Ashbourne Holdings Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 10 March 2003
• Neutral Citation: [2003] IESC 18
• Court: Supreme Court
• Docket Number: [S.C. No. 97 of 2002]
• Date: 10 March 2003

ASHBOURNE HOLDINGS LTD v. BORD PLEANALA & CORK CO COUNCIL

BETWEEN:

ASHBOURNE HOLDINGS LIMITED

Applicant/Respondent

and

AN BORD PLEANÁLA

Respondent/Appellant

and

THE COUNTY COUNCIL OF THE COUNTY OF CORK

Respondent

[2003] IESC 18

Keane C.J.

Murray J.

McGuinness J.

Hardiman J.

Fennnelly J.

97/02

THE SUPREME COURT

Synopsis:

PLANNING AND ENVIRONMENTAL

Permission

Judicial review - Conditions - Whether conditions ultra vires the Board - Whether conditions unreasonable - Whether applicant estopped from raising vires issue, per rem judicatam - Local Government (Planning and Development) Act, 1963, section 26 (97/2002 - Supreme Court - 10/03/2003)

Ashbourne Holdings Ltd v An Bord Pleanala - [2003] 2 IR 114 - [2003] 2 ILRM 446

The applicant developed lands known as the Old Head of Kinsale by laying out a golf course. This development was an exempt development. The applicant was granted planning permission, subject to conditions, for development of a clubhouse on adjoining grounds. The applicant sought judicial review of these conditions on grounds inter alia that the conditions were ultra vires and unreasonable. The conditions related to the question of public access to the Old Head of Kinsale. The High Court quashed the conditions.

Held by the Supreme Court (Hardiman J. Nem. Diss.) in dismissing the appeal that the development on which the disputed conditions would have effect was not the clubhouse but the earlier development of the golf course. There was no power to impose a condition which would have effect only on the exempt development of the adjoining lands and which was incapable of any advantageous effect for the purposes of or in connection with the development to which the permission related.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

FPH PROPERTIES, STATE V BORD PLEANALA 1987 IR 698

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S47

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S48

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S49(1)

OCCUPIERS LIABILITY ACT 1995

KILLINEY & BALLYBRACK LTD V MIN FOR LOCAL GOVT 1978 112 ILTR 9 1978 ILRM 78

NEWBURY COUNCIL V ENVIRONMENT SECRETARY 1981 AC 578

TOWN & COUNTRY PLANNING ACT 1947 (UK)

TOWN & COUNTRY PLANNING ACT 1971 (UK)

HALL & CO LTD V SHOREHAM-BY-SEA URBAN DISTRICT COUNCIL & ANOR 1964 1 AER 1

HIGHWAYS ACT 1959

WESTMINSTER BANK LTD V MIN HOUSING 1971 AC 508

TOWN & COUNTRY PLANNING ACT 1962 S220

ELLIS & RUISLIP NORTHWOOD UDC, RE 1920 1 KP 343

ATHLONE WOOLLEN MILLS CO LTD V ATHLONE URBAN DISTRICT COUNCIL 1950 IR 1

KENNY & HUSSEY, STATE V AN BORD PLEANALA UNREP CARROLL 23.2.1984 1984/4/1372

THRASYVOULOU V SECRETARY OF STATE FOR THE ENVIRONMENT & ORS 1990 2 AC 273

CITY OF BRADFORD METROPOLITAN COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 1986 JPL 598

GREENDALE BUILDING CO V DUBLIN CO COUNCIL 1977 IR 256

SCANNELL ENVIRONMENTAL & PLANNING LAW IN IRELAND 1995 205

R V BOWMAN 1898 1 QB 663

TOWN & COUNTRY PLANNING ACT 1990 S106

TESCO STORES LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1995 2 AER 636

1 Mr. Justice Hardiman delivered on the 10th day of March, 2003 .

2 The applicant/respondent (hereafter "Ashbourne") is the owner of lands comprised in Folio 5759 of the Register of Freeholders, Co. Cork. These lands are commonly known as the Old Head of Kinsale. Ashbourne has developed the lands by laying out a golf course on them. It is accepted by the parties that this development was, at all material times, an exempt development and did not require planning permission.

