Byrnes v Cublin City Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 18 January 2017
• Neutral Citation: [2017] IEHC 19
• Court: High Court
• Docket Number: [2015 No. 174 JR]
• Date: 18 January 2017

[2017] IEHC 19

THE HIGH COURT

JUDICIAL REVIEW

Baker J.

[2015 No. 174 JR]

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND DEVELOPMENT ACT 2000

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

KENNY BYRNES

APPLICANT

AND

DUBLIN CITY COUNCIL

RESPONDENT

Local government – Planning and Development – Planning and Development Act 2000 – Planning and Development Regulations 2001 – The Housing Act 1988 – Health Act 2004 – Proposal to provide temporary shelter in categorized accommodation – Certiorari

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent to authorise the proposed works in relation to the subject premises designated as protected structure. The applicant asserted that the proposed developments were in material contravention of the Dublin City Development Plan, 2011 and that the public notice was also issued in abhorrence of the Planning and Development Regulations 2001. The respondent refuted all the complaints raised by the applicant and asserted that the proposal to offer temporary accommodation to the homeless and destitute for a maximum period of six months was intended to replace the services already offered by Dublin Simon. The respondent argued that since it was the owner of the subject premises, it had the authority to make changes as prescribed under the law.

Ms. Justice Baker refused to grant the desired relief to the applicant. The Court held that the provision of services for homeless persons was the one contemplated by the Development Plan 2011 as it was for the benefit of the public, albeit on the fulfilment of the criteria laid down by the operator of the services. The Court held that mere pointing out that there would be material contravention of the 2011 Plan would not suffice without any corresponding evidence showing any alienation or structural alteration. The Court found that since the subject premises were situated in a conservation area, the respondent was to ensure that the developments would complement the character of the area, the requirement, which the respondent had clearly met in the present case. The Court noted that the public notice was sufficient when it had identified the nature and extent of the impact of the proposed developments as the subject premises was not an architectural conservation area. The Court noted that there were deficiencies in the Chief Executive's Report and the Court found those deficiencies to be minimal and not fulfilling the criteria for granting an order of certiorari.

JUDGMENT of Ms. Justice Baker delivered on the 18th day of January, 2017.

1 This application relates to the authorisation of proposed works and change of use of premises at 9 and 10 Fitzwilliam Street granted under the special scheme applicable to local authority development created by s.179 of the Planning and Development Act 2000 (‘the Act’) and Part VIII of the Planning and Development Regulations 2001 (‘the 2001 Regulations’).

2 The applicant seeks an order of certiorari quashing the decision of Dublin City Council (‘the Council’) to proceed with the decision to authorise the development, and seeks declaratory relief regarding the applicability of s. 179 of the Act and Part VIII of the 2001 Regulations.

3 Leave was granted by Noonan J. on 13th April, 2015.

Factual Background

4 The applicant lives with his family at 2 Fitzwilliam Street Upper, Dublin 2, a Georgian house built between 1760 and 1790 and identified in the Dublin City Development Plan as a protected structure. The architectural and heritage value of the premises and the adjoining Fitzwilliam Square, Merrion Square and Fitzwilliam Street is recognised in the Development Plan.

5 The respondent is the owner of nearby premises at 9 and 10 Fitzwilliam Street Lower, Dublin 2, known as Longfield House, operated by its previous owners as a ‘boutique’ hotel, comprising two Georgian houses, also protected structures, and noted in the Dublin City Development Plan as part of the Georgian heritage area of south central Dublin.

6 In or around the month of October, 2014 the Council initiated a proposal to carry out works and to change the use of the subject premises from a former hotel to supported temporary accommodation for single persons and couples comprising a total of 30 bed spaces and common living and support rooms to be operated by Dublin Simon Community (‘Dublin Simon’). As the Council is the owner of the premises it availed of the special legislative scheme.

7 The proposal arose from a perceived need to replace facilities currently operated by Dublin Simon in an emergency accommodation unit for homeless persons located at Harcourt Street in the City of Dublin, a relatively short distance from the subject premises.

