Boland v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 09 December 1994
• Neutral Citation: 1994 WJSC-HC 2149
• Docket Number: No. 352 J.R./1994
• Court: High Court
• Date: 09 December 1994

1994 WJSC-HC 2149

THE HIGH COURT

No. 352 J.R./1994

BOLAND v. BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

RAYMOND BOLAND

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

THE MINISTER FOR THE MARINE AND OTHERS

NOTICE PARTIES

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1993

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1993 S4

DUN LAOGHAIRE HARBOUR ACT 1994 S2

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(4)

KELEGHAN & ORS V CORBY & DUBLIN CORPORATION 1977 111 ILTR 145

REPORT OF THE TRIBUNAL OF ENQUIRY ON THE FIRE AT THE STARDUST 14.2.81

HOULIHAN V BORD PLEANALA UNREP MURPHY 4.10.93 1993/12/3737

ROADS ACT 1993

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4

FOXROCK CONSTRUCTION CO LTD, STATE V DUBLIN CO COUNCIL UNREP FINLAY 5.2.80 1983/6/1663

MIXNAM PROPERTIES LTD V CHERTSEY URBAN DISTRICT COUNCIL 1964 1 QB 214

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S25(2)(h)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(7)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

Synopsis:

PLANNING

Permission

Terms - Precision - Absence - Appeal - Planning board - Powers - Delegation - Conditions attached to planning permission - Unresolved matters to be agreed with planning authority - Valid exercise of powers of planning board - Rules of the Superior Courts, 1986, order 84, r. 18 - Local Government (Planning and Development) Act, 1976, s. 14 - (1994/352 JR - Keane J. - 9/12/94) - [1996] 3 IR 435

|Boland v. An Bord Pleanala|

MINISTER OF STATE

Powers

Exercise - Statute - Terms - Compliance - Obligation - Exclusion - Minister excluded from necessity to comply with planning code - Development by Minister - Validity of development challenged - Development submitted to planning procedure with consent of Minister notwithstanding exclusion - (1994/352 JR - Keane J. - 9/12/94) - [1996] 3 IR 435

|Boland v. An Bord Pleanala|

1 JUDGMENT delivered the 9th day of December, 1994 by Keane J.

2 On the 20th July last, the Respondent (hereafter "the Board") decided to grant permission to the first named Notice Party (hereafter "the Minister") for a development consisting of the extension and refurbishment of the existing ferry terminal at St. Michael's Wharf, Dun Laoghaire Harbour, intended to accommodate a new high speed ferry service as well as the existing ferry services.

3 The proposed development envisages the reclamation from the sea of approximately 1.5 hectares to the west of the existing pier, the renewal and extension of traffic marshalling are as to a total of 3.2 hectares, the construction of a new two storey terminal building and the refurbishing of the existing two storey St. Michael's terminal building.

4 The permission granted was subject to a number of conditions, five of which are material to the present application. The conditions in question, and the reasons given by the Board for their imposition, are as follows:-

5 2 "2. Revised details of the disembarkation vehicle standage area and methods of control of throughput of vehicles, so as to regulate traffic movements on Harbour Road, shall be submitted to and agreed with the planning authority. To this end, the details shall include proposals to provide for merging of the initial six lanes to the final exit from the standage area on to Harbour Road.

Reason:

6 To ensure orderly traffic management in the interest of traffic safety and to avoid traffic congestion."

"3. (The Minister) shall pay a sum of money to Dun Laoghaire-Rathdown County Council as a contribution towards the expenditure that is proposed to be incurred by the Council in respect of works (comprising the provision of a modified signal controller and ancillary works at the Coal Quay Bridge junction) facilitating the proposed development. The amount of the contribution and the arrangements for payment shall be as agreed between (the Minister) and the Council or, in default of agreement, shall be determined by (the Board)."

7 Payment of this contribution is subject to the provisions of Section 25(2)(h) of the Local Government (Planning and Development) Act, 1963 generally, and in particular, the specified period for the purposes of paragraph (h) shall be the period of 7 years from the date of this order.

Reason:

8 It is considered reasonable that (the Minister) should contribute towards the expenditure proposed to be incurred by the Council in respect of works facilitating the proposed development."

