THE HIGH COURT
JUDICIAL REVIEW
NO. 183 JR 1999
BETWEEN 
SEAN LIDDY
APPLICANT
AND
THE MINISTER FOR PUBLIC ENTERPRISE, THE IRISH AVIATION AUTHORITY AER RIANTA TEORANTA IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Judgment of Finnegan P. delivered on the 4th day of February 2003.
On this application the Applicant seeks relief by way of Certiorari, Mandamus, Declaration and Injunction in the following circumstances. The Applicant owns lands at Ballycalla, Newmarket on Fergus, Co. Clare comprising in area some thirty acres upon which stands his residence. The lands are zoned for residential development. Seventeen acres of the lands are within an area described as a "red safety area". Between 1991 and 1997 the Applicant applied for planning permission on five occasions and was granted permission on each occasion by Clare County Council but the permission on each occasion was refused on appeal by An Bord Pleanala on the ground inter alia that the proposed development fell witl-in the "red safety area". The Local Goverrunent (Planning and Development) Regulations 1994 Regulation 32(1)(h) requires a planning authority to notify the Irish Aviation Authority ("the Authority") or a planning authority where it appears to it that the development might endanger or interfere with the safety of aircraft or the safe and efficient navigation thereof and it is provided in the Third Schedule paragraph 8(b) thereof that compensation shall not be payable where permission is refused on the grounds that the development would endanger or interfere with the safety of aircraft or the safe and efficient navigation thereof. The Applicant made a number of unsuccessful applications for compensation.

"Red safety zone" is used colloquially to describe an area around an airport within which new development is limited by planning authorities red being the colour used on drawings to delineate such areas. In 1968 the Department of Transport and Power ("the Minister" which expression includes its. successors and including the first named Respondent) notified Clare County Council of areas in which it was considered that restrictions on new developments were necessary to ensure the safe operation and development of Shannon Airport by means of a map showing such areas in red and requested that they be notified of any planning applications for proposed development in or adjacent to those areas. On receiving notification the Department would advise Clare County Council of its views. From 1973 the Minister notified Aer Rianta of such applications and Aer Rianta would submit observations to the Minister on the same and the Minister would in turn communicate with Clare County Council in relation to that proposed development. The same process applied in the event of an appeal to An Bord Pleanala. The Irish Aviation Authority was established on the 1st January 1994 pursuant to the Irish Aviation Authority Act 1993 having among its objects the following-

"To ensure that Irish air space and other air space in relation to which air navigation services are provided by the company are used in a safe and efficient manner to facilitate their use ".
The Authority implements the standards set by the International Civil Aviation Organisation which are annexed to the Convention on International Civil Aviation - the Chicago Convention. The Authority is primarily concerned with planning applications which infringe the airports obstacle clearance surfaces as provided for in I.C.A.O. Annex 14. Aer Rianta is concerned with any development below such clearance surfaces which would interfere with the future operation and development of an airport. The concerns of Aer Rianta relate to issues of public safety on the ground, noise, environmental matters and operational efficiency. From 1995 onwards Aer Rianta as agent of the Minister undertook the lodging of its own planning objections including appeals to An Bord Pleanala in relation to development which it considered interfered with the safe operation and development of the State airports and with the safety and efficiency of air navigation at airports. The site for the Applicant's proposed developments lies along the extended centre line of runway 13/31 at Shannon airport and for this reason objections were lodged to the Applicant's planning applications with Clare County Council and appeals lodged against the permissions granted.