3 By a decision of An Bord Pleanála (hereafter "the Board") of the 6 ^th May, 1993 Ashbourne was granted planning permission subject to conditions for a development. This comprised the erection of a golf clubhouse and ancillary equipment building together with various necessary site works, car park, roadways and drainage, on a portion of the lands. Ashbourne erected the clubhouse and carried out other works on the lands but these were not carried out, in certain respects, in accordance with the planning permission and certain conditions were not complied with. Accordingly, Ashbourne applied to the County Council for retention and completion of the golf clubhouse, car park and access road, and for retention of the machinery shed, and retention and modification of the entrance. Permission was granted by the County Council, again subject to certain conditions. On this occasion Ashbourne appealed against some of these conditions to the Board. The result of the appeal was that the application for retention was granted subject, inter alia, to the conditions challenged in these proceedings. Eight conditions were imposed by the Board in its decision dated the 31 ^st October, 1997.

4 In substance, the challenged proceedings relate to the question of public access to the Old Head of Kinsale. They are expressed as follows:-

5 2 "(1) Access shall be provided at all times during daylight hours for the public to the lighthouse and the area marginal to the neck and the northern rim of the headland to the old lighthouse.

6 (2) Access to the cliff face and cliff edges for interest groups shall be made available in accordance with details to be submitted to the planning authority for agreement, within three months of the date of this permission. In default of agreement this matter shall be determined by An Bord Pleanála.

7 Reason: In the interest of amenity and orderly development and having regard to the planning history of the site.

8 (3) Within three months of the date of this permission the following details shall be submitted to the planning authority for agreement:

9 (a) –

10 (b) design, construction and finished detail of the gravel path between the De Courcey Castle and the old lighthouse compound and its specific location.

11 (4) Any charge for access by the public to the lands south of the new gateway shall not exceed the reasonable cost of insurance and administration of entrance control. This figure shall be agreed with the planning authority within two months of the date of this order and shall not be increased save for the consent of the planning authority".

12 By order of the High Court (McCracken J.) of the 23 ^rd March, 2000 Ashbourne were granted leave to seek judicial review of these conditions. McCracken J. delivered a written judgment of that date setting forth his reasons for granting of leave. On the 21 ^stMarch, 2001 the High Court (Kearns J.) decided to quash the conditions the subject of this appeal.

13 By a further order, the High Court certified, pursuant to s.82(3B)(b) of the Local Government (Planning and Development) Act, 1992, as amended, that the Board have leave to appeal to the Supreme Court on three specified points of law. More general issues were, however, argued on the hearing of the appeal.

Issues on Appeal

14 On the hearing of this appeal, the issues raised fell into two broad categories. The first of these related to the validity in principle of conditions directed at ensuring or regulating public access to the Old Head of Kinsale lands, adjacent to the lands for which permission or retention was sought, and being in the same ownership. The second category related to res judicata and to whether the conduct of Ashbourne in the planning history of the lands disentitled it to relief to which it might otherwise be entitled, or allowed the Court in its discretion to refuse such relief. These are all estoppel or preclusion issues.

Conditions relating to public access

15 These conditions were challenged upon a number of grounds. The most radical of these was that the conditions in question were simply ultra vires the Board. It was also submitted that the said conditions, or some of them, were void for vagueness or uncertainty or were unreasonable in the legal sense. Counsel for Ashbourne, however, described the question of vires as "the first and last question" on this aspect and it is convenient to deal with this first.

16 There are a number of factual matters relevant to the viresquestion which are indisputable. Firstly, prior to the development of the golf course there was no public access as of right to any part of the Old Head of Kinsale. This was found to be so in an earlier decision of the Board and was not challenged in the present proceedings.

17 Secondly, the Board was not aware of any previous case in which a condition of public access was attached to a grant of planning or retention permission in respect of adjoining lands.

18 Thirdly (though this mainly relates to the disentitlement/discretion point relied on by the Board in the alternative) it is indisputable that Ashbourne had indicated, prior to the first application for permission, a willingness to accept and facilitate a measure of public access. Furthermore, it had not appealed conditions in that regard contained in the original planning permission.

19 Fourthly, though there is statutory provision, considered below, for the creation by order of the planning authority of public rights of way over lands, this had not been availed of in the present case. If a public right of way were thus created, the planning authority would be responsible for its maintenance. The Board, however, denied that the right of public access to which the disputed conditions relate is in the nature of a right of way.

Power to impose conditions

20 The power to impose conditions on a planning permission arises under s.26 of the Local Government (Planning and Development) Act, 1963. This confers a power on a planning authority to grant permission subject to or without conditions, or to refuse permission. It also provides that in dealing with any application "... the planning authority shall be restricted to...