O'Connor v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Justice O'Neill
• Judgment Date: 03 October 2000
• Neutral Citation: [2000] IEHC 68
• Court: High Court
• Date: 03 October 2000

[2000] IEHC 68

THE HIGH COURT

No.179 JR/2000

O'CONNOR v. DUBLIN CORPORATION

BETWEEN

VERA O'CONNOR

APPLICANT

AND

THE RIGHT HONORABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

RESPONDENTS

AND

BORG DEVELOPMENTS LIMITED

NOTICE PARTY

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(h)(i)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(h)(ii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(h)(iii)

EEC DIR 85/337

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(9)(C)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(9)(E)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

GREGORY V DUNLAOGHAIRE-RATHDOWN CO COUNCIL UNREP GEOGHEGAN 16.7.1996 1998/20/7705

GREGORY V DUN LAOGHAIRE-RATHDOWN CO COUNCIL UNREP SUPREME 28.7.1997 1998/20/7685

ABENGLEN PROPERTIES, STATE V DUBLIN CORPORATION 1984 IR 381

SOUTH EAST ASIA FIRE BRICKS V NON METALLIC UNION 1981 AC 363

BYRNE V WICKLOW CO COUNCIL UNREP KEANE 3.11.1994

BOLAND V BORD PLEANALA 1996 3 IR 435

XJS INVESTMENTS LTD, IN RE 1986 IR 750

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

SMYTH V COLGAN 1999 1 IR 548

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(10)(a)

LANCEFORT LTD V BORD PLEANALA (NO 2) 1999 2 IR 270

Synopsis:

Planning

Planning; planning permission had been granted; conditions had been attached to granting of permission whereby notice party had to agree to a variety of matters with respondent before final scope of permission settled; notice party had made two submissions to respondent, both of which had been agreed to be in compliance with the planning permission by respondent; applicant seeks to challenge this agreement; whether agreements attached had been ultra vires decision of An Bórd Pleanála; whether correct approach to interpretation and conditions attached to planning permission is to determine whether or not respondent correctly construed meaning of conditions or whether correct to apply test of irrationality and unreasonableness on part of respondent in reaching its decision; whether environmental impact statement required; whether applicant entitled to consultation on agreement; whether ultra vires conditions can be severed from planning permission

Held: Ultra vires conditions can be severed from planning permission; declaration granted to applicant that certain conditions ultra vires powers of respondent.

O'Connor v. Dublin Corporation - High Court: O'Neill J. - 03/10/2000

The notice party planned to complete a development on foot of planning permission already granted. The notice party sought to have certain alterations to the proposed development approved by the respondent. The respondent signified that the alterations proposed were within the parameters of the original planning permission. The applicant brought proceedings claiming, inter alia, that the alterations were ultra vires and outside the scope of the original planning permission. O’Neill J held that the correct test to be applied was whether the approach of the planning authority in approving the alterations was correct in law and was not that of the reasonable test. Some of the changes advocated by the notice party were not permissible under the permission granted. The alterations that were permissible would be severed from impugned alterations. The applicant had the requisite locus standi to take proceedings and a declaration would be granted to the effect that the agreement of the respondent to certain alterations proposed by the notice was ultra vires

the powers of the respondent.

1 Justice O'Neill delivered the 3rd day October 2000.

2 By Order of the 7th of April 2000 Lavan J granted leave to the Applicant to apply by way of Judicial Review from the reliefs set forth at paragraph D I, II, III, IV, IX, X, XI, and XII, on the grounds set for at paragraphs E (1) to (25) inclusive of the Applicants statement grounding the Application for a Judicial Review dated the 3rd of April 2000.

3 The reliefs in question were in essence as follows:

4 i "DI Certiorari way of Application for Judicial Review of the decision and Order of the Planning Authority of the Respondents bearing reference P0024 and dated on or about 7th of January 2000.

5 II Certiorari by way of an Application for a Judicial Review of the decision and Order of the Planning Authority of the Respondent bearing reference P0619 and dated on or about the 11th day of February 2000.

