Aughey Enterprises Limited & Anor v The County Council of the County of Monaghan, [2005] IEHC 191 (2005)

Docket Number:2004 717JR
Judge:Macken J.
 
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2005 IEHC 191THE HIGH COURTJUDICIAL REVIEW [Record No. 2004 717JR]

BETWEEN AUGHEY ENTERPRISES LIMITED AND BARRY AUGHEYAPPLICANTS AND

THE COUNTY COUNCIL OF THE COUNTY OF MONAGHANRESPONDENT JUDGMENT delivered by Macken J. on the 15th day of June, 2005

This is an application for leave to issue judicial review proceedings brought pursuant to s. 50 of the Planning and Development Act, 2000 as amended by the Planning and Development (Amendment) Act, 2002 and pursuant to order 84 Rule 20(7)(a) of the Rules of the Superior Courts.

Insofar as the relief sought pursuant to s. 50 is concerned this is in respect of the following:-

  1. An order of certiorari quashing the respondent's decision made under register reference number 04/8025, notice of which was sent to the applicants on 17th June, 2004 in respect of certain amendments to the N2 Monaghan Town bypass in the townlands of Tullyherim and Annahagh, Co. Monaghan.

  2. An order of mandamus directing the respondent to consider and determine in accordance with law any amendments to the said N2 Monaghan Town bypass so as to provide for a fifth spur from the proposes N2/N12 (Armagh Road) Junction to the applicants' land.

  3. A declaration that the said decision made under register reference number 04/8025 in respect of certain amendments to the N2 Monaghan Town bypass in the aforesaid lands is a nullity.

  4. Damages.

  5. An order pursuant to Order 84, staying the implementation of the said decision until the determination of the within application for judicial review.

  6. An order for discovery of all documents which are or have been in the possession, power or procurement of the respondent and which are relevant to the issues in these proceedings.

  7. Further ancillary relief was also sought.

    The originating notice of motion was accompanied, as necessary, by the statement required to ground such an application for judicial review.

    As to the grounds upon which the relief is sought, these are divided between the several reliefs as follows:-

    (A) As to certiorari

    (1) The respondent, as the planning authority for the functional area of the council of the county of Monaghan erred in law by deciding, under the aforesaid register reference number, to amend the N2 Monaghan Town bypass in the town lands of Tullyherim and Annahagh so as excise the fifth spur at the proposed N2/N12 (Armagh Road) Junction.

    (2) The respondent erred in law by failing to honour a specific representation given by its servants or agents to the applicants on or about 22nd August, 2001, to the effect that the proposed bypass and in particular the proposed N2/N12 (Armagh Road) Junction would comprise a fifth spur from the material roundabout to the lands owned by the second named applicant.

    (3) The respondent erred in law in making a decision under s. 179 of the Planning and Development Act, 2000 in relation to the proposed development to amend the Monaghan Town bypass scheme in a manner which failed to secure for the applicants the benefit of the retention of the fifth spur aforesaid.

    (4) The respondent acted in breach of the rules of natural and constitutional justice and procedural fairness in failing to specifically notify the applicants of its proposal to excise the fifth spur from the proposed N2/N12 (Armagh Road) Junction to the applicants' lands.

    (5) The respondent in the circumstances acted unreasonably, irrationally and arbitrarily and in particular in deciding that "the current proposal does not amend the details for the roundabout located at the junction of the N2 and N12 national primary routes".

    (6) The decision of the respondent to improve the proposed development amending the aforesaid town bypass scheme made under register reference number 04/8025 is accordingly ultra vires, irrational and a nullity. (B) As to mandamus (1) In its capacity as a planning authority and having given a lawful assurance to the applicants that the proposed N2/N12 Junction would comprise a fifth spur to the lands of the applicants, the respondent is required to consider a proposed development amending the aforesaid Monaghan Town bypass scheme in accordance with the said lawful assurances.

    (2) The respondent purported to make a decision under s. 179 of the Planning and Development Act, 2000 to approve proposed development amending the aforesaid Monaghan Town bypass scheme. Notice of the said decision was sent to the applicants on 17th June, 2004. By reason of the grounds particularised under the aforesaid certiorari claim the said decision is ultra vires and void.

