of the building from within the link corridor.
In addition to the detrimental impact which the link corridor itself will have on the protected terminal building and its setting, I consider that the introduction of the high supporting masts for the central part of the link, which will project as very dramatic features well above the line of the roof of the link corridor, will serve to create a new and dominant feature in the landscape/streetscape that will focus attention away from the protected building, towards the masts, and create a discordant situation between the two structures. In my judgment, this attempt to marry a most significant protected structure with modern engineering design will be a failure in design and visual terms…"
He then went on to state:
"I am convinced that the proposed link corridor should be refused on the basis of its seriously detrimental impact on the setting and curtilage of the Old Central Terminal Building."
In its decision, the Board departed from the recommendation of the inspector in deciding to grant permission for both the pier building and the link corridor. The reasons and considerations given by the Board for its decision were as follows:
"Having regard particularly to
(a) the established use of Dublin Airport,
(b) the recent and projected growth in air traffic at the airport,
(c) the need to provide adequate facilitates to meet this growth, and
(d) national policy as set out in the national spatial strategy, which supports the continual development of Dublin Airport.
It is considered that, subject to compliance with the conditions set out below, the proposed development would not seriously injure the amenities of the area, would not seriously injure the visual integrity of the old central terminal building and would be in accordance with the proper planning and sustainable development of the area.
In deciding not to accept the inspector's recommendation to refuse permission for the elevated access corridor, the Board concurred with the decision of the planning authority and considered that the proposed access corridor by reason of its location and design would define the formal open space in front of the old central terminal building and, subject to appropriate conditions, provide an opportunity to upgrade this area and reinstate its design as originally intended."
It is submitted in the first instance that the decision of the Board is invalid insofar as it fails to state the main reasons and considerations on which the decision is based and/or fails to state the main reasons for not accepting the recommendation of its inspector in relation to the grant and refusal of permission contrary to s. 34 (10) of the Planning and Development Act, 2000 (hereinafter referred to as the Act of 2000). Section 34 (10) of the Act of 2000 provides as follows:
"(10) (a) A decision given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection.
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in—
(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the case of a planning authority, or
(ii) a report of a person assigned to report on an appeal on behalf of the Board,
a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission."
It is submitted that the requirement to state the reasons and considerations on which the decision is based can be contrasted with the more limited requirement to give reasons only which was imposed by s. 26 (8) of the Local Government Planning and Development Act, 1963 (hereinafter referred to as "the Act of 1963") (as substituted by section 39 (g) of the Local Government (Planning and Development) Act, 1976 ("the Act of 1976") that:
"A decision given under this section and the notification of such decision shall—
(a) in case the decision is made by a planning authority and is one by which any permission or approval is refused or is granted subject to conditions, comprise a statement specifying the reasons for the refusal or the imposition of conditions, and
(b) in case the decision is made on appeal, comprise a statement specifying the reasons for the decision, provided that where a condition imposed is a condition described in paragraph (a) or any subsequent paragraph of subsection (2) of this section, a reference to the paragraph of the said subsection (2) of this section, a reference to the paragraph of the said subsection (2) in which the condition is described shall be sufficient to meet the requirements of this subsection."
Counsel refers to the fact that article 65 of the Local Government (Planning and Development) Act, Regulations, 1994 ('the 1994 Regulations') reinforce this requirement by providing that the notification of a decision on appeal had to state the reasons for the decision including, in the case of a decision to grant permission or approval subject to conditions, the reasons for the imposition of the conditions. Counsel submits that the term "considerations" appearing in the Act of 2000 at s. 34 (10) adds something to the reasons which have to be given. Essentially, it is submitted that the decision of the Board is defective by not reaching the new standard required in the Act of 2000. This requires that the main reasons and the considerations be given. It is submitted that this is a pivotal phrase in the statutory scheme and not something that arises simply out of an excess of caution. It is submitted that the issue of the meaning to be given to the term "reasons and considerations" has not previously been judicially considered. It is submitted that a point of this importance is not one to be treated on a leave application and is such that this court should grant to the applicant the leave which he seeks. Counsel refers to the jurisprudence of the Superior Courts dealing with the obligation to give reasons in administrative decisions as indicated in The State (Creedon) v. Criminal Injuries Compensation Tribunal [1989] I.L.R.M. 104, and O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. It is submitted by counsel that one cannot say that the terms "reasons" and "considerations" are necessarily synonymous, whether by reference to the rules of statutory interpretation or otherwise. It is submitted by counsel that 'considerations' are "the matters that go onto the weighing scales". It is submitted that the processing of the considerations leads to the end point of the decision itself. Counsel submits that the process is antecedent to the decision and is when matters are being considered. It is submitted that considerations are matters one could list before reaching a decision. Counsel submits that considerations are not in a temporal sense coincident with the decision itself. Counsel refers to the fact that the Board is obliged to record how it wrestled with and ultimately disposed of the inspector's conclusions on a key aspect of the proposal. While there was a requirement to give the main reasons there was furthermore a requirement to give the considerations. Counsel asks the question 'What was the process by which the decision was reached?'. Counsel submits that the parties are to be afforded a legitimate insight into the matter. With regard to the stated reasons and considerations, it is submitted that paragraphs (a) to (d) thereof are formulaic considerations which are a million miles from the controversy in these proceedings. It is submitted that if this is a sufficient manner in which the Board meets its statutory obligations then it effectively can operate behind a curtain. It is submitted that the further reasons given are obtuse and cryptic.
