Cork Institute of Technology v Bord Pleanála & Cork County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 15 January 2013
• Neutral Citation: [2013] IEHC 3
• Docket Number: [2011 No. 701 JR]
• Court: High Court
• Date: 15 January 2013

Cork Institute of Technology v Bord Pleanala & Cork Co Council

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN/

CORK INSTITUTE OF TECHNOLOGY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK CITY COUNCIL

NOTICE PARTY

[2013] IEHC 3

[No. 701 J.R./2011]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Development

Application for judicial review - Certiorari - Imposition of development contribution levy -Scheme for development contributions - Power to allow for reduction or waiver of contributions - Eligibility for waiver of contribution - Whether applicant separately entitled to exemption of planning fees - Payment of planning fees - Whether voluntary organisation - Adequacy of reasons - Whether reasons sufficiently clear - Role of An Bord Pleanála - Whether terms of scheme properly applied - Meaning of âÇÿvoluntary organisation' - Intention of legislature - Object of legislation - Whether development intended to be used by inhabitants of locality - Fingal County Council v William P Keeling & Sons [2005] IESC 55, [2005] 2 IR 108; Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; Christian v Dublin City Council [2012] IEHC 163, (Unrep, Clarke J, 27/4/2012); Cork City Council v An Bord Pleanála [2006] IEHC 761, [2007] 1 IR 761; State (Lynch) v Cooney [1982] IR 337; Kiberd v Hamilton [1992] 2 IR 257; Mallak v Minister for Justice and Equality [2012] IESC 59, (Unrep, SC, 6/12/2012) and CAO v Minister for Community, Rural and Gaeltacht Affairs [2010] IESC 32, [2010] 3 IR 674 considered - Planning and Development Act 2000 (No 30), ss 33 and 48 - Planning and Development Regulations 2001 (SI 600/2001), art 157 - Interpretation Act 2005 (No 23), s 5 - Certiorari granted (2011/701JR - Hogan J - 15/1/2013) [2013] IEHC 3

Cork Institute of Technology v An Bord Pleanála

STATUTORY INTERPRETATION

Construction

Purposive interpretation - Planning -Voluntary organisation - Definition - Exemption from planning fees - Whether third level educational institution established by statute and possessing charitable status voluntary organisation - Whether charitable organisation also voluntary organisation - Whether applicant entitled to exemption from payment of planning fees - CAO Ltd v Minister for Community, Rural and Gaeltacht Affairs [2010] IESC 32, [2012] 3 IR 674; Christian v Dublin City Council [2012] IEHC 163, [2012] 2 IR 506; Cork City Council v An Bord Pleanála [2006] IEHC 192, [2007] 1 IR 761; Kiberd v Mr. Justice Hamilton [1992] 2 IR 257; Mallak v Minister for Justice [2012] IESC 59, [2012] 3 IR 297; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453 and The State (Lynch) v Cooney [1982] IR 337 considered - Fingal County Council v William P Keeling & Sons Ltd [2005] IESC 55, [2005] 2 IR 108 followed - Regional Technical Colleges Act 1992 (No 16), ss 3, 8 and Second sch - Planning and Development Regulations 2001 (SI No 600), arts 156 and 157 - Planning and Development Act 2000 (No 30), s 48 - Interpretation Act 2005 (No 23), s 5 - Certiorari granted (2011/711JR - Hogan J - 15/1/2013) [2013] IEHC 3

Cork Institute of Technology v An Bord Pleanála

Facts: The applicant sought an order to quash a decision of An Bord Pleanála, which had approved the decision of Cork City Council to impose a development levy on the applicant"s development of a new major site.

The current application proposed that the applicant be deemed a voluntary organisation having satisfied the requirements for exemption from planning contributions under s. 157(1) Planning and Development Regulations 2001. The applicant contended that An Bord"s decision was founded on an incorrect definition and understanding of the term "voluntary organisation".

Hogan J held that although the term was surrounded by ambiguity and uncertainty, when viewed with the assistance of s. 5(2)(a) of the Interpretation Act 2005, it was intended to cover where an application for planning permission had been made for eleemosynary or charitable purposes, by a body which is not directly part of the state apparatus could avail of the benefits to waive certain fees.

The work of the Cork Institute of Technology although substantially supported by public funds and regulated by statute, conducted charitable and eleemosynary work at the core of its work in its educational contribution to the State, which was of great public importance.

An order of certiorari was granted quashing the decision.

