Cork City Council v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kelly
• Judgment Date: 01 June 2006
• Neutral Citation: [2006] IEHC 192
• Date: 01 June 2006
• Docket Number: [2006

CORK CITY COUNCIL v BORD PLEANALA

COMMERCIAL

JUDICIAL REVIEW

BETWEEN

CORK CITY COUNCIL

APPLICANT

and

AN BORD PLEANÁLA

RESPONDENT

and

O'FLYNN CONSTRUCTION LIMITED

NOTICE PARTY

[2006] IEHC 192

[No. 124JR/2006]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Condition - Interpretation thereof - Condition requiring financial development contribution - Development plan - Interpretation thereof - Development contribution scheme - Whether car park excluded from definition of âÇÿgross floor area'- Whether gross floor area determined from external dimensions of building - Whether definition of âÇÿgross floor space' in Regulations constrains planning authority making a scheme under Act of 2000 and excludes incidental or ancillary car parking space from ambit of scheme - Whether in excluding car parking spaces for purposes of calculating contribution payable by developer under scheme respondent misapplied scheme- Whether terms of development contribution scheme properly applied in grant of planning permission - Wicklow Heritage Trust Ltd v Wicklow County Council (Unrep,McGuinness J, 5/2/1997), Gregory v DunLaoghaire-Rathdown County Council (Unrep,Geoghegan J, 16/7/1996; SC, 28/7/1997) and O'Connor v Dublin Corporation (No 2)(Unrep, O'Neill J, 3/10/2000) applied -Planning and Development Regulations 2001(SI 600/2001), art 3 - Planning and Development Act 2000 (No 30), s 48 - Relief granted (2006/124JR - Kelly J - 1/6/2006) -[2006] IEHC 192; [2007] 1 IR 761; Cork City Council v An Bord Pleanála

Cork City Council sought to quash a decision of the respondent, the effect of which was to reduce from Eur4,316,208 to Eur2,606,048 the amount payable by a developer to the Council pursuant to a condition of a planning permission.

Held by Kelly J. in quashing the decision of the respondent that in reaching its decision the respondent misinterpreted the scheme, misapplied its functions and was wrong in law in so doing.

Reporter: R.W.

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 3

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S48(1)

PLANNING & DEVELOPMENT ACT 2000 S48(2)

PLANNING & DEVELOPMENT ACT 2000 S48(2)(A)

PLANNING & DEVELOPMENT ACT 2000 S48(2)(B)

PLANNING & DEVELOPMENT ACT 2000 S48(3)

PLANNING & DEVELOPMENT ACT 2000 S48(3)(B)

PLANNING & DEVELOPMENT ACT 2000 S48(3)(C)

PLANNING & DEVELOPMENT ACT 2000 S48(4)

PLANNING & DEVELOPMENT ACT 2000 S48(5)

PLANNING & DEVELOPMENT ACT 2000 S48(6)

PLANNING & DEVELOPMENT ACT 2000 S48(7)

PLANNING & DEVELOPMENT ACT 2000 S48(8)

PLANNING & DEVELOPMENT ACT 2000 S48(9)

PLANNING & DEVELOPMENT ACT 2000 S48(10)

PLANNING & DEVELOPMENT ACT 2000 S37(1)(B)

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

TENNYSON v DUN LAOGHAIRE CORPORATION 1991 2 IR 527

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

WICKLOW HERITAGE TRUST LTD v WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

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

KENNY v BORD PLEANALA 2001 1 IR 565

O'REILLY WHELAN & O'DWYER v O'SULLIVAN & DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP SUPREME 26.2.1997 1997/11/3523

O'REILLY v O'SULLIVAN & DUN LAOGHAIRE RATHDOWN COUNCIL UNREP LAFFOY 25.7.1996 1996/14/4427

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

MULHOLLAND & KINSELLA v AN BORD PLEANALA 2006 1 ILRM 287

O'DONOGHUE v AN BORD PLEANALA 1991 ILRM 750

PLANNING & DEVELOPMENT ACT 2000 S48(10)(B)

1 JUDGMENT of Mr. Justice Kelly delivered the 1st day of June, 2006

Introduction

2 Cork City Council (the council) seeks to quash a decision of the respondent (the board) made on 2nd December, 2005. The effect of the decision was to reduce from €4,316,208 to €2,606,048 the amount payable by the notice party (the developer) to the council pursuant to a condition of a planning permission granted by it on 6th July, 2005.