6 III A declaration that the Planning Authority of the Respondents acted without power in excess of jurisdiction and/or ultra vires the decision of An Bord Pleanala bearing reference PL29/5/84226 in making Orders and decisions identified as P0024 and dated on about the 7th day of January 2000 and P0619 and dated on about the 11th day of February 2000.

7 IV A declaration by way of an Application for a Judicial Review that the new and redesigned facade and elevational treatment of blocks A, E and F incorporated into the proposed development permitted that the decision of An Bord Pleanala dated 20th of March 1991 bearing reference PL29/5/84226 by way of compliance submission made to the Respondents and by of consequent compliance Orders made by the Respondents constitute an unlawful material alteration to the proposed development limited and defined by the said decision of An Bord Pleanala".

8 By his said Order of the 7th of April 2000 Lavan J joined Borg Developments Limited as a Notice Party to the proceedings.

BACKGROUND

9 The Applicant in these proceedings Vera O'Connor was at all material times the Chairperson of the TLMG Tenants Association which is an unincorporated association representing the residents of Townsend Street, Luke Street, Moss Street and Gloucester Street in the City of Dublin. The Notice Parties are in the process of carrying out a very large property development on a site which is bounded by George's Quay on the North, Moss Street on the East, Townsend Street on the South and Luke Street on it's Western side. The area of the site of this development extends to 1.92 hectares. The development in question is the construction of offices in a number of blocks, together with a small residential component comprising of 8 apartments. The development is by any standards a very large one and when complete will provide some 66,000 sq. meters of office accommodation which is approximately 700,000 sq. feet. This office accommodation is arranged into six blocks, five of these being perimeter blocks namely B,C,D,E and F and a large high rising cluster block namely block A which will stand in the centre or heart of the development. The Applicant herself lives on Townsend Street about 30 yards from the proposed development. She has lived in the Townsend Street area all of her life. She is now a retired machinist.

10 The site of this development is clearly a very important and prominent site having regard to its location and size and its development has been the subject matter of a number planning applications and a good deal of local controversy and objection over the past 20 years. The Applicant and the residents of the area where the development is to be sited have consistently objected to high rise office development on the site because of the shadowing effect of tower blocks on their community and also to mono use office blocks being built on this site, so close to an inner-city Dublin community, because of the anti social nature of mono office use.

11 On the 20th of March 1991 under its reference PL29/5/84226 An Bord Plèànala granted planning permission on foot of a planning application bearing the Dublin County Borough planning register reference number 1703/90 to Irish Life Assurance Plc for a development comprising the erection of 66,000 sq. metres of offices and ancillary accommodation in five permeter blocks (B,C,D,E and F) each four stories high above podium level with a set back fifth floor plus plant rooms, an 11 storey central block plus four levels of plant rooms (block A), covered Atrium, conference/gymnasium all over a single level basement car park including access and eight apartments and the demolition of eight apartments on this site. The centre block, block A is much higher than the perimeter blocks extending up to 11 stories. The permission was subject to a number of conditions set out in the second schedule and unusually the duration of the permission is for a period of ten years from the 20th of March 1991.

12 The development of this site pursuant to this permission preceded in a piecemeal fashion, blocks B,C and D only, being built. The fact that the high rise centre block, block A was not preceded with, seems to have encouraged the Applicant and probably other residents of the area to believe that the developers were not proceeding with the high rise portion of the development. However, in 1998, the Notice Parties who had by this stage acquired the undeveloped portion of the site, applied for planning permission to the Respondents for permission to revise the development to include a 24 storey high central block. Permission for this development was granted by the Respondents, but was appealed to An Bord Plèanala by the TLMG Tenants Association and other community groups. An Bord Plèanala by its decision made on the 21st of September 1999 refused permission for the revisions sought to the development in respect of which permission was granted on the 20th March 1991, but granted permission for the retention of blocks B,C and D which were already constructed.

13 Following upon this decision of An Bord Plèanala the Notice Party decided to complete the development in accordance with the...