Conroy v Craddock and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 31 July 2007
• Neutral Citation: [2007] IEHC 336
• Docket Number: No. 85 MCA/2006
• Court: High Court
• Date: 31 July 2007

[2007] IEHC 336

THE HIGH COURT

COMMERCIAL

No. 85 MCA/2006

CONROY v JOHN CRADDOCK LTD & KILDARE CO COUNCIL

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160

OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN/

PASCAL CONROY

APPLICANT

AND

JOHN CRADDOCK, KILDARE COUNTY COUNCIL, MARY CRADDOCK AND JOHN CRADDOCK LIMITED

RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S160

SWEETMAN v SHELL E & P IRELAND LTD UNREP SMYTH 14.3.2006 2006 IEHC 85

O'CONNOR v DUBLIN CORPORATION UNREP O'NEILL 3.10.2000 2000/14/5399

O'CONNELL v DUNGARVAN ENERGY LTD UNREP FINNEGAN 27.2.2001 2001/18/5119

MOUNTBROOK HOMES LTD v OLDCOURT DEVELOPMENTS LTD UNREP PEART 22.4.2005 2005 IEHC 171

BOLAND v BORD PLEANALA 1996 3 IR 435

PLANNING & DEVELOPMENT ACT 2000 S34(5)

EIRCELL LTD v BERNSTOFF UNREP BARR 18.2.2000 2000/6/2314

DUBLIN CORPORATION v MULLIGAN UNREP FINLAY 6.5.1980 1980/5/969

AVENUE PROPERTIES LTD v FARRELL HOMES LTD 1982 ILRM 21

MORRIS v GARVEY 1983 IR 319

PLANNING AND ENVIRONMENT

Enforcement

Planning permission - Conditions - Whether substantial compliance with planning permission - Discretion to grant relief - Factors to be considered - Motivation of applicant in bringing proceedings - Planning and Development Act 2000 (No 30), s 160 - Sweetman v Shell [2006] IEHC 85 (Unrep, Smyth J, 14/3/2006) considered - Relief refused (2006/85MCA - Dunne J - 31/7/2007) [2007] IEHC 336

Conroy v Craddock

Judgment of

Ms. Justice Dunne

delivered on the 31 - day of July - 2007

1 This is an application pursuant to s. 160 of the Planning and Development Act,2000 as amended. The proceedings relate to a development on lands known as Kilcullen Business Campus, Kilcullen, County Kildare, ("the site"). The site is owned by the second named respondent. Kildare County Council ("the Council"). The development of the site arose out of a policy by the Economic Section of the Council to promote the establishment of enterprise and business within County Kildare. The site is a development of eight business units of varying sizes in a single development with common infrastructure and architecture. The construction of the business park is provided for by means of a lease and agreement for lease issued by the Council and a co-owners' property and infrastructure agreement.

2 On 13^th November, 2002 the Council in its capacity as planning authority granted permission (ref. 02/1195) to Amey Irish Facility Managers Limited ("Amey") for development on the site of the business campus. Amey was appointed by the Council on 31^st August, 2001 as project managers for the development of the site. Planning permission was granted subject to 41 conditions.

3 The applicant herein holds an agreement for a lease in respect of unit 4 in the site, the first and third named respondents hold an agreement in respect of unit 5 and the fourth named respondent holds an agreement in respect of unit 6. A co-owners' agreement was entered into on 19^th April, 2004 by each of the prospective leaseholders whereby they agreed to engage a builder to carry out certain infrastructural works on the site. Amey, the applicant for the planning permission, was appointed to manage the project of construction on the site and Amey engaged the fourth named respondent to carry out certain infrastructural works on the site. It was a term of the co-owners' agreement that "the works shall be constructed in full accord with the planning permission and to the satisfaction of the Council".

4 The applicant has now brought proceedings pursuant to s. 160 of the Planning and Development Act,2000, seeking to restrain the respondents, their servants or agents from carrying out development on the site otherwise than in accordance with planning permission 02/1195 and the conditions attached thereto and an order pursuant to s. 160 directing the respondents, their servants or agents, to carry out development on the site only in accordance with conditions 1 and 5 of the planning permission and further directing the respondents, their servants or agents, to comply with conditions 3, 4, 6. 7, 10, 11, 12, 13, 16, 25, 26, 27 and 40 of the planning permission. Following the commencement of the proceedings and the exchange of affidavits between the parties an agreed issue paper was prepared in accordance with the directions of the High Court (Mr. Justice Kelly) dated 5^th February, 2005. I now propose to deal with the issues raised as identified in the issue paper referred to.

