Barford Holdings Ltd v Fingal County Council

JurisdictionIreland
JudgeMs. Justice Siobhán Phelan
Judgment Date26 April 2022
Neutral Citation[2022] IEHC 329
CourtHigh Court
Docket Number[Record No: 2020/616 JR]

In the Matter of Section 50 of the Planning and Development Act, 2000 (As Amended)

Between:
Barford Holdings Limited
Applicant
and
Fingal County Council
Respondent

[2022] IEHC 329

[Record No: 2020/616 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 26 th day of April, 2022

INTRODUCTION
1

. The applicant challenges a decision of the respondent made on the 20 th of July 2020 and recorded in the ‘Record of Executive Business and Chief Executive's Order’ Order No. PF/0930/20 and Register Reference F14/0109/E1, not to extend the duration of planning permission register reference F14/0109 (hereinafter the “Decision”).

2

. The Decision was consequent upon an application made by the applicant on the 29 th of May 2020, pursuant to s. 42(1)(a)(ii) of the Planning and Development Act, 2000 (as amended) (the “PDA”), seeking to extend the duration of planning permission register reference F14/0109 (the “Planning Permission”) to the 11 th of September 2025.

3

. In accordance with s. 42(1)(ii), the respondent was required to extend the duration of the Planning Permission upon compliance with prescribed conditions including, in material part, if it were “ satisfied” that “ there have been no significant changes in the development objectives in the development plan … for the area of the planning authority since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area” (s. 42 PDA was amended on the 9 th of September 2021 and no longer includes section 42(1)(a)(ii) II).

4

. The core issue for determination is whether the respondent erred in law in its interpretation and application of s. 42(1)(a)(ii)(II) and consequent upon this error of law failed to otherwise determine the application in accordance with law. Specifically, the question which I must determine is whether the respondent is entitled to have regard to the relevant local area plan (being the Baldoyle-Stapolin Local Area Plan for the time being in force- in considering whether or not there have been significant changes in the development objectives of the development plan when determining an application under section 42(1)(ii) of the PDA.

FACTUAL BACKGROUND
5

. The applicant is a company engaged in the business of development. It is the owner of lands at Main Street / Coast Road, Baldoyle, Dublin 13, where the Baldoyle Racecourse was formerly located (the “Lands”).

6

. On the 24 th of February 2011 the applicant was granted planning permission for the development of a residential retirement care facility comprising 150 en suite bedrooms, treatment rooms and ancillary facilities together with a hotel (hereinafter “the Development”).

7

. The grant of permission was the subject of an appeal to An Bord Pleanála (hereinafter “ABP”) and on the 20 th of April 2015, ABP granted the Planning Permission (ABP Ref. No. PL 06 F.243832) (Reg ref 14A/0109). The Development for which Planning Permission was granted was described in the public notices and on large plans and particulars as follows:

“Permission Consequent on the Grant of Planning Permission (Reg. Ref. No. FLA/0328) for (i) part 2, part three-storey retirement home (total gross area of 10,157 m 2) with respite care including 150 No. en-suite bedrooms, 6 no. consultation outpatient treatment rooms, physiotherapist room, reception and main offices and ancillary patient facilities such as common room, quiet rooms, 2 no. libraries, lounges, roof terraces etc; (ii) a part two, part three storey with basement hotel (total gross floor area including basement areas 14,081 m 2), comprising 130 no. Bedroom and 16 no. suites, reception, bar and café, restaurant/dining area, a conference/banquet room (c. 720 m 2), a business centre incl. 8 no. meeting rooms, and a leisure centre (c. 2,500 m 2), including 25 m swimming pool and gymnasium, spa and beauty treatment studios; hotel kitchen, staff areas, cold and dry storage, plant etc. all at basement level; (iii) 303 no. car parking spaces (226 at surface level and 77 at basement level under the hotel only); (iv) Vehicular access at Red Arches Road, landscaping and all ancillary site development works on 5.1 hectares site at the site of the Strands, Stables and Parade Ring of the former Baldoyle Racecourse, Main Street/Coast Road, Dublin 13.”

8

. The Planning Permission was due to expire on the 29 th of July, 2020. At the time that the Planning Permission was granted in 2015, the Final County Development Plan 2011–2017 was in force (hereinafter “the 2017 Development Plan”), which included Specific Local Objective 469 (hereinafter “SLO 469”). The subject lands were zoned High Amenity (hereinafter “HA”). SLO 469 stated:

“Provide for a public park and sensitively designed retirement village subject to screening for assessment under the Habitats Directive.”

