Interpretation of Planning Conditions – recent developments

1. Introduction
   If you have ever perused the conditions attached to a planning permission only to be utterly confused with the language used in those conditions then it is worth reading further!A planning permission is not a primary piece of legislation nor a statutory instrument and the wording of the conditions will not have been formulated with the degree of accuracy that legislative draftsmen would use.  Indeed, it is the interests of ordinary members of society that plain and clear language is used which is fully comprehensible upon a literal reading.

   The purpose of this article is to look at the law applied by the Irish courts in interpreting planning conditions and to look at the recent judgement of the Supreme Court in the Tullamaine Castle Stud¹ case on this very point.

2. Relevant Caselaw
   The approach of the Supreme Court  in XJS Investments Limited -v- Dun Laoghaire Corporation² is still applied today.  In that case McCarthy J provided:“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 cannons of construction applicable to such material;
   

   (b)  they are to be construed in their ordinary meaning as  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.”

   Somewhat closer in time, Fennelly J., in Kenny -v- Dublin City Council³, one of a saga of cases concerning the building by Trinity College Dublin of its new halls of residence in Dartry, observes:-

   “A court, in interpreting a planning permission, may need to go no further than the planning document itself or even than the words of a condition in issue within the context of the permission. The words may be clear enough. However, it will very often need to interpret according to context.”

   Planning permissions are of considerable importance not just to persons having an interest in the property to be developed but also to the community as a whole since they affect the proper planning and development of the area.  Accordingly, there is a requirement that such documents should be couched in terms which are comprehensible and capable of construction.  The High Court has stated that this requirement imposes an obligation upon planning authorities (and An Bord Pleanala) to take reasonable steps to ensure insofar as they can that the terms of documents granting or refusing planning permissions will be comprehensible to members of the public.

   The High Court criticised Dublin City Council for the lack of clarity in the wording of a condition in a planning permission in Dublin City Council -v- Liffey Beat Limited.  In that case, there was a restriction imposed in the planning permission on “use of…the premises as a night club or a similar function type premises other than those stated in conditions 4(a) and 4(b)”.

   The respondent in this case had prior to the court date sought clarification from Dublin City Council as to what it had intended by using this language.  No clarification was provided.  The High Court indicated that where a restrictive condition was imposed confining the use of property in a particular manner then some care should be exercised by the party which is imposing the condition to clarify the nature and extent of the restriction so imposed.  The High Court went on to say that where clarification is sought from the planning authority by a party having an interest in the property as to the nature and extent of the restriction then reasonable steps should be taken by the planning authority to provide the clarification sought.  The High Court pointed out that the planning process is intended to be substantially consultative in nature (subject to the application of the principles of natural and constitutional justice).

   In the Liffey Beat case the High Court indicated that the conditions which applied in respect of the three planning permissions in question had been “drafted so poorly that their construction for practical purposes had proved very difficult”.  Dublin City Council did argue that the term “use… as a night club” can and would be understood within its ordinary meaning by members of the public without legal training and that the court should stand in the shoes of members of the public for that purpose. The court did not accept this.  Indeed, the court pointed out that no evidence was adduced in the proceedings towards assisting the court in establishing what the applicant intended to achieve by imposing the restrictive conditions in the planning permission. The High Court said it would not speculate on what the applicant intended to achieve and it would be inappropriate to do so.

3. Tullamaine Castle Stud CaseThe claim brought by Tullamaine Castle Stud against Tipperary Raceway was essentially twofold.  There was an allegation that Tipperary Raceway had caused  a material change of use of its motor racing circuit by reason of a significant intensification of use.  In addition, it was contended that the manner in which the motor racing circuit was operated amounted to a private law nuisance.  It was alleged that the racing activities caused significant noise and disruption and that the racing activities were now occurring to an intensified degree outside the times originally permitted by the main planning permission from 1981.The claim succeeded in the High Court on both aspects and an injunction significantly restricting the operation of the motor racing circuit was imposed.  In delivering his judgment, Mr Justice Charleton indicated as follows:-

   “A planning permission is not a legal statute and nor is it to be construed as such.  Rather it is a document addressed to the world at large and one of particular interest to those who feel, by reason of proximity to the development authorised, or for good reasons, like the preservation of what remains of that traditional Irish countryside, that they may be affected by it.  It is the view of a reasonable person looking at the permission and the conditions attached thereto which should determine how a court construes the documents.”