5 The first point to note is that although condition 5 deals with units 5, 6 and 7, no issue was raised by the applicant in respect of unit 7. Complaint was made only in respect of units 5 and 6. In this context it should be noted that the owners of unit 7, David and Louise Magee, were not joined as parties to the proceedings. For reasons which I will return to briefly at the conclusion of this application, it should be noted that the applicant at the outset indicated that it was not pursuing any complaint in respect of unit 7 but was only pursuing the complaint in respect of units 5 and 6.

6 It is necessary to refer to condition 5 at this stage. It provides as follows:

"Before commencement of development the applicant shall submit, for the written consent of the planning authority, a revised site layout plan providing for a reduction in the finished floor level of unit 5, 6 and 7.

Reason: To reduce the visual impact of those units on the M9 motorway in the interests of visual amenity and proper planning and development of the area and to allow the planning authority assess the proposed changes."

7 There is no dispute that Amey, the applicant for planning permission, did not in a literal sense comply with condition 5 in that a revised site layout plan providing for a reduction in the finished floor level of units 5, 6 and 7 was never submitted to the Council before the commencement of development. It is also self evident that, as the development has commenced, that condition cannot ever be complied with.

prima facie

8 In the application originally submitted seeking planning permission, the finished floor levels for units 5, 6 and 7 were 121 metres, 119.5 metres and 119 metres respectively. Subsequently revised floor levels were submitted for the approval of the Council and ultimately by letter 1^st March, 2006, the. Council stated that it was satisfied with the details submitted in respect of the floor levels being 122 metres, 120.5 metres and 119 metres respectively. It was submitted on behalf of the applicant that the floor levels now approved clearly demonstrate not a reduction in the floor levels but rather an increase. Accordingly, it was submitted that a prima facie breach of condition 5 has been established.

9 It was submitted on behalf of the first, third and fourth named respondents that there was not aprima, facie breach of condition 5 of the original planning permission. He referred to a letter dated the 6^th November 2002 from Aidan Butler of Lorcan Greene, Associates, on behalf of Amey in which it was stated "The revised finished floor levels on Units 5, 6 and 7 shall be agreed with the Planning Authority. Engineer's drawing 887-2-23 shows three cross-sections through the units an the motorway demonstrating that the height of the units do not adversely impact on the line of sight of traffic on the motorway. Drawings will be submitted as necessary." Although that drawing showed the units with a finished floor level as in the original plans, the point made is that it shows that the buildings did not interfere with or impact on traffic on the motorway. Emphasis was placed on the purpose of Condition 5. The object was not to remove any visual impact but to reduce it. He submitted that this had been achieved. These respondents also relied upon the decision of the planning authority to approve compliance with condition 5 as referred to in the letter of 1^st March, 2006.

10 The second named respondent in dealing with this issue also submitted that there had been noprima facie breach of condition 5. In its submission the Council placed significant reliance on the reason given for condition 5. It was submitted that the drawings submitted by Amey on 24^th January, 2006 for the approval of the Council demonstrated that the increased heights would not materially impact on the environment or result in a visual impact that would be in breach of condition 5. Emphasis was also placed on compliance with conditions 6 and 7 in this regard. Condition 6 provides:

"6. Before commencement of development the applicant shall submit, for the written consent of the planning authority, a revised landscaping and planting scheme providing for the provision of an increased level of landscaping along the boundaries abutting the M9 motorway and the regional road R488. This plan shall include, if necessary, the provision of berming to screen the development and the reduction in size of all affected units to accommodate this berm. This landscaping plan shall be prepared by a suitably qualified landscape architect/horticulturalist acceptable to the planning authority. Before commencement of development the applicant shall submit, for the written consent of the planning authority, a programme for the implementation of the landscaping scheme."

11 Reason: In order to ensure that the existing visual amenities of the area are maintained and enhanced, and that the proposed development is adequately screened so as to integrate it into its surroundings.

12 7. Before commencement of development the applicant shall submit, for the written consent of the planning authority, revised plans and elevations to comply with the requirements of condition No. 6 above.

13 Reason: To allow the planning authority to assess the development and in the interests of proper planning and development."

14 Accordingly, having regard to all of...