9

. When the Planning Permission was granted the Baldoyle-Stapolin LAP 2013 (hereinafter “the 2013 LAP”) was in force for the area where the Lands were located. It included several references to the proposed retirement village/hotel development (more fully set out at para. 13 below) and referred to “Map Objective 4” as follows:

Provide for a public park and sensitively designed retirement village subject to screening for assessment under the Habitats Directive as per Local Objective 469 in the 2011–2017 Fingal Development Plan or as may be revised in any future Development Plan.”

10

. In accordance with the provisions of ss. 40(3), 251 and 251A of the PDA the Planning Permission was due to expire on the 29 th of July, 2020.

11

. During the currency of the Planning Permission, the Fingal Development Plan 2017 – 23 (the “2023 Development Plan”) was made by the elected members on the 16 th of February 2017 and came into effect four weeks later, on the 16 th of March 2017. While the zoning for the subject lands remained unchanged, SLO 469 was no longer included in the 2023 Development Plan, although no record has been produced to evidence any discussion or debate in this regard. Objective Z02 of the 2023 Development Plan states as an objective “ Prepare and implement Local Area Plans where required.” The 2023 Development Plan further provided a number of special objectives for Baldoyle, where the Lands are located, including in relevant part ‘ Objective 3 Baldoyle’.Objective 3 Baldoyle’ states:

Prepare and/or implement a Local Area Plan for lands at Baldoyle/Stapolin to provide for the strategic development of the area as a planned sustainable mixed use residential development subject to the delivery of the necessary infrastructure. (Refer to Map Sheet No. 10, LAP 10.A)”

12

. During the course of the hearing, I requested the parties to identify which map was referred to as Map Sheet No. 10, LAP 10.A. While Map Sheet No. 10 shows the area in which the subject site is located, LAP 10.A appears to refer to a portion of the lands in the area which is separate from and away from the subject lands.

13

. On the 12 th of March 2018, the Baldoyle-Stapolin LAP 2013 was extended for a further period of 5 years to the 11 th of May 2023 by a resolution of the elected members of the respondent (the “2013 LAP as extended”). The resolution of the elected members of the respondent extending the 2013 LAP was based on advice, in accordance with statutory requirements, to the elected members which included confirmation that it was the chief executive of the respondent's opinion that the 2013 LAP was consistent with the objectives and core strategy for the 2023 Development Plan.

14

. References in the 2013 LAP (as now extended to May, 2023) to local objectives include:

  • a) At p. i reference to “local objectives” applying appears as follows:

    “Within the Development Plan, the Baldoyle-Stapolin Local Area Plan comprises land with the following zoning objectives:

    • c. 41 hectares of land zoned Objective RA – Provide for new residential communities in accordance with approved local area plans and subject to the provision of the necessary social and physical infrastructure. This area, known as The Coast, includes the existing residential communities of Myrtle and Red Arches.

    • c. 81 hectares of land zoned Objective HA – Protect and enhance high amenity areas.

    “The area zoned for residential development in the Baldoyle-Stapolin Plan lands also contains a number of Local Objectives within its boundaries.”

  • b) At p. 03 further reference is made to the zoning objectives as above but with specific reference to specific local area objectives within its boundaries including: Objective 469 which is set out in the following terms:

    “provide for a public park and sensitively designed retirement village subject to screening for assessment under the habitats directive.”

  • c) The LAP Map includes Map Objective 4 (p. v) by identifying on the map the area concerned and stating in the legend on the face of the map as follows:

    “provide for public park and are 2011–2017 Fingal Development Plan or as may be revised in any future Development Plan.”

  • d) At p. 08 under the heading “ Retirement Village Site” the LAP states:

    “Local Objective 469 of the Fingal Development Plan 2011–2017 provides for the development of a public park and sensitively designed retirement village, subject to screening for assessment under the Habitats Directive, on a c.5 ha site at the southeastern corner of the plan lands adjoining the Coast Road and the established built up area of Baldoyle Village. This was the location of the stands, stables and parade ring of the former Baldoyle Racecourse and the eastern boundary of the site is marked by a stone, concrete and brick wall that contains the original brick ‘red arch’. There is an extant outline planning permission on these lands for the construction of a retirement home hotel and associated car parking...

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    • 20 February 2024
    ...that the applicable and correct CDP was repeatedly referenced up to that point. 46 . In Barford Holdings Limited v Fingal County Council [2022] IEHC 329 (para. 95 et seq) a challenge based on a reference to the incorrect version (years) of a Development Plan was rejected where the error did......

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