Counsel submits that the language used by the Board does not address the occlusion of the public view of the old terminal building. It is submitted that the decision in question cannot stand insofar as it fails to address part of the inspector's report . It is submitted that there is no indication of the thought process of the Board in reaching its decision. Counsel submits that the Board approached this matter on the same basis as required under the pre-2000 decision-making in disregard of the enactment of the Act of 2000. Counsel submits that all words must be given value and that 'reasons' must entail something different from the 'considerations'. Counsel further submits that the Board in its decision failed to explain why it had rejected the detailed submissions made by the applicant on its appeal to the Board. Furthermore, it is submitted that on the evidence before this court, it is clear that the Board's decision was based on additional reasons and considerations which were not stated in its decision. In this regard counsel refers to the Direction of the Board dated 26th March, 2003 and signed by Mr. Michael Wall. In this document it was stated as follows:
"In arriving at its decision the Board did not agree with the inspector's conclusion that the proposed elevated access corridor would, by reason of its height, bulk and location, detract from the setting of the protective structure and be detrimental to the character of the protected structure.
In deciding to grant permission for the proposed passenger aircraft pier, the Board also decided to grant permission for the proposed optional air bridges to both sides of the proposed aircraft pier, whereas the inspector's recommendation recommended the omission of the air bridges to the southern side of the proposed aircraft pier. The Board considered that the proposed air bridges to the southern side of the proposed aircraft pier would not seriously detract from the airside setting of the Old Central Terminal Building."
It is submitted that given that these reasons and considerations were included in the Direction of the Board, that it is evident they should be regarded as part of the main reasons and considerations upon which the Board's decision was based. It is submitted that they should therefore have been reintroduced in the decision of the Board and the Board breached the requirements of section 34 (10) by failing to include these reasons and considerations in its decision.
It is further submitted that in its report the Board failed to state the main reasons for not accepting the recommendation of the Inspector that permission for the access corridor should be refused. Although the Board gives as its reason for rejecting the recommendation of the inspector that it concurred with the decision of the planning authority, the Board does not actually state the reasons why it rejected the recommendation of the inspector. It is submitted that the Board failed to give any reason at all in that its decision for its rejection of the recommendation of the inspector that the optional air bridges to the southern side of the proposed aircraft pier should be omitted.
Counsel further refers to the fact that the Board's decision is invalidated by reason of its failure to make any reference to the Fingal County Development Plan of 1999. It is submitted that pursuant to s. 34 (2) (a) of the Act of 2000 when making its decision, the Board is restricted to considering the proper planning and development of the area, regard being had to a number of matters including the provisions of the Development Plan for the area. On this basis it is submitted that the Development Plan is a mandatory consideration which must be taken into account. With regard to the provisions of s. 34 (10) of the Act of 2000, it is submitted that those considerations must, at a minimum, include the applicable statutory considerations to which the Board is obliged to have regard and, in particular, in this case the Development Plan.
Further reliance is placed by the applicant on the imposition by the Board of a condition that certain matters be agreed with the planning authority. In this regard it is submitted that the Board erred in law and acted in excess of or without jurisdiction in imposing conditions requiring matters to be agreed between the developer and the planning authority. It is submitted that the Board was not entitled to grant permission subject to conditions that require matters to be agreed with the planning authority because the statutory power to impose such conditions which is conferred on the planning authority by s. 34 (5) of the Act of 2000 is not extended to the Board pursuant to the provisions of s. 37 (1) (b) of that Act. Section 34 (5) of the Act of 2000 provides as follows:
"The conditions under subsection (1) may provide that points of detail relating to a grant of permission may be agreed between the planning authority and the person to whom the permission is granted and that in default of agreement the matter is to be referred to the Board for determination."
It is submitted that subs. 5 is the only provision in s. 34 that expressly confers the power on a planning authority to impose such a condition and it is significant that, unlike subs. 4, there is no caveat preserving the generality of subs. 1. It is, therefore, submitted that a textual analysis of s. 34 clearly indicates that the power of the planning authority to impose such a condition is derived from subs. 5 alone and not from the general power to impose conditions contained in subs. 1. Counsel refers to s. 37 of the Act of 2000 which deals with appeals to the Board and in particular subs. 1 (b) thereof which provides as follows:
"Subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and subsections (1), (2), (3) and (4) of section 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority."
It is submitted that it is patent from this subsection that the power to impose conditions conferred on planning authorities by ss. 34 (1) and 34 (4) are extended to the Board. However, it is submitted that the power to impose conditions requiring matters to be agreed which are conferred on planning authorities by subs. 34 (5) is not so extended to the Board and it is submitted that no such power can be implied on the part of the Board.
In support of this submission counsel refers to s. 26 (5) (b) of the Act of 1963 (as substituted by s. 3 of the Local Government (Planning and Development) Act, 1992) which contained an equivalent of what is now section 37 (1) (b) and provided as follows:
"Subject to the following provisions of this subsection, where an appeal is brought from a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and the provisions of subsections (1) and (2) of this section shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under this section of an application by a planning authority."
