Corbally Homes Ltd and Others v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice John Hedigan |
| Judgment Date | 27 February 2008 |
| Neutral Citation | [2008] IEHC 46 |
| Court | High Court |
| Docket Number | No. 67 J.R./[2007] |
| Date | 27 February 2008 |
[2008] IEHC 46
THE HIGH COURT
BETWEEN
AND
AND
PLANNING & DEVELOPMENT ACT 2000 S50
O'KEEFFE v AN BORD PLEANALA 1993 IR 39
ASSOCIATED PROVINCIAL PICTUREHOUSES LTD v WEDNESBURY CORP 1948 1 KB 223
CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS 1982 1 WLR 1155
PLANNING & DEVELOPMENT ACT 2000 S34
PLANNING & DEVELOPMENT ACT 2000 S34(1)
PLANNING & DEVELOPMENT ACT 2000 S34(4)(a)
KILLINEY & BALLYBRACK LTD v MIN FOR LOCAL GOVT 1978 112 ILTR 9 1978 ILRM 78
FPH PROPERTIES, STATE v BORD PLEANALA 1987 IR 698
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(a)
ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446
PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S34(4)
Planning & Development law - Judicial review - Certiorari - Condition on planning permission - Ultra vires - Flooding condition - Unreasonableness - Review powers of Court - Special area of conservation - Planning and Development Act 2000
Facts: The applicants sought to challenge a decision of the respondent to grant planning permission for a development subject to a condition to keep a low lying area free from development. The issue arose as to whether the condition was unreasonable or ultra vires and whether Wednesbury unreasonableness was established.
Held by Hedigan J. that the condition imposed was intended to prevent flooding in an area of environmental concern. Unreasonableness as a matter of law had not been made out and the reliefs sought would be refused.
Reporter: E.F.
delivered on the 27th day of February, 2008.
These proceedings seek to challenge a decision made by An Bord Pleanála (The Board) on the 6/12/06 (Reference PL 09.216802) granting planning permission for the construction of a new mixed development of two hundred and twenty nine residential dwellings at what is described by the applicants as "the Island and Townland of Skirteen, Portlaoise Road, Monasterevin, Co. Kildare". The applicants challenge condition 12 attached thereto on the basis that it isultra vires and unlawful. It is accepted that the relevant legislation is the Planning and Development Act 2000 and reliance is not placed on the Planning and Development (Strategic Infrastructure) Act 2006.
A previous planning permission was granted in respect of a larger site of which the site herein forms a part. This was overturned on appeal for two reasons;
(i) There would be an adverse effect on a candidate special area of conservation (cSAC). A cSAC refers to lands that the Minister for the Environment, Heritage and Local Government proposes to nominate as such an area under the Habitats Directive.
(ii) There would be an unacceptable impact on the character of the local landscape which forms an important part of the setting of Monasterevin and on the setting of the adjacent Charter School which is an eighteenth century protected structure.
In January 2005 the applicants made a second application. This application, the subject of these proceedings, was on a smaller scale. No development was proposed for a plot of land to the northeast of the new proposed development known and referred to herein as "The Monasterevin lands". These lands at this stage were still designated as a cSAC.
While this application was before the Planning Authorities, this cSAC was reduced to a strip of 2.5 metres approximately in width along the banks of the river. The rest of the Monasterevin lands were therefore free from this status.
The above application for planning permission was granted subject to a condition to protect the cSAC. This planning permission was appealed to the Board and it granted permission but subject to condition 12 which stated:-
12. "The low lying area outside the Skirteen Townland boundary and between the boundary and the river Barrow shall be kept free from development, notwithstanding its zoning in the local area plan.
In the interest of visual amenity and nature conservation, as this area forms part of the flood plain of the river Barrow and part of the setting of the town of Monasterevin".
The result is that the applicants have the permission they sought on the Skirteen lands but subject to a condition that effectively sterilises the Monasterevin lands of which they are also the owners. The applicants argue that the condition imposed was not expedient for the purposes of or in connection with the development authorised. They further argue that the condition is unreasonable, disproportionate and unduly burdensome because it sterilises the lands in question, i.e. the Monasterevin lands. In the event the Court agrees with them, the applicants do not wish the whole permission to fall but simply wish that condition 12 would be severed so that the permission would remain but without the restrictive condition on the Monasterevin lands. The Monasterevin lands were and remain zoned for residential development.
(i) An order ofcertiorari quashing condition 12 only of the decision of the respondent dated the 6th December, 2006 granting planning permission for the construction.
(ii) In the alternative a declaration that condition 12 of the decision isultra vires the respondent and, if necessary, an order remitting the matter to the respondent for reconsideration.
The law applicable to such an application as this is set out in the judgment of Finlay C.J. inO'Keeffe v. An Bord Plenála [1993] I.R. 39.
"In dealing with the circumstances under which the Court could intervene to quash the decision of an administrative officer or Tribunal on grounds of unreasonableness or irrationality, Henchy J. in that judgment State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642) set out a number of such circumstances in different terms."
They are:
(1) It is fundamentally at variance with reason and common sense.
(2) It is indefensible for being in the teeth of plain reason and common sense.
(3) Because the Court is satisfied that the decision maker has breached his obligation whereby he "must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision"…
Finlay C.J. said that he was satisfied that these three different methods of expressing the circumstances under which the Court can intervene are not in any way inconsistent with one and other, but rather compliment each other and constitute not only a correct but a comprehensive description of the circumstances under which the Court may, according to our law, intervene in such a decision on the basis of unreasonableness or irrationality.
In the case cited above, Henchy J. quoted with approval the statement of Lord Greene M.R. in"Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223 where at page 230 he stated:
"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere.....; but to prove a case of that kind would require something overwhelming".
Griffin J. in theState (Keegan) v. Stardust Compensation Tribunal agreed with the principles laid down by Henchy J. and quoted with approval the speech of Lord Brightman in R .v. The Chief Constable of North Wales Police ex parte Evans [1982] 1 W.L.R. 1155 where he stated at page 1160:
"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power..... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made".
Finlay C.J. inO'Keeffe v. An Bord Pleanála agreed with the above statement He then synopsized the law at page 71 as follows;
"is clear from these quotations that the circumstances under which the Court can intervene on the basis of irrationality with the decision maker involved in an administrative function are limited and rare. It is of importance and, I would think, of assistance to consider not only as was done by Henchy J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, the circumstances under which the Court can and should intervene, but also in brief terms and not necessarily comprehensively, to consider the circumstances under which the Court cannot intervene."
The Court cannot interfere with the decision of an administrative decision making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.
These considerations, described by Counsel...
To continue reading
Request your trial