There are in existence other statutory provisions which affect development in the region of or which may affect airports -
1.	Air Navigation and Transport Act 1950 section 14. The section provides as follows -
"14(1) Whenever the Minister is of opinion that the unrestricted use of a particular area of land in the vicinity of an aerodrome would interfere with the navigation of aircraft flying to or from that aerodrome he may by order (in this section referred to as a protected area order) do the following things -
(a) declare that the particular area of land shall be a protected area for the purposes of the order.
(b) declare that, within the protected area, it shall not be lawful for any person save under and in accordance with a permit granted by the Minister-
(i)	to erect or add to any building or
(ii)	to erect or place any post, pole or other thing so that any part of the building, post, pole or other thing (in this section referred to as an obstruction) will be at cr greater height than that fixed by the order ".
The section provides for compensation to any person with an interest in land injuriously affected by the refusal of the Minister to grant a permit or any condition attached to a permit.
2.	Air Navigation and Transport Act 1950 section 13.
This section empowers the Minister to place upon any land any apparatus he considers necessary for the purpose of indicating any position or any obstruction or of signalling or supplying information to persons navigating aircraft to or from or in the vicinity of an aerodrome and provides compensation to any person having an estate or interest in the land injuriously affected.
The Irish Aviation Authority Act 1993 section 32 provided that the powers conferred on the Minister by the Aer Navigation and Transport Act 1950 sections 13 and 14 may be exercised by the Authority and that the references to the Minister in those sections should be construed as references to an authorised officer of the Authority.
For the Applicant it is contended that the establishment of "red safety areas" is not contemplated in any legislation or regulations and therefore lacks any legal basis and is ultra vires the powers of the Respondents. Further the statutory scheme of the Air Navigation and Transport Act 1950 section 14 excludes the possibility of any incidental residual or general power in the Respondents or any of there to create safety zones by administrative action alone and the designation of such zones, as such, is therefore ultra vires. By utilising "red safety zones" the Respondents deny the Applicant the right to compensation which would be available if the statutory scheme of the 1950 Act were utilised to achieve the Respondents' objectives: this represents an unjust attack on the Applicant's property rights contrary to the provisions of the Constitution Articles 40.3 and 43 and an arbitrary and discriminatory application of the statutory scheme contrary to the constitutional guarantee of equality before the law under Article 40.1. The Applicant further relies on the European Convention on Human Rights Articles 14 and 18 and Article 1 of the First Protocol thereto.

Insofar as the Applicant relies upon the European Convention on Human Rights having regard to the decision in re O'Laighleis (1960) I.R. 93 1 refuse relief. The Convention is not part of Irish municipal law.
The present planning code had its origin in the Local Goverrunent (Planning and Development) Act 1963. The long title to the Act is as follows -
"An Act to make provision, in the interests of the common good, for the proper planning and development of cities, towns and other areas, whether urban or rural (including the preservation and improvement of the amenities thereofi, to make certain provisions with respect to acquisition of land, to repeal the Town and Regional Planning Acts 1934 and 1939, and certain other enactments and to make provisions for other matters connected with the matters aforesaid".
The framework established by the Act and the permission regulations made thereunder facilitates public participation in the planning process. In the State (Stanford & Others) v Dun Laoghaire Corporation & Others Supreme Court 20"' February 1981 notwithstanding that the 1963 Act did not specifically give a right to
interested parties to make representations or objections before a permission is granted it was held that the tenor of the code suggests that they are to be accorded an opportunity of making such representations or objections in writing and that the purpose of the requirement to advertise is to give them that opportunity. Henchy J. said -
"It is difficult to see why advance notice of a planning application would have to be given to members of the public if interested persons were not to have an opportunity of taking steps in regard to the application before it is dealt with. The grant or refusal of a development permission involves three parties: the developer, the planning authority and the public ".
And later
"The only conclusion therefore, that can be reached as to the purpose of the advertisement of the proposed application is that it is to give interested members of the public an opportunity of making such representations or objections. Without the advertisement, either in a newspaper or on the site, the public might be shut out from the decision making process and that is an intention that should not be imputed to a code which is aimed, as the long title of the Act shows, at ensuring, in the interests of the common good proper planning and development".
It cannot reasonably be said that the Respondents here do not have ail interest in the proper planning and development of the area surrounding Shannon airport and whether this be on the basis of the safety of air transport or relates to the then existing amenities of the airport or any future development of the same. The planning authority and An Bord Pleanala are entitled to have regard to this interest in determining the proper planning and development of an area. I can find nothing in the scheme of the 1963 Act as amended by subsequent legislation to suggest that there should not be an input on the part of any of the Respondents in like manner to that given to other members of the public. Rather the contrary is the case: the Local Government (Planning and Development) Regulations 1994 Article 32 thereof require a planning authority to give notice of planning applications which may affect their interest to certain bodies: the purpose of this provision must be to reduce the possibility of such bodies failing to become, aware of the application as a result of the ordinary process of advertisement. I am satisfied that the scheme of the Act envisages participation by such bodies in the planning process and in the like manner to any other interested person or body.

