Bernadine McCabe v Irish Rail (Coras Iompair Éireann éireann and Iarnród Éireann éireann)

JurisdictionIreland
JudgeMr. Justice Herbert
Judgment Date10 November 2006
Neutral Citation[2006] IEHC 356
Docket Number[2005 No. 79 MCA]
CourtHigh Court
Date10 November 2006

[2006] IEHC 356

THE HIGH COURT

[No. 79 MCA/2005]
MCCABE v CORAS IOPMAIR EIREANN (CIE) & IARNROD EIREANN (IRISH RAIL)
IN THE MATTER OF SECTION 160 OF THE PLANNING AND
DEVELOPMENT ACT, 2000

BETWEEN

BERNADINE McCABE
APPLICANT

AND

CORAS IOMPAIR ÉIREANN AND IARNRÓD ÉIREANN — IRISH RAIL
RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S4(1)(h)

PLANNING & DEVELOPMENT REGULATIONS 2001 SCHED 2 PART I CLASS 23

ROADS ACT 1993 S75

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S2(1)

PLANNING & DEVELOPMENT ACT 2000 S160(1)(b)

PLANNING & DEVELOPMENT ACT 2000 S160(2)

PLANNING & DEVELOPMENT ACT 2000 S32

PLANNING & DEVELOPMENT ACT 2000 S4(1)(h)

DUBLIN CORPORATION v LOWE & SIGNWAYS HOLDINGS LTD 2004 4 IR 259

CAIRNDUFF v O'CONNELL 1986 IR 73 1986 ILRM 465 1986 1 209

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

WESTPORT URBAN DISTRICT COUNCIL (UDC) v GOLDEN & ORS 2002 1 ILRM 439 2000 18 6742

BOROUGHS DAY v BRISTOL CITY COUNCIL UNREP QBD 18.1.1996

DUBLIN CORPORATION v BENTHAM 1993 2 IR 58

ESAT DIGIFONE LTD v SOUTH DUBLIN CO COUNCIL 2002 3 IR 585

O'KEEFE & SIMINGTON IRISH STONE BRIDGES HISTORY & HERITAGE 1ED 1991 198-199

STEINMAN & WATSON BRIDGES & THEIR BUILDERS 1957 393

COX & GOULD IRELAND'S BRIDGES 2003

PLANNING AND ENVIRONMENTAL LAW:

Planning permission

Development - Exempted development - Structure - Alteration - Repairs - Whether alteration to structure exempted development - Whether external appearance materially affected by alteration - Cairnduff v O'Connell [1986] 1 IR 73 applied -Planning and Development Act 2000 (No 30),ss 4(1)(h) and 160 - Claim dismissed(2005/79MCA - Herbert J - 10/11/2006)[2006] IEHC 356 McCabe v Coras Iompair Éireann

Act 2000

The applicant sought an order pursuant to s. 160 of the Planning and Development Act 2000 directing the

respondent to restore a railway bridge to its condition prior to what was claimed to have been unauthorised

development on the bridge. The issue arose as to whether of not the development was exempted development

pursuant to s.4(1)(h) of the Act of 2000. The respondents contended that the works were solely carried out for the

maintenance and improvement of the bridge.

Held by Herbert J. that the renewal and reconstruction of parts of the bridge was covered by s. 4(1)(h) of the Act of 2000

as the overall dimensions of the bridge and its essential and immediate visual impact remained the same and was not

such a total alteration as to be outside the scope of s. 4(1)(h) of the Act of 2000.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Herbert delivered of 10th day of November, 2006

2

The Applicant seeks an Order of this court, pursuant to the provisions of s. 160 of the Planning and Development Act, 2000, directing the Respondent to restore a 161 years old railway under-bridge at Gingerstown, Caragh, Naas, Co. Kildare, to its condition prior to what is claimed to have been unauthorised development carried out by the Respondent at the bridge on the 16th, 17th and 18th days of March 2002.

3

On the 13th February, 2002, the Applicant wrote to the Respondent asserting that in her belief the intended works of which she had just become aware required a grant of planning permission and, advising the Respondents that unless they could demonstrate that they did not require planning permission for the intended works, she would seek injunctive relief from the courts if the works were to proceed. The letter was copied to 26 other parties: the Planning Section and the Roads Section of Kildare County Council, the Garda Authorities at Naas, the Secretary of the Department of the Environment and Local Government, the Secretary of An Taisce, Members of Dáil Éireann, Local Government Councillors and the Editor of the Leinster Leader Newspaper.

4

The Applicant was not being merely officious or acting from some disinterested sense of concern for the observance of the Planning Laws. As she explained in this letter, she and her family, since about 1995 have been inconvenienced and affected by the increased use of the regional public road straddled by this bridge on the main railway lines between Dublin and Cork, and also serving Waterford, Limerick, Galway, Kilkenny, Killarney, Tralee and other towns. In particular, she instanced the increasing use of this road by heavy goods vehicles, especially very large refuse trucks of abnormal height. The Applicant stated that she resided approximately 2.5 miles from this railway bridge, which she accepted was being repeatedly struck by these vehicles.

