Cicol Ltd v Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Irvine
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 146
• Docket Number: No. 1564 J.R./2007
• Date: 08 May 2008

Cicol Ltd v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF

THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

CICOL LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DUN LAOGHAIRE-RATHDOWN COUNTY COUNCIL, ARDGLAS RESIDENTS ASSOCIATION, FRIENDS OF AIRFIELD, MAURICE W. TRYAN, BALALLY RESIDENTS ASSOCIATION, ROSE MARY LOGUE, TANEY SCHOOL BOARD OF MANAGEMENT, BARBARA CLEAR, ANTHONY AND GWENDOLYN DUDLEY

NOTICE PARTIES

[2008] IEHC 146

No. 1564 J.R./2007

THE HIGH COURT

PLANNING & DEVELOPMENT LAW

Planning permission

Reasons - Adequacy - Development plan - Interpretation - Approach to be adopted - Whether correct in law - Level of deference to be accorded to local authority's interpretation of its own development plan - Whether development would materially contravene development plan - Whether failure to take relevant matters into consideration - Whether development in conformity with proper planning and development of area - Planning and Development Act 2000 (No 30), ss 34, 37 and 178 - Re XJS Investments Ltd [1986] IR 750, McNamara v An Bord Pleanála [1995] 2 ILRM 125 and Mulholland v An Bord Pleanála (No 2) [2006] I IR 453 applied; O'Leary v Dublin County Council [1988] IR 150, Attorney General (McGarry) v Sligo County Council [1991] 1 IR 99 and Tennyson v Corporation of Dun Laoghaire [1991] 2 IR 527 considered - Relief refused (2007/1564JR - Irvine J - 8/5/2008) [2008] IEHC 146

Cicol Ltd v An Bord Pleanála

Facts: The applicant was the owner of lands in Dundrum, Dublin known locally as “Dudley’s Field”. The applicant applied for leave to apply for judicial review and for full judicial review of the respondent’s refusal to grant planning permission. The applicant contended inter alia: that the respondent failed to comply with its statutory obligations to give reasons for its decision; and that the respondent’s conclusion that the applicant’s development constituted a material contravention of the Development Plan was incorrect as a matter of law.

Held by Irvine J. in granting the applicant leave to apply for judicial review but refusing the application for judicial review that the respondent had complied with its statutory obligations to set out the main reasons and considerations underlying its determination. The respondent did not have regard to any irrelevant considerations in reaching its determination. The respondent’s decision, as a matter of law, was one which was correct and the applicant’s proposed development was, applying the appropriate method of interpretation, in material contravention of the Development Plan.

Reporter: R.W.

PLANNING & DEVELOPMENT (AMDT) ACT 2002

PLANNING & DEVELOPMENT (STRATEGIC INFRSTRUCTURE) ACT 2006

MCGARRY, AG v SLIGO CO COUNCIL 1991 1 IR 99

TENNYSON v CORPORATION OF DUN LAOGHAIRE 1991 2 IR 527

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

WICKLOW HERITAGE TRUST LTD v WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

PLANNING & DEVELOPMENT ACT 2000 S146

PLANNING & DEVELOPMENT ACT 2000 S50(4)(c)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

PLANNING & DEVELOPMENT ACT 2000 S34(10)

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371

GREALISH v BORD PLEANALA UNREP O'NEILL 24.10.2006 2006/27/5728 2006 IEHC 310

PLANNING & DEVELOPMENT ACT 2000 S34(10)(b)

PLANNING & DEVELOPMENT ACT 2000 S34(10)(a)

PLANNING & DEVELOPMENT ACT 2000 S146(2)

PLANNING & DEVELOPMENT ACT 2000 S146(1)

PLANNING & DEVELOPMENT ACT 2000 S37(1)(b)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(b)

PLANNING & DEVELOPMENT ACT 2000 S34(6)(a)

PLANNING & DEVELOPMENT ACT 2000 S34(6)(b)

PLANNING & DEVELOPMENT ACT 2000 S34(6)(c)

PLANNING & DEVELOPMENT ACT 2000 S36(6)(d)

O'LEARY v DUBLIN CO COUNCIL 1988 IR 150PLANNING & DEVELOPMENT ACT 2000 S36

PLANNING & DEVELOPMENT ACT 2000 S34(1)

PLANNING & DEVELOPMENT ACT 2000 S34(2)

PLANNING & DEVELOPMENT ACT 2000 S34(3)

PLANNING & DEVELOPMENT ACT 2000 S34(4)