8 A decision was made by the Council on 2nd February, 2015 that the refurbishment works and change of use be authorised. The process envisaged by Part VIII of the 2001 Regulations does not provide for an appeal to An Bord Pleanála, and this application for judicial review is a challenge to the entire decision of the Council in the circumstances.

9 A number of specific complaints are made with regard to the process engaged by the Council, and these broadly are as follows:

a. The proposed development constitutes a material contravention of Dublin City Development Plan, 2011 (‘the Development Plan’) and is therefore in breach of s. 178(2) of the Act.

b. The public notice failed to comply with Article 81 of the 2001 Regulations.

c. There was no notice given to a prescribed body as required by Article 82 of the 2001 Regulations.

d. The report prepared by the Chief Executive, or Manager, of the Council for submission to the elected representatives for the purposes of the decision making process did not comply with s. 179(3) of the Act.

e. The development does not fall within s. 179(1) of the Act, as it is in substance a development by Dublin Simon, a private developer, and not a Council development.

10 The application is fully contested and the respondent makes a preliminary objection that the application is out of time. I deal first with this argument.

Is the application out of time?

11 Leave was granted on 13th April, 2015 and the decision challenged was made on 2nd February, 2015. An eight week period to commence an application for judicial review is provided by s. 50(6) of the Act, the period of eight weeks to begin on the date of the decision. The order of Noonan J. granting leave was made fifteen days outside the permitted eight week period, which expired on 29th March, 2016, a Sunday.

12 The evidence of the applicant contained in his second affidavit sworn on 11th December, 2015 is that application was made to Noonan J. on 27th March, 2015, the last day of the Hilary term and he, having considered the statement to ground the application for judicial review, adjourned the matter to the first day of the Easter term, a Monday. Monday is the appropriate day, bar exceptional circumstances, for the making of an application for leave.

13 The matter then came on for hearing on Monday, 13th April, 2015 and was further considered by Noonan J. and an order granting leave made.

14 I consider that the application was made within time, on 27th March, 2015, and that the application before Noonan J. was a two-stage process, the effect of which was that having considered the matter briefly, and within the time available to him, Noonan J. adjourned further consideration to 13th April, 2015. The application was commenced and moved within time, and the conclusion of the hearing was adjourned due to the exigencies of the list and of the law terms, a matter outside the control of the applicant and of Noonan J. I reject the argument that the applicant is out of time.

Preliminary observation: the nature of the review

15 McGuinness J. in Duffy v. Waterford Corporation [1999] IEHC 24 noted the limit of her jurisdiction in judicial review, but the applicant argues that having regard to the fact that this application is a review of a decision under s. 178 in respect of which there is no appeal, that a narrow approach to review is not to be preferred. I accept the argument that, as judicial review is the sole available remedy by which the applicant can challenge a decision under s. 178, the court may investigate the circumstances of the permission with some particularity and a degree of scrutiny, and that it is not confined to the test as identified in O'Keeffe v. An Bord Pleanála & Ors. [1993] 1 I.R. 39. I consider that such approach is consistent with the requirement that the applicant have an effective remedy, albeit judicial review is the relevant remedy. McGuinness J. did not address the scope or approach of a court hearing the review but did note that the court was not to take upon itself the role of adjudicating on a planning permission.

16 With that approach in mind, I deal now in sequence with the substantive grounds of challenge made by the applicant.

The first challenge: user is in material contravention of the Development Plan

17 Section 178(2) of the Act places certain restrictions on the use of the statutory scheme by local authorities in that:

‘The corporation of a city shall not effect any development in the city which contravenes materially the development plan’.

18 Section 178(2) of the Act prohibits the granting of permission which ‘contravenes materially the development plan’ as explained by Clarke J. in Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 at p. 695 where he suggests that the ‘manner in which it is in contravention of the development plan must be material’.

19 Before I deal with the specific grounds on which it is claimed that the proposed development contravenes the Dublin City Development Plan, I turn to examine the...