Brendan Stanley v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] IEHC 177
• Docket Number: [Record No. 2020/239 J.R.]
• Court: High Court

Between:

Brendan Stanley

Applicant

and

An Bord Pleanála

Respondent

and

John McGurk and Dublin City Council

Notice Parties

[2022] IEHC 177

[Record No. 2020/239 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

JUDGEMENT of Ms. Justice Siobhán Phelan delivered on the 28th day of March, 2022

INTRODUCTION

1 The issues which arise in these proceedings concern a decision of An Bord Pleanála made on the 21st of January 2020 [hereinafter “the decision”] whereby it concluded, on an application for a declaration pursuant to s. 5 of the Planning and Development Act 2000 (the “2000 Act”), that a change of use was “ material” and therefore constituted “ development” within the meaning of s. 3 of the 2000 Act was adequately reasoned and/or sustainable as a reasonable decision.

PROCEEDINGS

2 The application for a declaration pursuant to s. 5 of the 2000 Act was presented by the applicant on the basis that the change of use of the premises at 132a Richmond Road, Dublin 3 (the “ premises”) from furniture manufacturing and associated storage to commercial self-storage did not constitute a material change of use and was therefore not development for the purposes of the 2000 Act.

3 In arriving at its decision, the Board reviewed an earlier decision of the second notice party on the first instance s. 5 application whereby the second notice party also determined that development, which was not exempt development, was occurring by reason of a material change in use. The application for a s. 5 declaration was made in circumstances where there were extant enforcement proceedings pursuant to s. 157 of the 2000 Act adjourned before the District Court as against the applicant.

4 Proceedings were commenced by notice of motion dated the 6th July 2020 following an ex parte order granting leave to proceed by way of judicial review made by the High Court (Meenan J.) on the 22nd June 2020.

5 The primary relief sought in the proceedings is an order of certiorari quashing the decision of the respondent made on the 21st January 2020 whereby the respondent determined that the development the subject matter of a referral pursuant to s. 5 of the 2000 Act was development and was not exempted development (ABP 304098-19). The principal ground identified and pursued on behalf of the applicant in seeking this relief is that neither the Board nor the inspector identified a proper, reasoned basis for the conclusion that the change of use was “ material”.

6 It is claimed by reference to the inspector's report (para. 18 of the Statement of Grounds):

“There is no basis whatsoever for this conclusion. No evidence exists or is relied upon in this regard. None of the matters upon which this conclusion was reached are apparent. The conclusion is unreasoned and unreasonable and flies in the face of reason and common sense.”

7 A similar plea is advanced in respect of the decision of the Board which adopts without further expansion the inspector's recommendation (para. 20 of the Statement of Grounds).

8 By Statement of Opposition filed in on the 11th November 2020, the respondent opposes the relief sought contending that the decision is correctly taken on the basis of relevant considerations, was properly grounded in evidence and adequately reasoned. It is asserted at para. 10 of the Statement of Opposition that the inspector concluded that the change of use was “ material” due to the implications for traffic, servicing and car parking along a busy and relatively narrow road and the amenity of the neighbouring properties. It is contended that the decision of the respondent must be read in accordance with the inspector's report and the materials that were before the Board and the reasoning can be inferred from the Inspector's report and the planning file.

FACTUAL BACKGROUND

9 The applicant is the occupier of a premises at 132a Richmond Street, (hereinafter “the Premises”). The premises is used as a self-storage unit. Although the history of the planning file reveals a range of uses from a pre-63 use as a saw mill and associated store, to furniture maker, to car dealer, to furniture store to the current use as a self-storage unit, it was common case during the hearing that the relevant use for the purpose of determining whether there has been a “ material” change in use is the difference between the use in 2015 and the current use. The premises are said to have been used for furniture manufacturing and associated storage in 2015.

