O'Connor v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 26 May 2000
• Neutral Citation: 1999 WJSC-HC 6299
• Docket Number: [2000 No. 179 J.R.]
• Court: High Court
• Date: 26 May 2000

1999 WJSC-HC 6299

THE HIGH COURT

No.179 JR/2000

O'CONNOR v. DUBLIN CORPORATION AND BORG DEVELOPMENTS

JUDICIAL REVIEW

BETWEEN

VERA O'CONNOR

APPLICANT

AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OR DUBLIN

RESPONDENTS

AND

BORG DEVELOPMENTS

NOTICE PARTY

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

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

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 IR 128

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(4)

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

BOYNE GROVE FRUIT LTD V J MURPHY DEVELOPMENTS LTD UNREP EX TEMP LAFFOY ( NOTED IN O'SULLIVAN & SHEPHARD IRISH PLANNING LAW & PRACTICE)

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

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

Synopsis

Planning

Planning; judicial review; leave to apply for judicial review; practice and procedure; time limits; planning permission granted by An Bord Pleanála to notice party subject to conditions; certain conditions required proposals to be made to and agreed to by respondent; respondent made two orders agreeing to the proposals; following an ex parte hearing, High Court granted applicant leave to apply for judicial review of the orders; respondent seeking to have order granting leave set aside; whether the orders of the respondent were "decisions" within meaning of s.82, Local Government (Planning and Development) Act, 1963, as amended by s.19(3), Local Government (Planning and Development) Act, 1992; whether application for leave should have been made on notice and within two months of the making of the orders.

Held: Application dismissed.

O'Connor v. Dublin Corporation - High Court: Kelly J. - 26/05/2000 - [2000] 3 IR 420 - [2001] 1 ILRM 58

The applicant had applied for and had been granted leave to seek judicial review on an ex-parte basis in respect of orders made by Dublin Corporation. Both the notice party and respondent contended that leave to seek judicial review should not have been granted and sought to have the leave to seek judicial review set aside. In this regard the respondent and notice party contended that the orders in question were planning decisions and therefore that leave to seek judicial review must comply with the necessary time limits and must be made on notice. The applicant argued that the orders in were in fact signifying agreement by the corporation to submissions made by the developers and were not planning decisions as such. Kelly J held that the orders in question did not appear to amount to planning decisions. Consequently leave to seek judicial review had been properly granted and was not subject to the procedures set out in Local Government (Planning and Development) Act, 1992. The application by the respondent and the notice party was dismissed.

1 Mr. Justice Kelly delivered the 26th day May 2000.

THE APPLICATION

2 The Respondents (Dublin Corporation) and the Notice Party (Borg) apply to set aside an Order made ex parte by Lavan J. on the 7th April 2000.

3 By his Order Laven J. gave leave to the Applicant to commence these Judicial Review proceedings. It is said that the ought not to have done so. By doing so it is contended that he acted in breach of the terms of Section 82 the Local Government (Planning and Development) Act, 1963as amended by Section 19(3) of the Local Government (Planning and Developing) Act, 1992. Those statutory provisions, if they are applicable, preclude the grant of leave ex parte and impose a rigid limitation period of two months which was not, it is argued, complied with in respect of the two orders made by Dublin Corporation which are sought to be impugned.

4 In order to appreciate the basis for this application it is necessary to examine the facts.

HISTORY

5 On the 20th of March, 1991, An Bord Pleanala (the Board) granted planning permission for a major development situate at George's Quay in Dublin. The development comprised, inter alia, the erection of 66,000, Sq. metres of offices and ancillary accommodation in five perimeter blocks surrounding a centre block. The site is 1.92 hectares in size and is bounded by George's Quay, Townsend Street, Luke Street and Moss Street. The Applicant (Ms. O'Connor)is a resident of 26 Townsend Street, Dublin 2.