On this basis it is submitted that there was no equivalent provision to s. 34 (5) of the Act of 2000 in the Act of 1963 and, hence, the power of the planning authority or the Board to impose conditions requiring matters to be agreed with the planning authority was implied under the general power to impose conditions conferred by section 26 (1). However, it submitted that a specific power to impose such conditions is now contained in subs. 5 and that it would be contrary to the scheme of s. 34 of the Act of 2000 to imply any additional power or impose such conditions under the general power to impose conditions contained in s. 34 (1). It is submitted that whether this was an inadvertent exclusion or otherwise is irrelevant when one considers the language of s. 37 (1) (b). It is submitted that this subsection is very clear in that it is not open to the court to add words to the statute in at attempt to remedy any procedural defect. In support of this submission counsel refers to McGrath v. McDermott [1988] I.R. 258 and H v. H [1978] I.R. 138 insofar as these authorities indicate the approach of the courts to statutory interpretation. Finlay C.J. indicated in the former case that the courts have not got a function to add or delete from express statutory provisions so as to achieve objectives which the court considers to be desirable. Words may be implied to give effect to a clear objective and to avoid absurdity.
It is submitted that in the instant case there is no question of an absurdity resulting and therefore it is not permissible to adopt anything other than a literal interpretation of ss. 34 and 37.
Dealing with the nature of the matters left to be agreed with the planning authority, these included external finishes, textures and colours. It is submitted that these are matters which fall outside the scope of matters properly to be left in any event for consultation with a local authority.
With regard to the requirement to invite submissions or request observations, it is complained that the Board did not in fact give the requisite period of time to the applicant within which to respond. It is conceded that in the instant case where it did file its observations or submissions that this is not the strongest point at issue in these proceedings.
On behalf of the Board it is submitted by Ms. Nuala Butler S.C. that the report of the inspector constituted a clear and lucid presentation of his views. It is submitted that the statutory obligation of the Board differs to that of the inspector. Counsel refers to the nature of the objection that was raised by the applicant before the Board on its appeal and points out that the appeal did not extend to the points now being raised. These are referred to in paragraph 20 of the affidavit of Mr. Phillips which indicates that amongst the matters raised was the absence of an environmental impact assessment and further concerns about the design (form and function) of the proposed developments. With regard to this latter matter it is indicated that this was not related at all to the access corridor. Particular reference was made to the distance from check-in desks to the gates in the new passenger aircraft pier.
Counsel refers to the fact that the appeal taken by the applicant to the Board was not confined to the access corridor but was a broad appeal against the proposal.
Counsel further submits that the applicant does not have locus standi to raise the points now raised on this application insofar as they have not been the subject matter of the appeal taken by it.
Dealing with the reasons and considerations counsel refers to the fact that the obligation is to give the main reasons and considerations. Counsel submits that the decision of the Board contained the main reasons for departing from the recommendation of the planning inspector. Counsel submits that the Act does not require reasons and considerations to be given for departing from the inspector's recommendations with regard to the imposition of conditions. Counsel, therefore, submits that the obligation contended for on behalf of the applicant is one which does not exist. Counsel submits that insofar as the Act requires the giving of not only main reasons but considerations that this does not extend to a requirement that the Board set forth its arguments against the applicant's case. It is submitted that the applicant is not entitled to a specific rebuttal of every argument advanced by it. With regard to the decision itself, counsel refers to the fact that in its 'Reasons and Considerations' specific reference was made to the Old Central Terminal Building which is a protected structure. This is specifically referred to under the heading Proposed Development at page 1 of the decision of the Board.
Counsel submits that, while there is no obligation that all considerations be set out, the decision of the Board in fact does set out the main reasons and considerations for its decisions. Counsel refers to the fact that a key factor was whether the development should be allowed in light of the protected status of the Old Central Terminal Building and that this is addressed in the second paragraph of the reasons and considerations. In the third paragraph it indicated the reasons for departing from the recommendations of the inspector. With regard to the conditions imposed, reasons are indicated in the document for the imposition of these conditions. Counsel compared the portion of the inspector's report at page 49 thereof under the heading of Recommended Decision and the reasons and considerations contained in his recommendation to those advanced by the Board in its decision. It is submitted that the Board was essentially concerned with the decision of the planning authority to grant planning permission. Counsel refers to the fact that the main considerations of the overall decision are those set out at paragraph (a) to (d) under the heading 'Reasons and Considerations' in the decision of the Board. Counsel refers to the fact that in regard to the imposition of conditions the obligation under s. 34 (10) is to state the main reasons for the imposition of the conditions and not considerations.
Counsel refers to the fact that no submissions at all were made by the applicant with regard to the southern bridges of the new pier and on this basis it is submitted that the applicant has no locus standi to advance this point in these proceedings.
Dealing with the power of the Board to require agreement to be reached with the planning authority, it is submitted that this is something that arises from the power to impose conditions in the first place. Counsel refers to the provisions of s. 34 (5) insofar as a role is given to the Board to act as arbiter in default of agreement between the planning authority and the person to whom the permission is granted and submits that this was something that was necessary to be stated. It is submitted that no such necessity arose in the context of decisions imposed by the Board itself as s. 34 (5) relates to the decisions imposed by the planning authority in the first instance. It is submitted that if the Board wished to add a clause to its conditions it could decide to bring the decision back to itself in the absence of agreement.
