Concepta Goss and Others v Joseph O'Toole and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] IEHC 570 |
| Court | High Court |
| Date | 17 December 2013 |
[2013] IEHC 570
THE HIGH COURT
BETWEEN
AND
PLANNING & DEVELOPMENT ACT 2000 S160
LOCAL GOVT ACT 2001 S183
ROADS ACT 1993 S73
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 5 PART 2 PARA 10(B)(iv)
PLANNING & DEVELOPMENT ACT 2000 S34(12)
PLANNING & DEVELOPMENT (AMDT) ACT 2010 S23(C)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 5 PART 2 PARA 10(B)
CMSN v IRELAND 2008 ECR I-4911 2009 ENV LR D3
EEC DIR 85/337 ART 1
EEC DIR 85/337 ART 2
PLANNING & DEVELOPMENT ACT 2000 S4(1)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART 8
MORRIS v GARVEY 1983 IR 319 1982 ILRM 177 1982/7/1253
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(2)
WICKLOW CO COUNCIL v FOREST FENCING LTD T/A ABWOOD HOMES & SMULLEN 2008 1 ILRM 357 2007 60 12933 2007 IEHC 242
PLANNING & DEVELOPMENT ACT 2000 S162
PLANNING & DEVELOPMENT ACT 2000 S162(3)
DUBLIN CORP v O'DWYER BROS (MOUNT ST) LTD UNREP KELLY 2.5.1997 1997/8/2765
SMYTH v DAN MORRISSEY IRL LTD UNREP HEDIGAN 25.1.2012 2012/42/12695 2012 IEHC 14
LEEN v AER RIANTA CPT 2003 4 IR 394 2003/30/7167
WICKLOW CO COUNCIL v FORTUNE UNREP HOGAN 4.10.2012 2012/46/13830 2012 IEHC 406
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
CORK CO COUNCIL v SLATTERY PRE-CAST CONCRETE LTD & SLATTERY UNREP CLARKE 19.9.2008 2008/8/1581 2008 IEHC 291
PLANNING AND ENVIRONMENTAL LAW
Unauthorised use
Application for injunction restraining use of unauthorised car park development - No planning permission - Vehicular access - Traffic volumes - Public right of way extinguished - Service road constructed - Danger to pedestrians - Safety - Impact on architectural and archaeological heritage - Environmental impact assessment or statement not carried out - River location - Application for retention planning permission - Claim of hardship - Breach of planning laws - Delay - Stay - Benefits conferred by development - Tree preservation order - Discretion of court - Whether to exercise discretion to restrain development - Whether applicants delayed - Whether environmental impact assessment required - Whether development dangerous - Whether intentionally in breach of planning laws - Commission v Ireland (Case C- 215/06) [2008] ECR I-4911; Morris v Garvey [1983] 1 IR 319; Wicklow County Council v Forest Fencing Limited [2007] IEHC 242, [2008] 1 ILRM 357; The Right Honourable the Lord Mayor v O'Dwyer Brothers (Mount Street) Limited, (Unrep, Kelly J, 2/5/1997); Smyth v Dan Morrissey Ireland Ltd [2012] IEHC 14, (Unrep, Hedigan J, 25/1/2012); Leen v Aer Rianta cpt [2003] 4 IR 394; Wicklow County Council v Fortune [2012] IEHC 406, (Unrep, Hogan J, 4/10/2012) and Cork County Council v Slattery Pre-Cast Concrete Limited [2008] IEHC 291, (Unrep, Clarke J, 19/9/2008) considered - Planning and Development Regulations 2001 (SI 600/2001) - Planning and Development Act 2000 (No 30), ss 4(1), 160 and 162 - Local Government Act 2001 (No 37), s 183 - Roads Act 1993 (No 14), s 73 - Planning and Development (Amendment) Act 2010 (No 30), s 23(12) - Local Government (Planning and Development) Act 1976 (No 20), s 27(2) - Directive 85/337 EEC, arts 1 and 2 - Application granted (2012/432MCA - Hedigan J - 17/12/2013) [2013] IEHC 570
Goss v O'Toole
This case concerned the construction of an unauthorised car park in the centre of Tuam, Galway, by the first and second respondents, Joseph O”Toole and Helen O”Toole. The third respondent, O.T. Investments Limited, was a company under the direction of the first and second respondents. The applicants were concerned residents of Tuam. The applicants applied for injunctive relief under section 160 of the Planning and Development Act 2000 (the 2000 Act). This section stipulated that ‘where an unauthorised development has been, is being or is likely to be carried out or continued’, the Court had the power to ‘require any person to do or not to do, or to cease to do…anything that the Court considers necessary’ to ensure that the unauthorised development is not continued; that the land is restored to its prior condition; and that any development conforms to any permissions granted.