PLANNING & DEVELOPMENT ACT 2000 S48(3)

PLANNING & DEVELOPMENT REGS 2001 ART 157(1)

FINGAL CO COUNCIL v KEELING & SONS UNREP SUPREME 29.7.2005 2005 IESC 55

PLANNING & DEVELOPMENT ACT 2000 S48

MULLHOLLAND v BORD PLEANALA (NO2) 2006 1 IR 453

MEADOWS v MINISTER FOR JUSTICE & ORS 2010 2 IR 701

CHRISTIAN v DUBLIN CITY CO COUNCIL UNREP CLARKE 27.4.2012 2012 IEHC 163

PLANNING & DEVELOPMENT ACT 20002000 S 48(10)B

CORK CITY COUNCIL v AN BORD PLEANALA 15.1.2013 2006 IEHC 761

LYNCH, STATE v COONEY 1982 IR 337

KIBERD v HAMILTON 1992 2 IR 257 1992 ILRM 574 1992 3 654

MALLAK v MINISTER FOR JUSTICE UNREP SUPREME 6.12.2012 2012 IESC 59

PLANNING & DEVELOPMENT ACT 2000 S33(2)(C)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 157(1)A

HEALTH ACT 19701970 ART 4(1)

REGIONAL TECHNICAL COLLEGE ACT 1992

UNIVERSITIES ACT 1997

REGIONAL TECHNICAL COLLEGE ACT 1992 S3(5)

REGIONAL TECHNICAL COLLEGE ACT 1992 S8

REGIONAL TECHNICAL COLLEGE ACT 1992 SCHEDULE 2 14

CENTRAL APPLICATIONS OFFICE LTD v MINISTER FOR COMMUNITY RURAL & GAELTACHT AFFAIRS 2010 3 IR 674 2010 8 1897 2010 IESC 32

INTERPRETATION ACT 2005 S5(2)(A)

1 1. Can it be said that a third-level educational institute possessing charitable status is a "voluntary organisation" so that it enjoys an exemption from the payment of planning fees and, by extension, by reason of the terms of a scheme drawn up by the planning authority pursuant to statute, from the payment of a development contribution levy under a scheme operated by Cork City Council? This is the principal question of interpretation which is raised in this application for judicial review.

2 2. In these proceedings the applicant, Cork Institute of Technology ("the Institute"), seeks to quash a decision of An Bord Pleanála dated the 21 ^st June, 2011, which approved a decision of Cork City Council ("the Council") to impose a development levy of just over €215,000 on the Institute in respect of its development of a major site adjacent to its existing campus which was formerly operated by an electronics company. The Council had previously granted the Institute planning permission on 20 ^th January, 2011, in respect of alterations to a building and a partial change of use from a light industrial use to educational facilities. The facilities included offices, storage, an examinations hall, seminar rooms and an elite sports training gymnasium.

3 3. Condition 5 of the planning permission required the Institute to pay a contribution to the Council in accordance with the Council's General Development Contribution Scheme ("the Scheme") which was adopted on 27 ^th April, 2009. While the Institute appealed against this decision, the appeal was, as we have seen, rejected by An Bord Pleanála in its decision of 21 ^st June, 2011. Before, however, considering any of the legal issues which arise, it is first necessary to set out the relevant provisions of the Council's scheme.

The Council Scheme

4 4. The Council's general power to levy development contributions is contained in s. 48 of the Planning and Development Act 2000 ("the 2000 Act"). Section 48(3)(c) of the 2000 Act provides, however, 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" (emphasis added). Table 5 of the Council's 2009 Scheme provides that provision of facilities by organizations "which are considered to be exempt from planning fees as outlined in Part 12, Article 157 of the Planning and Development Regulations 2001" are entitled to a 100% reduction. Furthermore, a 75% reduction obtains in those cases where there has been a change of use where "the intended use is likely to increase demands on services". While the Table does not quite say so in expres: terms, the implication is that in the event that there were to be no increase in demand for services, no development contribution would be payable.

5 5. In effect, however, the Council has used the technique of incorporating by reference the terms of Article 157(1) of the 2001 Regulations into the Scheme. While the language of s. 48(3)(c) of the 2000 Act does not seem to require a planning authority to elect to allow waivers or (as the case may be) reductions of otherwise exigible planning contributions, the authority may clearly do so. Here it has elected to do so by incorporating the terms of Article 157(1) of the 2001 Regulations into the s. 48 scheme which it has prepared.

6 6. It follows, therefore, that eligibility for a waiver of planning contribution is determined by the antecedent question of whether the applicant in question would also have been entitled to a waiver from planning application fees under Article 157(1). As it happens, the Institute did pay such fees when making this application for planning permission, but it is common case (and not in dispute between the parties) that in this sphere of public law no question of estoppel by conduct arises, in much the same way as the fact that an applicant applied for planning permission was held by the Supreme Court not to have precluded it from subsequently claiming a planning exemption: see Fingal County Council v. William P....