"4. Arrangements shall be agreed between (the Minister) and the planning authority to monitor the capacity and operations of the Coal Quay Bridge and junction and the approach are as to the bridge, following initiation of the new car ferry service (HSS). (The Minister) shall make a contribution to Dun Laoghaire/Rathdown County Council towards any additional works considered necessary to facilitate the new traffic flows at this location. In the absence of agreement between (the Minister) and the planning authority, the amount of this contribution shall be determined by the Board."

Reason:

9 To ensure that adequate traffic arrangements are in place to cater for the operational traffic flows generated by the proposed development in the interest of road safety and convenience of the public."

10 a "5. (a) (The Minister) shall provide for -

11 (i) a redesign of the exit from the disembarkation standage area, so as to exclude heavy goods vehicles from turning left towards the Royal Marine Road junction, and

12 (ii) revised proposals for off road heavy goods vehicles embarkation queue, so as to ensure queueing does not tail back on to Harbour Road.

13 (b) (The Minister) shall provide for a redesign of the proposed roundabouts at the bottom of Royal Marine Road adjacent to the proposed public plaza, so as to provide for -

14 (i) suitable access from the proposed bus layby to the roundabout;

15 (ii) adequate turning radii to provide for feed to the junction of Royal Marine Road and Queen's Road;

16 (iii) a more orderly access from the area in front of the Royal St George Yacht Club (that is between the yacht club (that is between the yacht club and Queen's Road) into the roundabout and to provide a through route from the Carlisle Pier to Harbour Road;

17 (iv) improved separation between the car park (beneath the public plaza) exit and the bus bay exit;

18 (v) suitable access and egress to the area to the rear of the Royal St George Yacht Club for cranes and boats;

19 (vi) proper access aisles for the nose-on car parking adjoining the side of the Royal St George Yacht Club;

20 (vii) adequate turning circle for buses;

21 (viii) improved safety and visibility at the proposed pedestrian crossing.

22 (c) Detailed drawings showing the requirements of (a) and (b) above shall be submitted to and agreed with the planning authority within three months of the date of this order.

Reason:

23 In the interest of orderly development and traffic safety."

"(6) The pavement treatment of the proposed pedestrian link to the DART station where it lies within lands within the ownership and control of (the Minister) shall be upgraded by means of paving, signage, safety barriers and, as necessary, pavement separation and other landscaping measures as may be required to reinforce clear and strong pedestrian links to the adjoining urban centre, set-down are as and car parks, so as to maximise pedestrian safety and reduce pedestrian/vehicular conflicts to a minimum. Detailed drawings showing proposals to achieve the above shall be submitted to and agreed with the planning authority within three months of the date of this order."

Reason:

24 In the interest of pedestrian safety and orderly development."

25 The Applicant seeks an order of certiorari by way of judicial review of the decision of the Board to grant the permission. In substance, the case made on his behalf is that the imposition by the Board of the conditions in question which leave a number of matters relating to traffic to be agreed between the Minister and the planning authority, constitutes an abdication by the Board of its responsibility to determine the matter and is, in the result, ultra vires the powers of the Board under the Local Government (Planning and Development) Acts, 1963 to 1993.

26 The Applicant is a resident of Dun Laoghaire and is concerned by what he says will be the traffic congestion, pollution and general destruction of the environment of Dun Laoghaire that will result from an increase in cars, buses and, more particularly, heavy goods vehicles arriving at the proposed new ferry terminal. He says that the single most important planning issue in relation to the proposed development concerned traffic, as is clear from the amount of space devoted to the topic in the submission presented on behalf of the Minister to the Board and in the Environmental Impact Statement also prepared on behalf of the Minister.

27 Two preliminary points should be noted at this stage. First, the Board and the Minister having been given notice of the intention of the Applicant to apply for judicial review in respect of the decision of the Board, the Board and the Minister accepted that the matter was being properly brought before the Court and, accordingly, leave was not applied for in accordance with the usual practice. Secondly, it was accepted that, by virtue of s. 4 of the Local Government (Planning and Development) Act, 1993, and s. 2 of the Dun Laoghaire Harbour Act, 1994, the Minister was not required to obtain permission under the Local Government (Planning and Development) Act, 1963, for the development. The Minister, however, having voluntarily submitted to the planning process, did not rely on this in any way in resisting the Applicant's claim.

28 It is obvious that the...