PLANNING & DEVELOPMENT ACT 2000 S34(2)(a)(i)

PLANNING & DEVELOPMENT ACT 2000 S34(2)(b)

PLANNING & DEVELOPMENT ACT 2000 S34(2)(c)

PLANNING & DEVELOPMENT ACT 2000 S34(2)(iv)

PLANNING & DEVELOPMENT ACT 2000 S36(2)(vi)

PLANNING & DEVELOPMENT ACT 2000 S34(3)(b)

PLANNING & DEVELOPMENT ACT 2000 S37(2)(a)

PLANNING & DEVELOPMENT ACT 2000 S37

Ms. Justice Irvine

1 The applicant is the owner of certain lands comprising a total site area of 13,600 sq.m.(1.36 hectares) adjoining Overend Way in Dundrum, Dublin, known locally and referred to in the planning file of the respondent as "Dudley's Field".

2 The within proceedings arise by reason of the refusal on the part of the respondent ("the Board") on 2^nd October, 2007, to grant planning permission to the applicant for a proposed development on its lands which are within the functional area of the first named notice party ("the Planning Authority"). The Planning Authority, having considered some 29 objections, had originally granted planning permission for the proposed development, subject to twenty conditions, on 22^nd March, 2007. An appeal against that decision was lodged by seven third parties including two residents associations and a local school.

3 The Board appointed Ms. Caryn Coogan to prepare a report and this was submitted on 28^th August, 2007, following upon which the Board refused permission in accordance with her recommendation.

4 In making its decision, the Board advised that it had considered all of the matters to which it was obliged to have regard by virtue of the Planning and Development Acts2000 to 2006, and the Regulations made thereunder, including the submissions and observations which it had received prior to its determination.

5 The reasons given by the Board for its refusal were as follows:-

"Having regard to the nature and scale of the proposed development which consists of primarily residential and mixed commercial use, the proposed development would materially contravene Objective F - 'to preserve and provide for open space and recreational amenities' as set out in the current Dun Laoghaire-Rathdown County Development Plan. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area."

6 The first application before the court is an application seeking leave to apply for judicial review of the Board's decision of 2^nd October, 2007. By agreement between the parties and by virtue of the court's earlier directions, this Court has been charged with firstly determining the leave application and thereafter, in the event of it granting the applicant leave to apply for judicial review, to embark upon the substantive judicial review application. To this end, the respondent delivered a draft Statement of Opposition on 21^st January, 2008.

7 In the substantive proceedings, the applicant seeks to quash the decision of the respondent on the grounds set out at para. (E) of its Statement of Grounds dated 26^th November, 2007. These grounds may be conveniently summarised as follows:

8 (a) That the Board failed to comply with its statutory obligations to "state the main reasons and considerations" on which its decision was based.

9 (b) That the Board failed to have regard to the manner in which the Planning Authority had interpreted its own Development Plan at the time of granting planning permission.

10 (c) That the Board failed to have regard to all relevant considerations when making its decision and in particular:

11 (i) that it failed to consider adequately the specific local objective No. 5 in the Development Plan, namely "to encourage the retention and development of the Airfield estate for educational, recreational and cultural uses"; and,

12 (ii) that it failed to have regard to the use of land which was "permitted in principle" and/or "open for consideration" in areas Zoned F in the Development Plan.

13 (d) That the Board misinterpreted the Dun Laoghaire-Rathdown County Development Plan ("the Development Plan") 2004-2010, in failing to assess the applicant's application by reference to the entirety of the lands Zoned F adjoining Overend Way which lands comprised approximately 37 acres (15 hectares) of which the applicant's site was, to quote the applicants submission,"but a small part, i.e. less than ten per cent".

14 (e) That the Board failed to consider whether the proposed development ought to have been permitted, even if the Board considered that the proposed development would materially contravene the Development Plan.

15 Because the within proceedings constitute a challenge not only the correctness, as a matter of law, of the Board's decision to refuse planning permission but also to its interpretation of the relevant Development Plan, it is necessary to briefly refer a number of well established legal principles against which the applicants claim must be considered.

16 At the heart of these proceedings is a local authority development, in this case the Dun-Laoghaire Rathdown Development Plan, a document which has been described in the following manner by McCarthy J. inAttorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 at p. 113:-

"The plan is a statement of objectives; it informs the community, in its draft form, of the intended objectives and affords the community the opportunity of inspection, criticism, and, if thought proper, objection. When adopted, it forms an environmental contract between the planning authority, the Council and the community, embodying a promise by the Council that it would regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially. The private citizen, refused permission for development...