Ashbourne Holdings: Interpretation and Implications for Planning Gain
| Author | David O'Connor |
| Position | Senior Sophister Law, Trinity College, Dublin |
| Pages | 48-71 |
ASHBOURNE
HOLDINGS:
INTERPRETATION
AND
IMPLICATIONS
FOR
PLANNING
GAIN
DAVID
O'CONNOR*
In
the
recent decision
of
Ashbourne Holdings
Ltd.
v.
An
Bord
Pleanila,'
Hardiman
J.,
on
behalf
of
the
Supreme
Court,
delivered
a
landmark
judgment
on
the power
of
planning
authorities
to
impose
conditions
on
grants
of
planning
permission.
Hardiman
J.
struck
down
a
condition
imposed
by
An
Bord
Pleanila
requiring public
access
to
the
Old
Head
of
Kinsale,
because
it
did
not
fall
within
the powers given
to
planning
authorities
under
s.
26
of
1963.
Hardiman
J.
went
on
to
express strong
views
on
the
propriety
of
conditions
seeking planning
gain,
which
is
a
gain
or
benefit
provided
by
the
developer.
The
Court
disapproved
of
planning
gain
on
the
basis
that
it
would
make
the
planning
process uncertain
and
would
favour
wealthier
applicants.
This article
argues
that
Hardiman
J.'s
interpretation
of
the
powers given
to
planning
authorities under
s.
26
(now
s.
34
of
the Planning
2000)2
was
too
restrictive
and,
further,
that
the
view
taken
of
planning
gain
in
the
judgment
was also
overly
restrictive
and fails
to take
into
account
the
complexity
of
the
issue.
Finally,
it
will be
argued
that both
of
these matters could
be
addressed
by
the introduction
of
a
test
based
on the
causal
relationship between
the
condition
imposed
and
the
disbenefit
it
seeks
to
remedy.
*
Senior
Sophister
Law,
Trinity
College,
Dublin.
I
would
like
to
thank
Ms. Rita
Kilroy
for
her
helpful
comments
on
an
earlier
draft
of
this article.
Any errors
or
omissions
are
entirely
my
own.
'
[2003]
2
ILRM
446
(hereinafter
Ashbourne
Holdings).
2
Hereinafter
'the
Act'.
Section
26
of
the
1963,
is
the
equivalent
of
s.
34
of
so
in
the
interests
of
clarity reference
will
be
made
to
s.
34
of
2000
Act
in
the following discussion.
©D
2005
David
O'Connor
and
Dublin
University Law Society
A
Critical
Analysis
ofAshbourne
Holdings
Facts
of
the
Case
The
condition
in
dispute
in
this
case
required
the applicant
to
allow
public
access to
the
lighthouse and
cliffs
of
the
very
scenic
Old
Head
of
Kinsale.
While
the
headland
had always
been
in
private
ownership,
hundreds
of
people
used
to
visit
it
without opposition
from
the
previous
owners.
Planning
permission was
granted
for
a
clubhouse
adjoining
a
golf
course
which
the
applicants had
constructed
on
the headland (the
golf
course
itself
was exempted
development
at
the
time
and
did not
need
planning
permission).
Once
the
clubhouse
had
been
built,
the
county council
felt
that
certain features
of
it
were
not
in
accordance
with
the
permission
granted,
and
insisted
that
the
applicant seek retention planning
permission.
This
permission
was
granted
subject to the
same
conditions
as
previously.
However,
this time the
applicant
appealed
the
conditions
to
An
Bord
Pleanila.
3
The
Board
granted
permission
subject
to
similar conditions,
and
the
applicant brought
judicial
review
proceedings claiming
that
the
conditions
were
ultra
vires
the
powers
of
the
planning
authority.
In
the
High Court,
Kearns
J.
held
the
conditions
were
invalid on
the
basis
that
they were
unreasonable.
This
decision
was
appealed
to
the
Supreme
Court,
where the
Court ruled that
the conditions were
outside
the
power
of
the
planning
authority.
The
Court
also
expressed
its
disapproval
of
the
concept
of
planning
gain
being
sought
by
planning authorities
in
granting
planning permission.
The Power
to
Impose
Conditions
Planning authorities
have
a
general
power
to
impose
conditions
on
a
grant
of
planning
permission.5
In
deciding whether
to
impose
such
a
condition
they
are
restricted
to
considering the "proper
planning
and
sustainable
development"
of
the
area.
6
They
must
also
have
regard to certain
considerations
set
out
in
the
Act,
such
as
the
development
plan
and
a
number
of
listed
conditions that the
Act
allows
them
to
impose.
These
3
See
Macken,
"Planning
Gain
in
Ireland
and
the
Old
Head
of
Kinsale"
(2004)
Bar
Rev 217,
at
222. Macken
makes
the
point
that
it
was
only
because the county council
insisted that
the
company
apply for
retention
planning permission
that
it
was given
the
opportunity
to re-open
the
matter
and
appeal the
condition
imposed.
Had
the
original
permission
granted
been
allowed
stand
it
would appear
that
the
condition would
have been
binding.
4
[20021
1
ILRM
321.
5
s.
34(1).
6
2000,
s.
34(2)(a).
2005]
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