Counsel refers to the previous provisions empowering the Board to attach conditions to a decision contained in s. 26 (1) of the Act of 1963 which is now reflected in s. 35 (1) of the Act of 2000. Counsel refers to Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 where, at p. 575 McKechnie J. indicated that s. 26 (1) of the Act of 1963 was the statutory basis upon which a Board was entitled to grant planning permission subject to conditions which may include a requirement that matters should be agreed between the planning authority and the recipient of the permission. It is submitted by counsel that the removal of the pre-existing power would be required to be affected by express statutory power which is unambiguous in its terms. In this regard counsel refers to Bennion on Statutory Interpretation, 4th Ed., (2002) page 693 et seq. the author states:
"Section 269: Law should not be subject to casual change:
(1) It is a principle of legal policy that law should be altered deliberately rather than casually, and that Parliament should not change either common law or statute law by a sidewind, but only by measured and considered provisions."
At page 695 it is stated by the author as follows:
"Least alteration presumed. Where the legal meaning of an enactment is doubtful, it will be presumed, other things being equal, that it was intended to effect the least alteration of the existing law…
Presumption against taking away functions.
An aspect of the principle now under discussion is that the court will be reluctant, in the absence of clear words, to construe an Act as taking away or cutting down an existing function conferred by law…
Example 269.9 An enactment which empowered the Commissioners for the special purposes of the Income Tax Acts to collect tax at source in a particular way was held not to take away the existing function of the General Commissioners to collect it in a different way. (Grovenor Place Estates Ltd. v. Roberts (Inspector of Taxes) [1961] Ch. 148.)"
Counsel submits that the purpose of s. 34 (5) is to ensure that the inclusion of such conditions by planning authorities will not stymie or frustrate the planning process in the event that agreement cannot be reached. In the event that agreement cannot be reached, the matter is to be referred to the Board for its determination. Thus, it is submitted that the purpose of s. 34 (5) was to regulate the implied power of planning authorities to include such conditions, whilst leaving intact the pre-existing statutory implied power of the Board in this regard. Viewed in this light it is not surprising that s. 37 (1) (b) fails to expressly refer to s. 34 (5). Counsel further refers to the authority of Boland v. An Bord Pleanála [1996] 3 I.R. 435 where the Supreme Court set out the principles on the basis of which the Board was entitled to impose conditions requiring matters to be agreed between the developer and the planning authorities.
Counsel submits that the matters which are the subject matter of agreement between Aer Rianta and the planning authority in the instant case can be viewed as technical matters of detail. Counsel refers to the fact that the applicant in its earlier submissions and observations to the Board (and prior to that to the planning authority) did not include such design details.
Counsel submits that it should be borne in mind that the agreement which is required to be reached between the developer and the planning authority on foot of conditions 2 and 3 must be reached within the scope of the planning permission as a whole.
With regard to the notice sent by the Board to the applicant pursuant to section 131 of the Act of 2000 on 6th December, 2002, requiring submissions on the developer's appeal to be made to it on or before the close of business on 19th December, 2002, the applicant would have received this notice in the ordinary course of post on Monday, 9th December, 2002, and it is accepted by the Board that, strictly speaking, the applicant ought to have been given until 22nd December, 2002, to make submissions. Insofar as the applicant made very full submissions to the Board on 18th December, 2002, one day in advance of the deadline set by the Board in the s. 131 notice, it is submitted that the applicant was not prejudiced by any failure to comply with the time limits under section 131. In addition, neither the applicant's submission which was received on 18th December, 2002, nor the letter affording such submission indicated that more time was required or that further submissions would be made if more time were given. The respondent also relies upon the fact that no averment of any prejudice whatsoever is made by or on behalf of the applicant. In these circumstances it is submitted that the applicant's case as regards non compliance with section 131 is entirely moot and that the applicant has neither locus standi nor a substantial interest in being permitted to argue this ground in full. It is submitted that the applicant is in an identical position to the applicant in Lancefort v. An Bord Pleanála [1999] 2 IR 270 which had failed to raise the issue on which it sought to rely during the course of the appeal before the Board and was held not to have locus standi to raise the point in judicial review proceedings. With regard to the challenge to the conditions imposed by the Board in its decision it is similarly submitted that the applicant has no locus standi to challenge same in light of the decision in the Lancefort case.
With regard to the obligation to give reasons, counsel has referred this court to a number of decisions including O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, Fairyhouse Club Ltd. v. An Bord Pleanála (Unreported, High Court, Finnegan J., 18th July, 2001), and Ní Éili v. The Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999). These cases indicate that an administrative body is not bound to provide a discursive judgment as a result of its deliberations. Further the Board may expressly adopt the report of its inspector as the basis of its decision and the acceptance of recommendations put forward by the inspector will necessarily imply the acceptance of the conclusions on which they were based. Furthermore, it is submitted with regard to the Board's direction that this is a public document available for public inspection and clearly has been inspected on behalf of the applicant. It is submitted that if the direction were to be construed as containing reasons or considerations upon which the decision is based (a construction with which the Board disagrees), the applicant has not suffered any prejudice since these supposed reasons have been available to it. The essential submission is that the applicant's main objections were all fully and comprehensively addressed in the inspector's report to the Board insofar as they pertain to
(a) disparity regarding the description of the proposed development,
(b) nonconformity with government directive,
(c) the prematurity of the proposal pending adoption of a master plan and
(d) the absence of an environmental impact statement.
