Clinton and Others v Quirke and Others

• Jurisdiction: Ireland
• Judge: Finnegan P
• Judgment Date: 15 March 2005
• Neutral Citation: [2005] IEHC 84
• Court: High Court
• Date: 15 March 2005

[2005] IEHC 84

THE HIGH COURT

RECORD NO. No. 184 JR/2003

CLINTON v BORD PLEANALA & ORS

JUDICIAL REVIEW

PAUL CLINTON

AND

AN BORD PLEANáLA, DUBLIN CITY COUNCIL, AND, BY ORDER, THE ATTORNEY GENERAL

RESPONDENTS

AND

RICHARD QUIRKE, DUBLIN POOL AND JUKE BOX COMPANY LIMITED, BAYCROSS DEVELOPMENTS LIMITED, CARROLLS OF DUBLIN LIMITED, COLM CARROLL, REGAN DEVELOPMENTS LIMITED, DANIEL TROY AND CHRISTOPHER TROY TRADING AS TROY BROTHERS, DOYLES STORES LIMITED, F.X. BUCKLEY LIMITED, STEPHEN ROSS TRADING AS INDUSTRIA, SIMON HART LIMITED, JOHN CORCORAN, JAMES COUSINS LIMITED, MARTINA INVESTMENTS LIMITED, PETER SLATTERY LIMITED

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S219

PLANNING & DEVELOPMENT ACT 2000 135(5)(ii)

PLANNING & DEVELOPMENT ACT 2000 S212

PLANNING & DEVELOPMENT ACT 2000 S213

HOUSING ACT 1966 (ACQUISITION OF LAND) REGS 2000 SI 454/2000

HOUSING ACT 1966 SCHED 3

PLANNING & DEVELOPMENT ACT 2000 S213(4)

LOCAL GOVT (NO2) ACT 1960 S10

HOUSING ACT 1966 S86

PLANNING & DEVELOPMENT ACT 2000 S219(1)

CAMPBELL (DONALD) & CO LTD v POLLACK 1927 AC 732

PLANNING & DEVELOPMENT ACT 2000 S135(5)

PLANNING & DEVELOPMENT ACT 2000 S135

PLANNING & DEVELOPMENT ACT 2000 S218(4)

FREEDOM OF INFORMATION ACT 1997

PLANNING & DEVELOPMENT ACT 2000 S315

NOLAN v IRISH LAND COMMISSION 1981 IR 23

HOUSING ACT 1966 SCHED 3 S76

PLANNING & DEVELOPMENT ACT 2000 S212(1)

PLANNING & DEVELOPMENT ACT 2000 S213(1)

PLANNING & DEVELOPMENT ACT 2000 S213(3)(b)

LOCAL GOVT (NO2) ACT 1960 S10(1)(a)

PLANNING & DEVELOPMENT ACT 2000 S213(3)

PLANNING & DEVELOPMENT ACT 2000 S213(2)

CONSTITUTION ART 43.1

CONSTITUTION ART 40.3.3

KELLY THE IRISH CONSTITUTION 4ED 2013

BLASCAOD MOR TEORANTA v COMMISSIONERS OF PUBLIC WORKS 2000 1 IR 6 2000 1 ILRM 401

NI EILI v ENVIRONMENT PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

PROCTOR & GAMBLE LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 63 P & CR 317

PLANNING & DEVELOPMENT ACT 2000 S212(1)(d)(e)

LOCAL GOVT PLANNING & LAND LAW ACT 1980

MEARVALE BUILDERS LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 1978 36 P & CR 87 95

CROSBIE v CUSTOM HOUSE DOCK DEVELOPMENT AUTHORITY 1996 2 IR 531

PLANNING & DEVELOPMENT ACT 2000 S213(2)(a)

PLANNING & DEVELOPMENT ACT 2000 PART XIV

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 43CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.1.1

CONSTITUTION ART 43.1.2

BLASCAOD MOR TEORANTA & ORS v COMMISSIONERS OF PUBLIC WORKS IN IRELAND & ORS UNREP HIGH 27.2.1998 1998/11/3594

MACMATHUNA v IRELAND & AG 1995 1 IR 484 1995 1 ILRM 69

MADIGAN v AG 1986 ILRM 136

PREST v SECRETARY OF STATE FOR WALES 1982 81 LGR 193

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

PLANNING AND ENVIRONMENTAL LAW

Compulsory purchase order

Oral hearing - Making and confirmation of order - Production of documents - Manner in which application for production of documents should be made - Costs at oral hearing - Donald Campbell & Co v Pollack[1927] AC 732 considered - Purposes for which compulsory purchase order made -Duty to give reasons - Whether order confirmed for purpose other than for which made An Blascaod Mór Teo v Commissioners of Public Works (Unrep, Budd J, 27/2/1998)and NíÉilí v Environmental Protection Agency (Unrep, SC, 30/7/1999) considered -Planning and Development Act 2000 (No 30),Pt XIV, ss 135, 212, 213, and 219 - Relief in relation to costs granted, other relief refused

