Boland v an Bord Pleanála

• Jurisdiction: Ireland
• Judgment Date: 21 March 1996
• Date: 21 March 1996
• Docket Number: [1994 No. 352 J.R.; S.C. No. 131 of 1995]
• Court: Supreme Court

High Court

Supreme Court

[1994 No. 352 J.R.; S.C. No. 131 of 1995]

Boland v. An Bord Pleanála

Raymond Boland

Applicant

and

An Bord Pleanála

Respondent

The Minister for the Marine and Others, Notice Parties

Cases mentioned in this report:—

Crodaun Homes Ltd. v. Kildare County Council [1983] I.L.R.M. 1.

Houlihan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993).

Keleghan and Others v. Corby and Dublin Corporation (1976) 111 I.L.T.R.144.

Mixnam Properties Ltd. v. Chertsey Urban District Council [1964] 1 Q.B. 214; [1963] 3 W.L.R.38; [1963] 2 All E.R. 787.

The State (Foxrock Construction Co. Ltd) v. Dublin County Council(Unreported, High Court, Finlay P., 5th February, 1980).

Local government - Planning and development - Bord Pleanála - Grant of planning permission on appeal subject to conditions - Plans and contributions in respect of traffic and pedestrian works to be agreed with planning authority - Whether improper abdication or delegation of planning functions - Test to be applied in determining matters to be agreed between planning authority and developer - Whether decision of Board rendered invalid because of improper conditions - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26, sub-ss. 1, 2 and 5, s. 82, sub-s. 3B - Local Government (Planning and Development) Act, 1976 (No. 20), s. 14, sub-ss. 3 and 4 - Local Government (Planning and Development) Act, 1993 (No. 12), s. 4.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Keane J., infra.

By consent of the parties, the High Court (Barr J.) granted leave to apply for judicial review on the 17th October, 1994. The applicant sought the following reliefs in respect of a decision of the respondent of the 20th July, 1994:—

• (1) An order of certiorari;

• (2) a declaration that the decision of the respondent constituted an improper abdication by the respondent of its responsibilities in the particular circumstances of the case by virtue of its failure to make decisions in relation to the traffic consequences of the proposed development;

• (3) if necessary, an injunction restraining the commencement of development work or part thereof until final determination of the proceedings;

• (4) further and other relief.

The application was heard by the High Court (Keane J.) on the 4th November, 1994.

By notice of appeal dated the 12th April, 1995, the applicant appealed to the Supreme Court on a point of law of exceptional public importance. The High Court (Keane J.) certified the point in accordance with s. 82, sub-s. 3B of the Local Government (Planning and Development) Act, 1963, in the terms indicated in the judgment of Hamilton C.J., infra. The appeal was heard by the Supreme Court (Hamilton C.J., Blayney and Barrington JJ.) on the 20th February, 1996.

Section 26, sub-s. 1 of the Local Government (Planning and Development) Act, 1963, empowers a planning authority, in determining a planning application, to grant permission subject to conditions, including those set out in sub-section 2. By virtue of s. 26, sub-s. 5 (b), An Bord Pleanála enjoys the same powers as a planning authority where an appeal is made to it against decisions of a planning authority.

Section 14, sub-s. 4 of the Local Government (Planning and Development) Act, 1976, provides:—

"In case there is attached to a permission or approval granted under s. 26 of the Principal Act a condition which provides that a contribution or other matter is to be agreed between the planning authority and the person to whom the permission or approval is granted and that in default of agreement the contribution or other matter is to be determined by the Minister, the condition shall be construed as providing that in default of agreement the contribution or other matter is to be determined by the Board."