On this basis it is submitted that the inspector's report amounts to nothing less than a reasoned judgment on the submissions identified at paragraphs 20 (a) to (d) of Mr. Phillips affidavit. It is submitted that the Board did not disagree with the inspector's findings and conclusions on these submissions. It is submitted that there was no requirement for the Board to expressly adopt the inspector's report as the basis of its decision on these matters. It is submitted that the Board is not obliged to state its reasons or considerations where its decision is not different from that of the inspector. Therefore, it is submitted that there was no requirement for the Board to set out any of its key findings on these submissions made by the applicant and the community association. It is further submitted, insofar as the Board did not agree with the inspector's conclusions regarding the elevated access corridor, that the decision of the Board sets out the main reasons for not accepting the inspector's recommendation in this regard. The Board considered that inclusion of the proposed access corridor would, subject to appropriate conditions, provide an opportunity to upgrade the entire area, rather than detract from the Old Central Terminal Building. It is submitted that the Board's reasoning in this regard is further evident from condition no. 1 whereby the Board took steps to preserve the visual amenity and enhance the setting of the Old Central Terminal Building.
On behalf of Aer Rianta it is submitted by Mr. Sreenan S.C. that the applicant has failed to meet the requirement to demonstrate "substantial grounds" for questioning the validity of the decision of the Board and that it has furthermore failed to demonstrate a "substantial interest" in the subject matter of the application for judicial review.
Counsel addressed the applicant's case under three broad headings, namely
1. The alleged inadequacy in the statement of reasons.
2. The validity of conditions no. 2 and 3 in the decision of the Board, and
3. The service of the section 131 notice.
With regard to the statement of reasons it is submitted that in assessing the adequacy of the reasons for a decision, what must be looked at is the decision in its entirety. It is submitted that the formal statement of reasons should not be read in isolation from the other documentation.
With regard to the statement of reasons pertaining to the elevated access corridor, the Board expressly refers to appropriate conditions being attached to the planning permission. When one moves to consider condition no. 1, it is clear that the Board has taken steps to meet the concerns raised in respect of visual amenity in relation to the corridor. Counsel refers to Village Residents Association Ltd. v. An Bord Pleanála [2001] 1 I.R. 441, where the High Court found that although not expressly stated in the formal reason for the grant of planning permission, the reasoning of the Board in relation to one of the substantive issues raised on the appeal was to be inferred from one of the conditions attached to the planning permission.
It is submitted that on the facts of the present case the applicant company has in no way been prejudiced by the alleged inadequacy of the statement of reasons. It is submitted that this is illustrated by the following two points. First, the applicant does not appear to have sought an elaboration of the statement of reasons from the Board. It is submitted that it is clear from O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 that a request for such a statement is a necessary proof for a successful application for judicial review. Secondly, it is submitted that it is clear from the comprehensive nature of the statement of grounds filed on behalf of the applicant company, that it was not frustrated in seeking to invoke the supervisory jurisdiction of the High Court in respect of the decision of the Board. Again, counsel relies upon the decision of the High Court in Fairyhouse Club Ltd. v. An Bord Pleanála (Unreported, High Court, Finnegan J., 18th July, 2001). It is submitted on behalf of Aer Rianta that a very full and comprehensive report was prepared by the inspector and that in his report he addressed the various grounds of appeal put forward by the applicant. It is submitted that, insofar as there was a difference between the inspector and the Board in relation to the development of the elevated access corridor, this was expressly dealt with in the decision of the Board.
Dealing with the applicant's case concerning the conditions which were left over for agreement between the planning authority and the applicant, counsel refers the decision of the Supreme Court in Boland v. An Bord Pleanála [1996] 3 I.R. 435. It is submitted in relation to each of the objections raised on behalf of the applicant concerning this matter that the objections are untenable, these being, firstly, the general objection that the Board did not have power to attach the conditions and, secondly, if it had power that its power was used inappropriately on the facts of the present case. Counsel refers to the fact that the Supreme Court upheld the legality of conditions leaving over matters to be agreed between the developer and the planning authority notwithstanding the fact that there was no express power under the previous legislation which would allow for the imposition of such a condition. The Supreme Court accepted that such a power was to be inferred. Counsel refers to s. 35 (5) of the Act of 2000 which makes it clear that the conditions which may be imposed by a planning authority may provide that points of detail relating to a grant of permission may be agreed between the planning authority and the person to whom the permission is granted and that in default of agreement the matter is to be referred to the Board for determination.
Counsel submits that the applicant's argument is unstateable insofar as it fails to take into account the clear wording of s. 34 (5). It is submitted that the Board is empowered to attach conditions under subs. 1 of the section. It is submitted, if the conditions include conditions leaving over matters to be agreed between the planning authority and the developer, that this power is equally available to the Board. It is submitted that there is a fallacy in the applicant's argument in that it proceeds on the basis that subs. 5 confers a power on the planning authority to attach a particular type of condition, when, in fact, all that the subsection does is to identify one of the existing powers already conferred under subs. 1.