This being the case the Minister in addition to the powers conferred upon him by the Air Navigation and Transport Act 1950 when exercisable by him has a right to participate in the planning process. The Authority now has the powers created by the Air Navigation and Transport Act 1950 sections 13 and 14. There is also a right in the Authority to participate in the planning process. The third named Respondent has the like right to participate in the planning process and indeed has a particular interest as the owner of lands adjoining the proposed developments in the present case. I can find nothing in the Air Navigation and Transport Acts 1946 -1998 or in the planning code to justify a finding to the contrary. The two codes have a separate distinct and continuing existence.

This being the case I see no reason why each of them the Minister (up to l" January 1994 when his fiulctions under the Air Navigation and Transport Acts 1946 - 1998 were transferred to the second named Respondent) and the Authority should not avail of that statutory right Most beneficial to them or as they think most appropriate to ensure that their interests are not adversely affected by a proposed development. Insofar as the Applicant is concerned they did participate in the planning process unsuccessfully before the planning authority and successfully before An Bord Pleanala.
This being so it is necessary to consider whether the fimnishing by the Minister to Clare County Council in 1968 of a map showing a "red safety area" was in any way unlawful and likewise whether after 1 s` January 1994 the continuance of Authority to rely upon the same was unlawful. For completeness I should also consider whether the third named Respondent in having regard to the "red safety area" and objecting to developments on the ground beneath the same was unlawful.
The history of the "red safety area" is as follows: in 1968 in response to an enquiry fiom Clare Comity Council as to restrictions on developments considered necessary in the vicinity of Shannon airport. The Minister communicated the restrictions which were desired and the areas affected are those now referred to as "red safety areas". The restrictions were largely derived from or were required by the safety standards contained in Annex 14 (Aerodrome) to the Chicago Convention which came into operation in the State by virtue of the Chicago Convention (Commencement Order) 1947 S.I. No. 109/1947 made pursuant to section 8 of the Air Navigation and Transport Act 1946. 1 am satisfied that it was appropriate in the interests of proper planning and development that these communications should have taken place and that in exercising its functions under the Planning Acts that Clare County Council and likewise An Bord Pleanala should have regard to the same. The planning authority and An Bord Pleanala retained their discretion to grant or refuse permission: in the event that permission should be granted the provisions of the Air Navigation and Transport Act 1950 sections 13 and 14 remained available. Shannon airport is important to the economy of the region in which it is situated and I am satisfied that the proper planning and development of lands in its immediate vicinity requires that regard be had to matters which could affect its operation. The safety of aircraft, the safety of persons on the ground in the vicinity of the airport and the objectives of the Chicago Convention in regard to safety of aircraft are also relevant. However insofar as the Chicago Convention is concerned there is no reason why the Respondents should restrict themselves to the standards therein and I can see no objection to them setting higher standards and seeking to have these taken into account by the planting authority and An Bord Pleanala: this it is submitted on behalf of the Applicant occurred in the present case the red safety area extending somewhat beyond the limits required by the Convention. I am satisfied that it is conducive to the efficient operation of the planning code that planting authorities should be aware of the policies and views of bodies concerned with the safety of air navigation and of airports. Accordingly I can find nothing improper in the notification to the planning authority in this case of the red safety area for Shannon airport.

Having regard to the foregoing with regard to the reliefs claimed by the Respondent on the basis that the actions of the Respondents which he claims result in his lands being sterilised without compensation under the Air Navigation and Transport Act 1950 section 14 are an abuse of process I am satisfied that this is not the case: the Respondents have availed of their entitlement under the planning code in a proper and reasonable manner. Accordingly I revise the Applicant the following reliefs which he claims –

1.	Certiorari by way of an application for Judicial Review in respect of the decision of unknown date of the first and/or second named Respondent to create a "red safety area" affecting the Applicant's property at Ballycalla, Newmarket on Fergus, Co. Clare.
2.	Mandamus by way of an application for Judicial Review directing the Respondents and each of them to inform the Applicant when, how, and tinder what power or authority a decision was taken to create a "red safety area" affecting the Applicant's property aforesaid.
3.	A Declaration by way of an application for Judicial Review that the Respondents or any of them have no jurisdiction or competence to create "red safety areas" in the manner which the first and/or the second named Respondents purported to do it at all.
4.	A Declaration by way of an application for Judicial Review that the "red safety area" purportedly created by the first and/or second named Respondents is a "protected area" within the meaning of section 14 to the Air Navigation and Transport Act 1950 as extended by section 72 of the Irish Aviation Authority Act 1993.