On the 10 th of August 2007, the respondents applied to Galway County Council (the Council) for planning permission for a mixed use development which was granted. On the 11 th of January 2012, however, Mr. O”Toole announced that the development was on hold. He ultimately didn”t go forward with it but proceeded to build a car park for which no permission was granted. In March 2012, residents of Tuam raised concerns that the car park was a dangerous means of accessing the nearby school and the rest of Palace Grounds. In response, the respondents constructed a service road through the car park for which no planning permission was sought. The applicants complained about the unauthorised nature of the developments to the Council who served notices on the 16 th of October 2012 to the respondents. The 30 day period for adherence to the notices expired and the applicants brought proceedings. An application for retention permission was submitted on behalf of the respondents.
The applicants argued that the car park posed a danger to pedestrians using the route—especially children. They also contended that the solution of the respondents to build an unauthorised service road with narrow and ‘virtually unusable’ footpaths was inadequate. They asserted that the development impacted the ‘architectural and archaeological heritage’ of the town and that retention planning permission was not an available remedy for the respondents. It was also argued that the respondents breached planning laws—the unauthorised development had no planning permission whatsoever.
The Court accepted the argument that the development impacted on the architectural and archaeological heritage of Tuam, that the route was dangerous for pedestrians and that all of this was conducted in breach of planning laws. The Court rejected the respondent”s contention that this breach was unintentional. The Court considered that Mr. O”Toole had ‘considerable experience of the planning laws’ and a modus operandi of constructing unauthorised developments and subsequently seeking retention. Noting that exceptional circumstances had to be present before retention should be granted, the Court refused the respondent”s application.
The court therefore made an order restraining all use of the car park but put a stay on the order until the first week of January.
JUDGMENT of Mr. Justice Hedigan delivered on the 17th day of December 2013
1. This is an application for injunctive relief under s.160 of the Planning and Development Act 2000. The applicants in their pleadings seek:-
(i) An order restraining the respondents from carrying out (or continuing to carry out) any development (other than exempted development) on lands situate at Town Parks, Tuam County Galway and the Townland of Demesne, Tuam, County Galway;
(ii) An order restraining the respondents from carrying out any development on the lands owned by Galway County Council at Town Parks, Tuam;
(iii) An order restraining the respondents from using/continuing to use the lands and/or any structure at Town Parks as a commercial split level car park;
(iv) An order restraining the respondents from having vehicular use and access to the service road that links Bishop Street, Tuam with the inner relief road at Tuam Town;
(v) An order directing the respondents to remove an unauthorised split level car park and all unauthorized ancillary structures;
(vi) An order compelling the respondents to remove the unauthorized service road that links Bishop Street, Tuam, with the inner relief road and all unauthorised structures erected thereon;
(vii) An order directing the respondents to restore the lands within 30 days of the date of this order to their condition before the unauthorised development;
(vii) An order directing the respondents to pay to the applicants all costs.
The applicants however, at this moment, confine themselves to seeking an order restraining the use of the split level car park.
2. The applicants describe themselves as concerned residents of Tuam, County Galway. The third named respondent is a company incorporated on the 25 th July, 1974, bearing Registration Number 48516 and having its registered office at Bishop Street, Tuam, County Galway. The first and second named respondents operate the Supervalu supermarket in Tuam and are the sole directors of the third named respondent. The second named respondent is the company Secretary.
2 3.1 These proceedings pertain to the construction of an unauthorised car park of 7905 m 2 (hereinafter the "split level car park") with 240 spaces located in the centre of Tuam beside the respondent's SuperValu supermarket. The car park is adjacent to the supermarket and is accessed from the north end by a spur road from the inner relief road. It may also be accessed from the south via the service road which was also built without planning permission. The car park generates a great deal of traffic with vehicles constantly moving and turning within it.
3 3.2 On 10 th August, 2007, the respondents applied to Galway County Council for planning permission for a mixed use development of an area of 29,540m 2to be located on 3.6 hectares at Town Parks, Tuam. This application was accompanied by an Environmental Impact Statement (hereinafter "EIS") and an Environmental Impact Assessment (hereinafter "EIA"). Permission was granted which was appealed to An Bord Pleanála by Tuam Tennis Club. An Bord Pleanála...
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