Without prejudice to this argument, it is submitted that if the applicant were correct in its argument with regard to the construction of the section, the power to attach conditions of this type would, in any event, be inferred.
Dealing with the matters the subject matter for agreement between the developer and the planning authority, counsel again refers to Boland v. An Bord Pleanála [1996] 3 I.R. 435 and the decision of McKechnie J. in Kenny v. An Bord Pleanála ( No. 1) [2001] 1 IR 565. It is submitted that the details of materials, colours and textures of the external finishes are precisely the type of technical matters of detail which can and should be left over for agreement. It is submitted that the applicant is in no way prejudiced by the imposition of such a condition. Counsel states that it is of note that the applicant did not object to the fact that the planning authority in its decision had included a similar type of condition.
With regard to condition no. 3 requiring the planning authority to be notified in writing prior to the commencement of the development as to which option the developer proposed to take in relation to the final design of the west end of the proposed pier, and in the event that the developer opts for a reduced length and arrangement that details of the design, including revised plans and elevations, be submitted to and agreed in writing with the planning authority prior to the commencement of the development, it is submitted that this condition leaves over a very limited matter for agreement as between the developer and the planning authority. It is submitted that this is evident from the documentation submitted as part of the planning application. The matter is referred to in the inspector's report. It is submitted that in effect the developer sought to have the option of finishing the western end of the pier some 24 metres short, thereby providing a rectangular end, rather than the proposed irregularly shaped end. In the context of the overall development it is submitted that this is a very minor matter and, precisely the type of matter of technical detail which is appropriate to be left over to be dealt with by way of such a condition.
With regard to the section 131 notice it is submitted that this ground does not give rise to a substantial ground of challenge. It is submitted further that the applicant does not have a substantial interest so as to allow it to assert this argument. On the facts of the case, it is clear that a response to the section 131 notice was in fact made on behalf of the applicant by its agents on or about the 18th December, 2002. No objection was made during the course of that submission regarding any alleged delay in the service of the notice resulting in the applicant having less than two weeks to reply to the notice. It is submitted that in the circumstances the applicant company was not prejudiced by any alleged delay.
Counsel submits that the applicant has failed to demonstrate a substantial interest as required by s. 50 of the Act of 2000, insofar as it did not object to the air bridges either in the context of their aesthetic effect or the blocking of the view of the Old Central Terminal Building. It is submitted that not having pursued the matter at the appeal stage that the applicant has no substantial interest in the matter enabling it to obtain the leave which he seeks in this application. It was further submitted that insofar as the applicant failed to seek further reasons that its argument with regard to the inadequacy of the reasons and considerations set forth in the decision of the Board is a sterile argument and that in this regard also the applicant cannot show a substantial interest.
In reply to the submissions of counsel for the respondent and the notice party, it is submitted by Mr. Gleeson on behalf of the applicant that the statement attributed to Finlay C.J. in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 with regard to the fact that the applicant in that case should have requested reasons from the Board was obiter. Counsel questions the correctness of this statement. In this regard counsel refers to the passage from the judgment of Laffoy J. in the case of Village Residents Association Ltd. v. An Bord Pleanála (No. 3) [2001] 1 I.R. 441 at p. 455 where she stated, inter alia, as follows;
"As a general proposition, I found it difficult to determine what weight should be given to reasons advanced by the first respondent at a time subsequent to the decision when the decision has been impugned for want of adequate reasons. A curious feature of the passage from the judgment of the Supreme Court in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 which I have quoted above is that it seems to envisage the first respondent elaborating on or explaining its reasons on request from an interested party, notwithstanding that it is quite clear that the obligation under s. 26 (8) and under reg. 65 is to give reasons contemporaneous with the decision, in fact, in the decision itself and in the notification of it."
Counsel submits that there is an element of unreality about the applicant going to the Board requesting it to give further reasons. It is submitted that the Board cannot be relieved from its obligation to state the main reasons and considerations in its decision. Counsel submit that all that has been added in the further documentation is the reason why the inspector's report was rejected by the Board.
With regard to the obligation on the part of the applicant to demonstrate a substantial interest, it is submitted that, as one of the main users of the airport, Ryanair must be considered to have a substantial interest in the matter. It was submitted furthermore that the suitability of the access corridor was fully raised by the applicant in its submissions to the Board.
With regard to the decision of McKechnie J. in the case of Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565, it is submitted that this decision relates to the pre-2000 enactments and that there is an absence of authority in relation to the Act of 2000.
With regard to s. 37 (5) of the Act of 2000 it is submitted that there is in effect an explicit de-selection of the Board insofar as the power to impose a condition requiring agreement with the planning authority is concerned. It is submitted that the expressed designation of the planning authority in the context of the power in question must represent the beginning and end of the argument in this case in this regard.