5.	Mandamus by way of an application for Judicial Review directing the first named Respondent and/or the second named Respondent to designate the Applicant's land to be or be within a "protected area" wider the provisions of section 14 of the Air Navigation and Transport Act 1950 as extended by section 72 of the Irish Aviation Authority Act 1993.

6.	Certiorari by way of an application for Judicial Review in respect of the decision of the first named Respondent dated the 27th day of January 1999 refusing to recognise that the Applicant's property was within a "protected area" under the provisions of section 14 of the Air Navigation and Transport Act 1950 as extended by section 72, of the Irish Aviation Authority Act 1993.

8.	Injunction by way of an application for Judicial Review restraining the first named Respondent its servants or agents fiom acting in breach of the provisions of the Air Navigation and Transport Act 1950 as extended by the Irish Aviation Authority Act 1993.
The Applicant also seeks the following relief -
7.	Mandamus by way of an application for Judicial Review directing the first named Respondent and/or the second named Respondent to enter forthwith upon a consideration of the Applicant's request for a permit for the development of the said lands, to decide on the matter with all reasonable expedition and to compensate the Applicant as appropriate for any resulting injurious affectation of his estate or interest in the said lands in accordance with section 14 of the Air Navigation and Transport Act 1950 and if necessary in accordance with the applicable arbitration procedure under the Acquisition of Land (Assessment of Compensation) Act 1919.

By letters of 15th September 1998, 2"d December 1998 and 13"' January 1999 the Applicant sought from the Authority permits to carry out developments on his lands. The Authority replied that it had no power to issue such a permit where no protected area order had been made affecting the lands. Section 14(5) of the Air Navigation and Transport Act 1950 only applies where a protected area order is in place and the Authority's response to the requests was appropriate. This court has no power to amend or expand the statutory provisions contained in section 14 aforesaid. Ftuther there is no outstanding application for a permit to which an order if appropriate could be directed.
The next relief which the Applicant seeks is the following -
8.	 Mandamus by way of an application for Judicial Review directing the second named Respondent and/or the third flamed Respondent to compulsorily acquire the Applicant's property aforesaid in accordance with sections 17 and 62 respectively of the Air Navigation Transport (Amendment) Act 1998 and the Second Schedule thereto.
The Air Navigation and Transport (Amendment) Act 1998 section 17 provides as follows -
"17(1) The company may acquire by agreement or in accordance with the Second Schedule compulsorily any land, easement interest in or other right over land or any water right for any one or more of the purposes described in section 18 ".
Section 17(2) empowers the Authority to compulsorily acquire an interest in lands not immediately required for a purpose described in section 18 where the Minister is of opinion that there is a reasonable expectation that the land will be required by the Authority in the ftiture for any one or more of the purposes described in the section. One of the purposes set out in section 18 is to secure that land adjacent to an airport shall not be used in a mariner as would interfere with or cause danger or damage to aircraft approaching or leaving an airport.
Having regard to the decision which I have reached that these Respondents may have recourse to the planning process and that their entitlement to do so is in addition to the statutory powers conferred upon them by the Air Navigation and Transport Acts 1946 - 1998 the decision of each of the Respondents as to how they should achieve their objectives in relation to lands adjoining an airport is a matter for them. If their objectives can be achieved within the planning process there is no basis in law upon which the court can compel the adoption of the statutory procedures available to them. No abuse of process on the part of either of these Respondents is disclosed on the Affidavits filed. Accordingly I refuse relief on this ground.
The final reliefs sought by the Applicant are the following –