The respondent granted planning permission to the first notice party for a development consisting of the extension and refurbishment of an existing ferry terminal at Dun Laoghaire. The decision was granted subject to a number of conditions which required the first notice party to agree the following matters with the planning authority:—

• 1. Plans for the management of ferry traffic;

• 2. The level of contribution for off-site traffic works - the Board to determine the extent of such contribution should the parties fail to agree;

• 3. Arrangements for monitoring post-development traffic flows and, if necessary, the amount of any additional contribution retained for remedial off-site traffic works - the Board to determine the amount of such contribution should the parties fail to agree;

• 4. New design plans for traffic access and egress arrangements;

• 5. Plans for the carrying out of pedestrian works on lands within the ownership and control of the first notice party.

The applicant sought an order of certiorari in respect of the respondent's decision on the ground that the conditions attached to it constituted an improper abdication of its functions to the local planning authority, thereby depriving interested parties of the opportunity to be heard.

Held by Keane J., in refusing the relief sought, 1, that the respondent had not improperly abdicated its planning functions to the local authority, it being a matter of degree in any given case whether such an abdication had occurred. In the instant case, the wording of s. 14, sub-s. 4 of the Local Government (Planning and Development) Act, 1976, the impracticality of imposing detailed conditions in relation to the relevant matters, and the limited statutory role of the respondent following its determination, precluded the making of such a finding.

Houlihan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993) applied; Keleghan and Others v. Corby and Dublin Corporation(1976) 111 I.L.T.R. 144 and The State (Foxrock Construction Co. Ltd.) v. Dublin County Council (Unreported, High Court, Finlay P., 5th February, 1980) considered.

Dicta: In a sense, the Board was functus officio following a decision on a planning appeal; its only role of any significance was the resolution of matters which had been left for agreement between the developer and the planning authority.

2. The impugned conditions were not void for uncertainty because no serious ambiguity would arise should enforcement for non-compliance of those conditions prove necessary.

Mixnam Properties Ltd. v. Chertsey Urban District Council [1964] 1 Q.B. 214distinguished.

The High Court granted the applicant leave to appeal on the basis that the case raised a point of law of exceptional public importance. The point was:—

"What are the criteria which distinguish those matters which may properly be left to the developer and the planning authority to agree upon, and those matters which cannot be left to such parties in such fashion and must instead be decided by An Bord Pleanála itself under the provisions of the Local Government (Planning and Development) Acts, 1963 to 1992, and has An Bord Pleanála applied such criteria to the instant case?"

Held by the Supreme Court (Hamilton C.J., Blayney and Barrington JJ.) in dismissing the applicant's appeal, 1, that the type of matter which may properly be inserted into a planning condition for later agreement between the planning authority and a developer depends upon the nature of the proposed development and its related planning application.

Houlihan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993) approved.

2. The criteria to which the Board was entitled to have regard in deciding whether to impose a condition leaving a matter to be agreed between the developer and the planning authority are:—

• (a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;

• (b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require re-design in the light of practical experience;

• (c) the impracticability of imposing detailed conditions having regard to the nature of the development;

• (d) the functions and responsibilities of the planning authority;

• (e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;

• (f) whether any member of the public could have reasonable grounds for objecting to the work to be carried out pursuant to the condition, having regard to the precise nature of the instructions in regard to it laid down by the Board and having regard to the fact that the details of the work had to be agreed by the planning authority.

Houlihan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993) approved.

3. In imposing a condition requiring matters to be agreed between the developer and the planning authority, the Board was obliged to set forth the purpose of such details, the overall objective to be achieved by the matters to be agreed, to state clearly the reasons therefor and to lay down criteria by which the developer and the planning authority could reach agreement.

4. The matters stipulated in the conditions in the instant case were essentially technical matters or matters of detail, and contained sufficient detail to enable the developer and the planning authority to comply with the requirements of the Board. Accordingly, the respondent had not improperly abdicated its statutory duties to the planning authority.

(Per Blayney J.): It would have been preferable if the conditions had included the words "and in default of agreement shall be determined by the Board" since the developer would otherwise be unfairly bound by the views of the planning authority in the event of there being a...