Conclusions
Main reasons and considerations
In the first instance the question must be asked 'Has the applicant shown substantial grounds for contending that the impugned decision of the respondent is void by reason of the failure to include therein its main reasons and considerations on which the decision was reached?'. It is clear that the decision purports to include a statement of matters under the heading 'Reasons and Considerations.' While it is true that the term 'considerations' appearing in s. 34 (10) of the Act of 2000 has not been judicially defined, I am satisfied that by reason of this fact alone, it cannot be said that the point raised by the applicant necessarily raises substantial grounds for contending that the impugned decision is invalid or ought to be quashed and that, accordingly, this court should grant to the applicant the leave which it seeks. I am prepared to assume that the word "considerations" may not necessarily be the same as the term "reasons" but the reasons for a decision may undoubtedly include the considerations of the Board and in this way indicate the matters contemplated by the Board in reaching its decision.
I am satisfied that the applicant has failed to show substantial grounds that the terms of the 'Reasons and Considerations' set out by the Board in its decision are such that they must be considered to fall short of the requirements of s. 34(10) of the Act of 2000 or that the respondent in its determination has failed to comply with the requirements of the sub-section. It is clear that the sub-section refers to 'the main reasons and considerations on which the decision is based', which indicates that there may be in any event subsidiary reasons and considerations.
Similarly, the question must be asked whether the applicant has established substantial grounds for contending that in its decision the Board failed to comply with the requirements of s. 34 (10) (b) insofar as that subsection required the Board to indicate in its decision the main reasons for not accepting the recommendation in the report of the inspector appointed to report on the appeal on behalf of the Board. Again I am satisfied that the applicant has failed to show substantial grounds in support of its contention that the Board had in this regard failed to comply with the requirements of the sub-section. In this regard I accept the submissions of counsel for the Board.
With regard to the further matters referred to in the Direction of the Board of the 26th March, 2003, I do not accept that the applicant has demonstrated substantial grounds for contending that the matters referred to therein, pertaining to the disagreement by the Board with the inspector's conclusions regarding the effect of the proposed access corridor or the proposed air bridges to the southern side of the proposed aircraft pier, are such that they must be considered part of the main reasons and considerations of the Board for not accepting the recommendation in the report of the inspector appointed to report on the appeal on behalf of the Board, such that these matters had to be set out in the decision itself.
Further, with regard to the fact that the decision of the Board did not make any express reference to the County Development Plan adopted by Fingal County Council, I do not accept that the applicant has demonstrated substantial grounds in this regard for contending that the decision of the Board is invalid or ought to be quashed insofar as it is contended that the Development Plan in question must fall to be considered as part of the main considerations of the Board. I consider that it is legitimate for the Board to have regard to matters in the Development Plan without necessarily referring to same as being part of the Development Plan.
I am furthermore satisfied having regard to the decision of Finnegan J. in Fairyhouse Club Ltd. v. An Bord Pleanála (Unreported, High Court, 18th July, 2001) that it can be inferred that the Board accepted the report of its inspector to the extent that it did not depart from his recommendations.
Matters to be agreed with the Planning Authority
Can it be said that the applicant has demonstrated substantial grounds for contending that the Board did not have authority to impose as a condition that certain matters be agreed with the Planning Authority? This issue is essentially one of statutory interpretation. While it has been submitted on behalf of the applicant that the power of a planning authority to impose such a condition derives from s. 34 (5) alone, it has to be recalled that this Court has previously decided in the case of Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 that the power enjoyed by the Board to impose a condition that matters should be agreed between a planning authority and the recipient of a permission is one arising under s. 26 of the Act of 1963. In this regard, the court was following the earlier decision in Boland v. An Bord Pleanála [1996] 3 I.R. 435. It has not been suggested that the principles outlined in Bennion Statutory Interpretation, referred to by counsel for the Board on this application, do not represent a correct statement of the law such that any intended removal of the power previously enjoyed by the Board should be removed by measured and considered provisions and that the least alteration of the law should be presumed, all matters being equal. I am also inclined to the reasoning of counsel for the Board as to the purpose of s. 34 (5). I am further inclined to accept the submissions of counsel for the notice party that subs. (5) does not in fact confer the power in question but rather identifies the existing power. In light of these considerations I am not satisfied that the applicant has advanced substantial grounds for contending that the Board is not entitled to impose a condition requiring agreement to be reached on certain matters between the planning authority and the recipient of the grant of planning permission.
The limitation of such conditions:
Having so concluded, the next issue that remains to be decided is whether the applicant has advanced substantial grounds for contending that the conditions in question requiring agreement are in excess of the powers of the Board to impose a condition requiring agreement with the planning authority.
The relevant law is that set out in Boland v. An Bord Pleanála [1996] 3 I.R. 435 where the Supreme Court set out the guiding principles in this regard as follows:
1. The Board is entitled to grant a permission subject to conditions.
2. The Board is entitled, in certain circumstances, to impose a condition on the grant of a planning permission in regard to a contribution or other matter and to provide that such contribution or other matter be agreed between the planning authority and the person to whom the permission or approval is granted.
3. Whether or not the imposition of such a provision in a condition imposed by the Board is an abdication of the decision-making powers of the Board depends upon the nature of the "other matter" which is to be the subject matter of agreement between the developer and the planning authority.
4. The "matter" which is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and the circumstances of each particular application and development.