   The Supreme Court delivered its judgment on 27 July 2016.  One of the key issues the Supreme Court had to adjudicate on was whether in the proper construction of the 1981 planning permission it did or did not contain a condition relating to the scale and timing of the operation of the motor circuit.

   Interestingly,  the 1981 planning permission did not as one of its conditions impose restrictions on days and times during which the activities could be carried out at the race track.  The main condition the court had to look at was Condition 1 being the usual condition specifying that the development be carried out in accordance “with the applicant’s submitted drawings and outline specifications” unless modified by other conditions.   One of the conditions did require the racetrack owners “to take whatever steps are deemed necessary by the Planning Authority” to remedy any situation which gave rise to “justifiable complaints by local residents”.  There was little emphasis put on this latter condition.  The Supreme Court noted that at a minimum this condition was open to the comment that it may be far too vague to be capable of realistic enforcement.

   Both the High Court and the Supreme Court looked at the documents submitted for outline planning permission. The Supreme Court affirmed the dicta of McCarthy J in XJS Investments Limited and indicated that the court is required to construe planning documents not as complex legal documents drafted by lawyers but rather in the way in which the ordinary and reasonably informed persons might understand them.  The court pointed out that the XJS Investments approach was an early example of the move towards what has been described as “a text in context” method of construction appropriate to the determination of the meaning of all documents potentially affecting legal rights and obligations.

   The text in context approach requires the court to consider the text in the context of the circumstances in which the document concerned was produced including the nature of the document itself.  One of the documents submitted as part of the outline application did deal with the scale and timing of the operation and stated that it was intended to operate the racetrack on Saturday or Sunday evenings from April to October and outside of this for practice by motoring organisations under supervision.  The document specified that the duration of each racetrack operation would be approximately three hours maximum.  Thus, the Supreme Court asked whether it was appropriate to interpret those provisions (i.e. in respect of the  hours of racing etc) as amounting to part of the “outline specifications” so that they may said to have been the subject of the condition to comply with such specifications as set out in Condition 1 of the planning permission.

   The Supreme Court noted that to interpret Condition 1 of the planning permission in a way which imposes very specific obligations would require the drawings and specifications as lodged to the planning permission to be clearly of a nature designed to identify specific and precisely enforceable parameters for the development.  The court noted that physical plans easily meet this test in that the physical buildings constructed must be in conformity with the plans submitted.  The court did provide that the information supplied by Tipperary Raceway was not at all specific insofar as the scope of use was concerned.  Language such as “would be intended” to operate the track on “Saturday or Sunday evenings” was used. Accordingly, the Supreme Court ruled the language used was not specific enough to set outright parameters for the intended use  so as to be caught by Condition 1 (i.e. requiring Tipperary Raceway only to use the property within those timeframes).  The Supreme Court did remark on the obvious point that if the planning authority had intended that the racetrack be limited to operating within specific timeframes then such a condition should have been inserted in the planning permission.

   The relevance of this interpretation meant that in assessing whether there had been intensification of use the information supplied to the outline planning application would be used as a baseline only for assessing the originally permitted activities as opposed to being interpreted as an outright commitment by Tipperary Raceway only to carry out activities within the timeframe set out in that information.

   The High Court after interpreting the 1981 permission had ruled that Tipperary Raceway was bound by the terms of the 1981 permission to operate races only on a Saturday or Sunday and for a maximum duration of three hours during the months of April to October only and that they  may be allowed up to two hours of practice during the week of a race but no more than that and injuncted them to comply with these term. Whilst Supreme Court did agree that the current use by Tipperary Raceway did amount to an intensification of use, it did not find that there had been a breach of a specific condition in the original planning permission for the reasons set out above.  The Supreme Court did allow the appeal but in acknowledging some form of injunction would be appropriate remitted the case back to the High Court to decide on its form.

4. ConclusionPlanning authorities must take care when formulating conditions to a planning permission.  Whilst the courts accept that planning permissions are not drafted by legislative draftsmen that itself does not allow a planning authority to use vague and unclear language.  The risk of doing so is that the condition could become unenforceable.  Furthermore,  the courts have a set of principles they would apply in interpreting planning conditions and they will not impose conditions in a planning permission which the planning authority could have inserted had they chosen to do so.

For further information on this topic, please contact Brendan Sharkey at bsharkey@reddycharlton.ie

¹ Robert Lanigan, Deirdre Lanigan and Benghazi Limited trading as Tullamaine Castle Stud v Michael Barry, Brenda Barry and Motor Speedway Limited t/a Tipperary Raceway [ 2006] IESC 46

² [1986] IR750

³ [2009] IESC 19