    (3) In the circumstances the applicant is entitled to an order directing the respondent to consider and determine the approval of the proposed development amending the Monaghan Town bypass scheme in accordance with law, and in particular to consider and determine the approval of the proposed development amending the Monaghan Town bypass scheme in accordance with law, and in particular that the applicant is entitled to an order directing the respondent to consider and determine the approval of the said development amending the Monaghan Town bypass scheme in accordance with and in order to give effect to the lawful assurances given by the respondent to the applicants that the proposed N2/N12 (Armagh Road) Junction would comprise a fifth spur to the lands of the applicants. (C)As to declarations and a stay (1) The grounds in respect of which the declaratory relief and the stay is sought

    are those grounds which are also indicated in respect of the certiorari relief.

    (D)Damages (1) Insofar as damages are concerned the applicants ground their claim for damages on the basis that the respondent has deprived the applicants from directly accessing the proposed Monaghan Town bypass and in the circumstances the service station operated by the first named applicant is precluded from having direct access to the realigned N2 national primary route.

    (2) Further without such access to the realigned N2 national primary route, commercial and retail development proposals envisaged for the second named applicants' lands cannot access the proposed Monaghan Town bypass.

    (3) In consequence of these the applicants have each sustained loss, damage, inconvenience and expense.

    FactsExchanges of detailed affidavits took place. Essentially, in this application, the applicant says that a process commenced in the year 2000 when Monaghan County Council initiated the public planning element of a proposed Monaghan Town bypass. This was published in the usual way and the plans and particulars were made available for inspection, also in the usual way. The applicants through the second named applicant who swore the affidavits in these proceedings, says that it became clear that Monaghan County Council proposed to construct a new roundabout at the junction of the N2/N12 (Armagh Road). This proposed junction was in the vicinity of the lands owned by the applicants and clearly showed five spurs, including a spur leading directly to the lands owned by the second named applicant and adjacent to the lands owned by the first named applicant. In fact these lands abut each other.

    Subsequently the applicants received correspondence from a consultant to the respondent enclosing maps which showed the applicants' property and the proposed "land take", which in turn indicated that a total land take of 0.05 acres would come from the first named applicant's lands and that another drawing indicated a proposed land take of 0.296 acres would come from the second named applicant's lands.

    In April, 2001, the respondent made what is called the "Monaghan County Council Compulsory Purchase (Roads) Order No. 12201, realignment of N2 national primary route from Coolshannagh to Corlat", which Order permitted the respondent to acquire the aforementioned lands from the applicants. Mr. Aughey says that after the making of the Compulsory Purchase Order he objected to this on behalf of the first named applicant, and that prior to the oral hearing of the objections to the making of the Compulsory Purchase Order a meeting was held on 22nd August, 2001, at the request of the respondent. This meeting was attended by him and by a Mr. Burke, an engineer acting on behalf of the applicants, and by a Mr. Hanly and a Mr. Johnson on behalf of the respondent, together with representatives of a company called M.C. O'Sullivan and Co. Limited.

    Mr. Aughey averred that the original objection concerning the take for the spur and the proposed roundabout was based on the problem that the respondent was seeking to construct a road directly through the centre of his lands with the effect that the lands in question could not be developed. He had come into possession of a drawing which showed the proposed road running directly through the middle of his lands, and this was exhibited. He had discovered that the service station operated by him and currently located on the existing N2 road would have no access to the proposed N2 bypass and would, in consequence, suffer a significant downturn in business.

    At the meeting while there is a dispute as to what occurred Mr. Aughey says that he expressed the concerns of both parties as the plans proposed would affect both of them. He says he was informed at that meeting that no road would go through his lands, but that provision would be made for the fifth spur to be built when the roundabout was being built and that the road, when constructed, would skirt around the lands.

    Mr. Aughey said that this was an extremely important matter because the arrangement proposed would actually improve the first applicants' access and would enhance the chances of his developing his own lands. His intention was to move the site of the service station from its existing lands, being his lands, to the adjoining lands owned by the first named...

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