10 On or about the 11th October 2018, the applicant received a warning letter from Dublin City Council pursuant to s. 152 of the 2000 Act which alleged that an unauthorised change of use had occurred 132a Richmond Rd, Fairview, Dublin 3. There is no evidence before me as to whether there was a response to this correspondence on behalf of the applicant or not.

11 A site inspection was carried out by a planning enforcement officer employed by the second notice party on the 16th January 2019. She prepared a report dated the 18th January 2019 in which issues in relation to the business activity carried on at the site were raised. It was recorded that issues with the structures on site were communicated and a further site visit was proposed to establish if the unauthorised structures were removed from the site.

12 In response to the correspondence from the second notice party and a site visit from the planning enforcement officer, the applicant made application for a declaration from the second notice party as relevant planning authority on the 11th February 2019. The application (Planning Register Ref. 0057/19) sought a confirmation to the effect that there was [n]o requirement for change of use as existing use as storage facility and previously as a furniture manufacturer and storage facility has not changed significantly. This application was accompanied by a letter from an architect on behalf of the applicant. The following documents were enclosed with the completed application form:

• i A drawing with floor plans and elevations;

• ii A site location map;

• iii Photos of the structure;

• iv Letter from the owner of the property explaining history and use;

• v Letter from second notice party re: use.

13 An inspector on behalf of the second notice party prepared a report in respect of the s. 5 application. In his report, the second notice party's inspector described the site and its surroundings, addressed the zoning applicable to the site and set out in detail the relevant planning history including a description of the retention permission which was refused in 2012 for change of use to a car sales and associated works and recording that the reasons for refusal were:

• “1. Having regard to the restricted nature of the site, the lack of any on-site parking and servicing facilities which would result in overspill onto the narrow and heavily trafficked Richmond Road it is considered that the development would give rise to traffic congestion, would lead to conflicting turning movements at this location and would, therefore, endanger public safety by reason of traffic hazard.

• 2. Having regard to the restricted nature of the site and the character of the motor sales showroom use proposed for retention which results in overspill onto Richmond Road, and the character of the surrounding area being mainly residential, permitting retention of the use as a motor sales show would result in serious injury to the residential amenities of property in the vicinity due to traffic congestion, parking problems and general impact on amenity and, therefore, would be contrary to the proper planning and sustainable development of the area.”

14 In material part, the second notice party's inspector stated:

“The proposal seeking Declaration of Exempted Development comprises a change of use from a furniture manufacturer and associated storage of completed furniture (light industrial building as stated by agent) to a storage facility containing a large number of self-storage walk-in units of various sizes for short and long term rental.

It is considered that the proposal constitutes a material change of use and is therefore development in accordance with the provisions of section 3(1) of the Planning and Development Act, 2000 (as amended).”

15 Following a decision on the 5th March 2019, the second notice party issued a notification of declaration on the 6th March 2019. The notification confirmed the second notice party's decision that the proposed development was not exempt from the requirement to obtain planning permission under s. 32 of the 2000 Act [Ref. 0057/19].

16 Several days later a further site inspection took place on the 8th March 2019 resulting in the production of an additional report by the planning enforcement officer dated 14th March 2019. An enforcement notice pursuant to s. 154 of the 2000 Act was served by the second notice party on the 27th March 2019. In October 2019, the planning enforcement officer conducted a further site inspection which confirmed partial compliance with the enforcement notice. However, a report prepared by enforcement officer recommended that proceedings pursuant to s. 157 of the 2000 Act be instituted for the remaining non-compliance with the enforcement notice.

17 On foot of this recommendation a summons issued on the 18th November 2019 in respect of the alleged non-compliance with the enforcement notice dated 27th March 2019. These proceedings remain pending before the District Court and have been adjourned from time to time.

18 While the site inspection reports dating to March 2019 and October 2019 and the enforcement notice served in March 2019 were exhibited in the judicial review proceedings, the respondent did not have regard to this evidence in making the impugned decision as they were not contained on the second notice party's file forwarded on the referral and post-dated the referral. It is clear from the second notice...