6 The planning permission was granted subject to 13 conditions. A number of these conditions require the developers to submit drawings, plans and particulars for agreements to the planning authority either prior to the commencement of development, or in some cases, prior to incorporation into the proposed development. One condition, namely condition number 2, requires the developers to submit to the planning authority a proposal for the alternative use and detailed layout/design of a particular area of the development and the obtaining of approval in respect thereof prior to the commencement of construction work on that part of the development.

7 The developer did in fact apply for the approval contemplated under condition number 2 in July of 1991 and such approval was granted on the 28th of November, 1991. Details of that approval were entered on the planning register.

8 It is to be noted that it was only condition number 2 of the second schedule to the planning permission in suit which required the"approval" of Dublin Corporation. The other relevant conditions require the "agreement" of the planning authority. In the case of some of these conditions they provide that in default of planning authority. In the case of some of these conditions they provide that in default of agreement between the developer and the planning authority. In the case of some of these conditions they provide that in default of agreement between the developer and the planning authority the matter may be submitted to the Board for determination. In other conditions there is no express provision as to what is to happen in default of agreement between the developer and Dublin Corporation.

9 On the 7th of January, 2000 a principal officer in Dublin Corporation (to whom the appropriate powers had been delegated by Order of the Deputy City Manager on the 22nd of November, 1999) made an Order directing that the developers be informed that details submitted by them in respect of the conditions which required agreement from Dublin Corporation in accordance with the terms of the planning permission were acceptable to the Corporation. The Order in question, having recited the grant of the planning permission and the various conditions, reads as follows:

"McHugh Consultants have submitted details on 02/12/99 in compliance with the above conditions. In a report dated 22/12/99 Mr. Pat McDonnell, Dublin City Planning Officer states that the details submitted are satisfactory and comply with the requirements of condition nos. 1,3,4,5,6,7,9,10,11,12 and 13 of the planning permission granted by An Bord Pleanala on the 20/03/91 in respect of plan no.170/90 and he recommends that the applicant be so informed. I endorse this recommendation."

10 This recommendation was signed by an assistant principal officer and was the subject matter of the Order made by the principal officer. This Order which directed that the "applicants be informed that the details...are acceptable" is the first of two Orders which are sought to be impugned in these proceedings.

11 The second Order is dated the 11th of February, 2000. Again it is signed by an official of Dublin Corporation to whom the appropriate powers had been delegated by Order of the Deputy City Manager. It also recites the granting of the planning permission in March, 1991 and the various conditions attached thereto. It recites that McHugh Consultants had submitted details in respect of Block A of the development on the 22nd of December, 1999 in compliance with the relevant conditions. It goes on to state that in a report of the 8th of February, 2000 Mr. P.F.A McDonnell, Dublin City Planning Officer stated that the details submitted were satisfactory and complied with the requirements of conditions 1,2,3,4,5,6,7,8,9,10,11,12 and 13. He recommended that the developer be informed of this fact. The recommendation was endorsed by an assistant principal officer of Dublin Corporation. On foot of that the Order was made by the relevant official directing that the developer be informed that he details in question were satisfactory and complied with the conditions.

12 These are the two Orders made by Dublin Corporation which were the subject of the application to Laven J. He gave leave to seek judicial review in respect of them. Amongst the reliefs sought are Certiorari and declaration that declarations that Dublin Corporation acted in excess of jurisdiction in making the Orders in question.

13 It is common case that the application for leave was made to Lavan J. ex pert on the 3rd of April, 2000. It was apparently adjourned to the 4th of April, 2000 and Judgment was delivered on the 7th of April, 2000. On the 11th of April, 2000 Ms. O'Connor served a notice of motion dated that day upon Dublin Corporation seeking the reliefs in respect of which leave had been given.

THE BASIS FOR THIS APPLICATION

14 Dublin Corporation and Borg contend that the Orders made by Dublin Corporation on the 7th of January, 2000 and the 11th of February, 2000 are "decisions" within the meaning of Section 82 of the Local Government (Planning and Development) Act, 1963as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992. If such is the case the validity of the Orders made by Dublin Corporation cannot be questioned save...