History

3 On 8th October, 2004, the developer applied to the council for planning permission for a mixed use residential, office and retail development on a site measuring 1.24 hectares. The site was bounded by Eglinton Street, Albert Street and Old Station Road, Cork.

4 The development was planned to comprise buildings of 6 to 8 storeys above street level apart from what is described as a landmark building in the south western corner of the site which will rise to 17 storeys above street level. Parking for 553 cars, mainly in a double level basement but also at ground level within the building, was provided for.

5 On 6th July, 2005, the council granted permission for the development subject to 25 conditions.

6 It is the 24th of those conditions and it alone which was the subject of an appeal to the board and which in turn has led to this litigation.

Condition Number 24

7 The condition reads as follows:-

"Prior to the commencement of the proposed development, the developer shall pay a contribution to Cork City Council in respect of the following classes of public infrastructure and facilities benefiting development in the City of Cork and that is provided or that is intended to be provided by or on behalf of Cork City Council:"

2 Class 1 — Roads, transportation, infrastructure and facilities,

3 Class 2 — Water and drainage infrastructure and facilities,

4 Class 3 — Parks, recreation, amenity and community facilities.

8 The present value of the contribution as determined under the General Development Contribution Scheme made by Cork City Council on 12th January, 2004, (the GDC Scheme) is €4,316,208 subject to indexation in accordance with the Consumer Price Index prevailing at the date of payment and subject further to such exemptions or reductions as apply to the proposed development having regard to the provisions of Table 5 of the GDC Scheme and to such partial refund of 64% of the contributions paid in respect of first time buyers of residential property, not exceeding 108 square metres, as set out in Table 5 of the GDC Scheme."

9 The reason given for applying this provision was stated to be as follows:-

"To comply with the General Development Contribution Scheme which was adopted by Cork City Council on 12th January, 2004 and in the interests of proper planning and sustainable development of the area."

The Appeal

10 On 28th July, 2005, the developer appealed against condition 24 of the permission.

11 In the course of the appeal letter it argued that the term "gross floor area" as used in the GDC Scheme should be synonymous with the term "gross floor space" as used and defined in Article 3 of the 2001 Planning Regulations (the regulations). It sought a decision from the board to amend the contribution required under condition 24 by recalculating the amount based on "gross floor space" as defined by Article 3 of the regulations. The effect of that "would mean excluding the two levels of underground parking and the covered parking area and service yard at ground floor level".

12 The appeal was decided by the board on 2nd December, 2005.

13 In its decision the board concluded that the terms of the GDC Scheme for the area had not been properly applied by the council in respect of condition no. 24 of the planning permission. Accordingly, it directed the council to amend the conditions so as to reduce the amount of the contribution to the sum which I have already mentioned in this judgment. The reduction amounts to €1,710,160.

14 The council takes the view that the board was wrong in this decision, hence these proceedings. They were commenced by motion on 28th February, 2006, were transferred into the commercial list on 13th March, 2006 and leave was given to seek judicial review on 15th March, 2006.

Relevant Statutory Provisions

15 Section 34 of the Planning and Development Act, 2000, (the Act) makes provision for the granting of planning permission by planning authorities such as the council.

16 Section 48(1) of the Act provides that a planning authority may, when granting a permission under s. 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority that are or will be provided.

17 The basis for the determination of such a contribution is dealt with under s. 48(2).

18 Subsection (a) of s. 48(2) provides that the basis for the determination of a contribution "shall be set out in a development contribution scheme made under this section". A planning authority is authorised to make one or more schemes in respect of different parts of its functional area.

19 Section 48(2)(b) provides that a scheme may make provision for payment of different contributions in respect of different classes or descriptions of development.

20 Section 48(3) provides that a scheme must state the basis for determining the contributions to be paid in respect of public infrastructure and facilities in accordance with the terms of the scheme.

21 Section 48(3)(b) requires that in stating the basis for determining the contributions, the scheme must indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by any local authority. Furthermore, the planning authority is obliged to have regard to the actual estimated cost of providing the classes of public infrastructure and facilities. Any benefit which accrues in respect of existing development may not be included in any such determination.

22 Section 48(3)(c) provides that a scheme may allow for the payment of a reduced contribution or no contribution in certain circumstances, in accordance with the provisions of the scheme.

23 Sections 48(4), (5), (6), (7), (8) and (9) prescribe an elaborate procedure which must be...