10.	A Declaration by way of an application for Judicial Review that the sterilisation of the Applicant's land by the Respondents together with the continuing refusal of the Respondents to compensate him for such sterilisation and/or to compulsorily acquire the said land constitutes an unlawful and unjust attack on the Applicant's property rights contrary to the provisions of the Constitution and in particular Articles 40.3 and 43 thereof.
11. 	A Declaration by way of an application for Judicial Review that the sterilisation of the Applicant's land by the Respondents together with the continuing refusal of the Respondents to compensate him for such sterilisation and/or to compulsorily acquire the said lands constitutes arbitrary, unjust and discriminatory treatment of the Applicant contrary to the provisions of the Constitution and in particular Article 40.1 thereof.
Article 40.1 is concerned with equality before the law and is intended to apply both to the process of enacting and applying the law. While the Applicant discloses that planning permissions have been granted (including a permission to the Applicant) for development within the "red safety area". this does indicate that the planning code was being applied in an unconstitutional manner. In any event the Local Government (Planning and Development) Act 1963 section 82(3a) and (3) prevents me from embarking upon a consideration of the circumstances of the grant or refusal of planning permission on foot of any of the applications upon which he relies. As to the relationship between rights under Article 40.3 and Article 43 of the Constitution the position as stated ui Blake v Attorney General 1982 (I.R.) 117 -
"There exists therefore a double protection for the property rights of a citizen. As far as he is concerned the State cannot abolish or attempt to abolish the right ofprivate ownership as an institution or the general right to transfer, bequeath and inherit property. In addition he has the further protection under Article 40 as to the exercise by him of his own property rights in particular items of property ".
Article 43.2 provides as follows -
"2.1 The State recognises however that the exercise of the rights mentioned in the foregoing provisions of this Article ought in civil society to be regulated by the principles of social justice.
2.	The State accordingly may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good".
Insofar as Article 40 rights are concerned the exercise of the same may be regulated by the principles of social justice and the State may by its laws restrict their exercise with a view to reconciling this with the demands of the common good: The Central Dublin Development Association v Attorney General (1975) 109 I.L.T.R. 69.
The decision in that case was approved of by the Supreme Court in the reference on the Planning and Development Bill 1999 (2000) 2 I.R. 321 at 352 -
"Under the Local Government (Planning and Development) Act 1963, proposed to be repealed and re-enacted with many modifications by the Bill, where the value of an interest of any person existing in land to which a planning decision related was reduced the person was entitled to be paid by way of compensation the amount of such reduction of value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on the land. The prima facie entitlement to compensation was, however, severely curtailed in a number of respects and the validity of these provisions in constitutional terms was considered in detail by Kenny J. in Tthe Central Dublin Development Association v Attorney General (1969) 109 I.L. T R. 69. He rejected the contention that such limitations constituted an arbitrary confiscation of such rights: he said that a provision, in particular circumstances envisaged by legislation, that an interference with one of the rights of property was not to be the subject matter of compensation was not a breach ofArticle =13 and did not fail to defend and vindicate the personal rights ofproperty. He also concluded that it was not an unjust attack upon such rights ".
The Applicant's application for planning permission failed upon the basis of the Planning Acts and if the Applicant thus sustained loss it was by virtue of the operation of those Acts. There is no distinction to be made between the provisions in force at the date of The Central Dublin Development Authority case and those introduced by the Local Government (Planning and Development) Regulations 1994 which would enable me to find the latter unconstitutional. Insofar as Article 40.1 of the Constitution is concerned I can see no unjust discrimination as the planning code is of universal application. The objective of preventing development which might endanger or interfere with the safety of aircraft or the safe or sufficient navigation thereof is clearly a valid and appropriate one based on the common good and therefore an appropriate matter to be balanced against the constitutional rights in relation to private property. Nothing is disclosed in the Affidavits before me to suggest that the planning code is being applied in a manner discriminatory of the Applicant or in any way that is unreasonable within the meaning of the State (Keegai) v The Stardust Victims Compensation Tribunal (1986) I.R. 642. It is appropriate that the planning process should have regard to the requirements of air safety including the provisions of the Air Transport and Navigation Acts 1936 -1988 and the Chicago Convention and in this regard I note the provision of the County Clare Development Plan 1999 which has as one of its objectives –

"To have regard to the development in air traffic safety requirements of Shannon airport when considering applications for permission for development within the vicinity of the airport or of its public safety zones ".
It is, further, not in fact the case that the Applicant's lands are sterilised. He obtained planning permission for the erection of a dwelling on the lands on the 19t" January 1988 and again for the erection of five dwellings on the lands from An Bord Pleaiala on the 22"d November 1993. Upon being refused planning permission by An Bord Plealala by three decisions dated 3 rd May 1996, 13th  November 1997 and 13th January 1998 the Applicant served purchase notices on the planning authority and the planning authority being -.unwilling to comply with the same An Bord Pleanala on each occasion found that the lands were capable of reasonably beneficial use in their existing state.
I therefore refuse the Applicant the relief which he seeks on constitutional grounds.
Accordingly I hold that the Applicant is not entitled to the reliefs which he seeks on any of the grounds upon which he relies.