5

Receipt of this letter was acknowledged by the Planning Section of Kildare County Council by a letter dated 19th February, 2002. By letter dated 1st March, 2002 the Respondent replied that what Iarnród Éireann proposed to do was to reconstruct the bridge in materials similar to those of which it was constructed but eliminating the arch and, providing an orthogonal section through the bridge to allow high vehicles to pass in safety, without materially affecting the character, design and external appearance of the bridge. The writer informed the Applicant that following receipt of her letter the Respondent had sought and obtained the opinion of Senior Counsel who had advised that the proposed works were "exempted development" by reason of the provisions of s. 4(1)(h) of the Planning Development Act, 2000and, additionally or alternatively, Class 23 of Part I of the Second Schedule of Planning and Development Regulations, 2001. The writer stated that the works were urgently required to ensure the safety of the public travelling both in trains and on the road and he enclosed in the letter a plan and elevation of the proposed works.

6

On 27th February, 2003 a Notice pursuant to the provisions of s. 75 of the Roads Act, 1993was published by the Roads Section of Kildare County Council in the Irish Independent newspaper informing the public of the temporary closure of the R 409 road between Halverstown Cross Roads and Capagh, from 00.01 hours on Saturday 16th March, 2002 to 16.00 hours on Tuesday 19th March, 2002, for the purpose of renewing under-bridge number 409 at Gingerstown, Co. Kildare. By letter dated 4th March, 2002 the Applicant lodged her objection to the closure and to these works. The Applicant stated that it should be the duty of the Planning Authority to, "endeavour to preserve our heritage items not destroy them": that the bridge could be reinforced without defacing it, and could be protected from future damage by a traffic calming system which would permit only one heavy goods vehicle at a time to pass under the bridge. By letter dated 7th March, 2002 Mr. Michael O'Neill, Solicitor, acting on behalf of the Applicant, wrote to the Solicitor for the Respondents stating that the Applicant did not accept that the proposed development was "exempted development" within the meaning of s. 4(1)(h) of the Act of 2000 or Class 23 of Part I of the 2001 Regulations.

7

Further letters dated 7th March, 2002, 8th March, 2002 and 12th March, 2002 were exchanged between Mr. O'Neill and the Respondent. By letter dated 8th March, 2002 Kildare County Council advised the Applicant that notice of a decision by Kildare County Council to grant permission for the temporary closure of the relevant section of the R 409 road would be published on Saturday 9th March, 2002 in the Irish Independent Newspaper. This letter stated:-

"Please note that the appearance of this Notice gives permission for the temporary closing of the road only. It does not imply that Iarnród Éireann have been given permission by the Council to carry out the works until such time as it has been established, beyond doubt, that these works are exempt from permission under the Planning and Development Acts."

8

On 11th March, 2002, s. 5 of the Planning and Development Act, 2000became operational. By letter dated 11th March, 2002, the Applicant sought a declaration from Kildare County Council, as the relevant Planning Authority, as to whether or not the development proposed by the Respondent was "exempted development" within the meaning of that Act. By Order made on the 13th March, 2002 it was declared that the proposed works were not "exempted development". This Declaration was forwarded by Mr. O'Neill to the Solicitor for the Respondent by letter dated 15th March 2002, with a request that the Respondent confirm that they would not proceed with the proposed development without first obtaining a review of the Declaration by An Bord Pleanála or applying for planning permission. By letter dated 15th March, 2002 the Solicitor for the Respondent protested to the Planning Section of Kildare County Council, complaining of what was described as the unfair, unconstitutional, high-handed and unlawful manner in which it had issued the Declaration:-

"In a manner that affects Iarnród Éireann without giving us an opportunity of making our views known".

9

It was accepted by both parties to this application to this court, that the works were carried out by the Respondent on the 16th, 17th and 18th of March, 2002, without obtaining a grant of planning permission or without seeking a review by An Bord Pleanála of the Declaration. It was also accepted that the railway bridge in question is not a "protected structure" as defined by s. 2(1) of the Planning and Development Act, 2000. In judicial review proceedings entitled, "Córas Iompair Éireann and Iarnród Éireann (Irish Rail), Applicants, the County Council of the County of Kildare, Respondent and Bernadine McCabe Notice Party," this court (Mr. Justice Murphy), by Order made on the 21st October, 2004, granted the Respondent an Order of Certiorari quashing the Declaration notified to the Applicant on the 15th March, 2002, on the grounds that the decision was a quasi-judicial decision and not an...

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2 cases
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    ...might determine how a building has lost its original identity in planning terms. Herbert J. in McCabe v. Córas Iompair Éireann & Anor. [2007] 2 I.R. 392, considered precisely this question in regard to works carried out by the respondents to a railway bridge which it claimed had been necess......
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