The applicant sought to impugn by way of an application for judicial review a compulsory purchase order (CPO) made by the second named respondent and confirmed by the first named respondent on the grounds that: (1) The order confirming the CPO was invalid on its face having failed to deal with the applicant’s application for costs pursuant to s. 219 of the 2000 Act and an application for the production of documents pursuant to s.135(5)(ii) of the 2000 Act, (2) the CPO was invalid on that it failed to state fully or accurately the purposes for which it was made, (3) the CPO was invalid and ultra vires in that it failed to set out any or any adequate reasons for the decision of the first named respondent, (4) the CPO was invalid on its face in that it was confirmed for a purpose other than the purpose for which the CPO was made, (5) the CPO was invalid because it was confirmed without evidence being adduced by the second named respondent and accordingly the applicant was unable to test the manner in which the general statutory purposes identified in the CPO and supporting documentation was to be achieved. The applicant also sought a declaration that the provisions of Part XIV of the Act of 2000 were invalid having regard to the provisions of the Constitution and in particular Articles 40.3.2 and 43.1.1.

Held by Finnegan P. in refusing the application:

1. That the first named respondent acted ultra vires in not dealing with the applicant’s application for costs.

2. That the applicant failed to demonstrate that he was denied natural justice in the manner in which his request for documents was dealt with.

3. That s. 213 in referring to purposes referred to statutory purposes and did not require evidence of a specific development and accordingly the purpose set forth in the order of the first named respondent was sufficient.

4. That the reasons given by the first named respondent when read in conjunction with the Inspector’s report were sufficient.

5. That the fourth ground relied on by the applicant did not come within the grounds in respect of which leave was granted. In any event, the purpose set out in the CPO and the purpose set out in the decision of the first named respondent was the same purpose and was one which enabled a CPO to be made and confirmed.

6. That abundant evidence was adduced before the Inspector as to the purpose identified in the CPO and it was unnecessary to determine in advance of the making of the CPO the means by which that statutory purpose would be achieved.

7. That the statutory scheme at issue did not infringe the constitutional rights of the applicant to private property.

Reporter: L.OS.

1 Judgment of Finnegan P. delivered on the 15th day of March 2005

2 The issues in this matter were litigated between the Applicant and the Respondents the Notice Parties, having appeared, taking no active part in the proceedings.

3 This application concerns an extensive site at the northern end of O'Connell Street on its western side extending to the west to Moore Street, to the north to O'Rahilly Parade and to the south to Henry Place. The most prominent building within the site is the Carlton Cinema which fronts onto O'Connell Street. In February 1998 Dublin Corporation published an Integrated Area Plan for O'Connell Street. All of the site with which I am concerned is affected by the proposals contained in that Plan and in particular those in relation to Site Cluster 1 thereof. In short the Plan envisaged an integrated and comprehensive redevelopment of the area with the aid of tax incentives. Beginning in the early 1990s the Applicant with other parties assembled a site of some forty properties within Site Cluster 1 and obtained planning permission in respect thereof by decision dated 4th August 1999 of An Bord Pleanála. Included in the planning permission were premises occupied by Dublin County Council which are outside Site Cluster 1. On the 11th December 2001 the second named Respondent Dublin City Council made a Compulsory Purchase Order in respect of all the lands comprised within the planning permission save and except premises 58 Upper O'Connell Street. The Compulsory Purchase Order was confirmed by An Bord Pleanála on the 17th January 2003 but omitted from the same were the premises occupied by Dublin County Council and No. 57 Upper O'Connell Street. In these proceedings the Applicant seeks to impugn the Compulsory Purchase Order on both non constitutional and constitutional grounds.

The Non Constitutional Grounds

4 On day 14 of the hearing before me Counsel for the Applicant set out five specific grounds which had crystallised in the course of the hearing and upon which it is claimed the Applicant is entitled to relief. The five grounds are as follows:-

5 1. The Order of An Bord Pleanála confirming the Compulsory Purchase Order made on the 17th January 2003 is invalid on its face having failed to deal with the Applicant's application for costs pursuant to section 219 of the Planning and Development Act 2000 and an application by the Applicant for the production of documents pursuant to section 135(5)(ii) of the Planning and Development Act 2000.

6 2. The said Compulsory Purchase Order is invalid in that it fails to state fully or accurately the purposes for which the same is being made.

7 3. The said Compulsory Purchase Order is invalid and ultra vires in that it fails to set out any or any adequate reasons for the decision of An Bord Pleanála and in particular reasons for those components of the decision where An Bord Pleanála departed from the recommendation and reasoning of its Inspector.

8 4. The said Compulsory Purchase Order is invalid on its face in that it was confirmed for a purpose other than the purpose for which the Compulsory Purchase Order under appeal had been made.

9 5. The said Compulsory Purchase Order is invalid the same having been confirmed without evidence being adduced by Dublin City Council. In consequence the Applicant was unable to test the manner in which the general statutory purposes identified in the Compulsory Purchase Order and supporting documents was to be achieved. Further An Bord Pleanála was without evidence as to the manner in which the general statutory purposes identified in the Compulsory Purchase Order and the supporting documents was to be achieved.

10 In dealing with this issue Counsel for...