5. In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the Board is entitled to have regard to:
(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require re-design in the light of the practical experience;
(c) the impracticability of imposing detailed conditions having regard to the nature of the development;
(d) the functions and responsibilities of the planning authority;
(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;
(f) whether the enforcement of such conditions require monitoring or supervision.
In the instant case the Board in conditions 2 and 3 provided for prior agreement with the planning authority as follows:
2 Prior to the commencement of the development, details of the materials, colours and textures of all the external finishes to the proposed development shall be submitted to the planning authority for agreement.
Reason: In the interest of orderly development and the visual amenities of the area
3 The planning authority shall be notified in writing, prior to commencement of development, as to which option the development proposes to take in relation to the final design of the west end of the proposed pier. In the event that the developer opts for a reduced length and arrangement (as indicated in the outline specifications at paragraph 2.3.2), details of the design, including revised plans and elevations, shall be submitted to and agreed in writing with the planning authority prior to commencement of development.
Reason: In the interests of clarity and proper development.
I am satisfied that the applicant has failed to show substantial grounds that either of conditions 2 and 3 fall outside the permitted limits as indicated in Boland v. An Bord Pleanála [1996] 3 I.R. 435 and in particular having regard to
(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require re-design in the light of the practical experience;
(c) the impracticability of imposing detailed conditions having regard to the nature of the development;
Accordingly, I am satisfied that the applicant has failed to show substantial grounds to the effect that the two conditions in question are ultra vires the powers of the Board.
The section 131 Notice
Finally, with regard to the notice sent to the applicant pursuant to s. 131 of the Act of 2000, I am satisfied that as a matter of fact that even if it purported to restrict the time within which a submission might be made at the time, this in fact did not preclude the making of any submission by the applicant as it did in fact made its submission within the period allowed. Once the submission had been made within the statutory period the letter inviting same could not act in a manner to defeat the legal rights of the applicant. I am satisfied that on the facts of this case the issue raised is essentially a moot and the applicant has failed to advance substantial grounds for contending that the impugned decision is in any way invalidated or ought to be quashed by reason of the terms of the notice in question.
I am also satisfied that in the particular circumstances the applicant has failed to show a substantial interest to challenge the decision in question on this basis.
While the requirements of s. 50 of the Act of 2000 include the obligation for an applicant to show "substantial interest", this has not been the subject of any significant judicial guidance to date. However, it is clear that the nature of the interest in question is not limited to an interest in land or other financial interest. It is clear, however, that an applicant directly affected by a proposed development will in all probability have a "substantial interest".
In the context of the obligation for a party who is other than a prescribed party or an applicant for permission to have participated in the planning process by making submissions or observations, I consider that a party such as the applicant, who participated in the appeal process, cannot avail of the procedure under s. 50 to question the validity of a decision if it relates to a matter that could have been addressed in the appeal but was not.
I accept as correct the submission made by counsel for the Board that the applicant does not have locus standi or has not shown a substantial interest to raise certain of the grounds advanced having regard to that requirement under s. 50 of the Act of 2000, in circumstances where those matters were either not raised in the course of the appeal or do not arise from the appeal. I believe that the position indicated by Keane J. in Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 IR 270 may assist in interpreting the Act of 2000. At p. 315 of the report he stated, inter alia, as follows:
"It is clear, as was held by this Court in Chambers v. An Bord Pleanála [1992] 1 I.R. 134, that the fact that a person affected by a proposed development did not participate in the appeals procedure is not of itself a reason for refusing locus standi. It may even be that a company which came into being after the decision which it is sought to challenge may, in particular circumstances, be in a position to assert locus standi, as held by Comyn J. in the case to which I have already referred. But it would, in my opinion, be a significant injustice to a party in the position of the notice party to be asked to defend proceedings on the ground of an alleged irregularity which could have been brought to the attention of all concerned at any time prior to the granting of permission, but which was not relied on until the application was made for leave to bring the proceedings." (emphasis added).
While the first part of this passage has now been overruled by the express provisions of s. 50 of the Act of 2000, I am satisfied that the emphasised portion of the passage is a statement of the law which survives. The provisions of s. 50 (4) (d) which provide that "A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest", clearly reflect the views expressed by Keane J. where he stated, inter alia, at p. 317 of the report:
"I do not arrive at the conclusion that the applicant lacked standing solely because of the fact that it is a company limited by guarantee owning no property affected by the permission. I would accept, as a general proposition, that such bodies may be entitled to locus standi in proceedings of this nature, although they cannot point to any property or economic interests being affected by the relevant decision."
In the instant case it is clear that the applicant could have raised at the appeal stage certain of its concerns relating to the new pier itself which it did not raise until the bringing of this application. In this regard I refer to its failure to address the proposal for bridges on the southern side of the new pier. Insofar as that is the situation I am satisfied that to that extent also it lacks the necessary locus standi and cannot show that it has a 'substantial interest.'
I do not accept the submission of counsel for the applicant that being a user of the airport, the applicant has locus standi. I accept that as a user it may be in a position to show a substantial interest but I do not accept that it necessarily follows that merely being a user it must be considered to have a substantial interest.
In conclusion, I am satisfied that the applicant has failed to meet the required standard to obtain leave of this Court to institute judicial review proceedings against the decision of the Board and I will accordingly refuse this application.
