Dalton v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 28 January 2020
• Neutral Citation: [2020] IEHC 27
• Docket Number: [2019 No. 269 J.R.]
• Court: High Court
• Date: 28 January 2020

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN

BRENDAN DALTON

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENTS

AND

DUBLIN CITY COUNCIL

AND

CAIRN HOMES PROPERTIES LIMITED

NOTICE PARTIES

[2020] IEHC 27

Denis McDonald J.

[2019 No. 269 J.R.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Permission – Development – Invalid appeal – Applicant seeking an order quashing a decision of the respondent to reject, as invalid, an appeal filed by the applicant with the respondent – Whether the applicant’s appeal was invalid

Facts: The applicant, Mr Dalton, applied to the High Court seeking an order quashing a decision of the respondent, An Bord Pleanála, made on 14th March, 2019, to reject, as invalid, an appeal filed by the applicant with the respondent against a decision of the first notice party, Dublin City Council, to grant permission for a residential development at Parkside, Balgriffin Park, Dublin 17. Receipt of the appeal in question had initially been accepted by the respondent without objection. However, subsequently, the respondent wrote to the applicant to inform him that, on further examination of the appeal, it was noted that the names and addresses of the appellants were not stated and informing him that, as a consequence, the appeal was invalid. In support of its position, the respondent invoked the provisions of ss. 127 (1) (b) and 127 (2) of the Planning and Development Act 2000. The respondent maintained that the only name and address given on the appeal was that of the applicant but that it was clear that he was acting on behalf of others in making the appeal and their names and addresses were not given anywhere in the appeal document. The applicant maintained that the decision to reject the appeal was invalid on a number of grounds: (a) the appeal complied with the requirements of s. 127 of the 2000 Act; (b) there was substantial compliance with the requirements of s. 127 and any non-compliance was of a technical or trivial nature and could not render the appeal invalid; (c) the decision of the respondent to reject the appeal was taken in breach of his right to fair procedures and was contrary to natural or constitutional justice. In making this case, the applicant argued that he should have been given an opportunity to make submissions to the respondent before the decision to reject the appeal. In addition, the applicant sought to argue that the initial acceptance by the respondent of the appeal was relevant to the issue of fairness. Although not pleaded precisely in those terms, the applicant, in the course of the hearing appeared to make a case that, in some way, the respondent was estopped from rejecting the appeal

Held by McDonald J that the applicant had failed to establish any valid ground to challenge the decision of the respondent to reject his appeal.

McDonald J held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Denis McDonald delivered on 28 January, 2020

1 In these proceedings, the applicant seeks an order quashing a decision of the respondent made on 14th March, 2019 to reject, as invalid, an appeal filed by the applicant with the respondent against a decision of Dublin City Council (the first named notice party) to grant permission for a residential development at Parkside, Balgriffin Park, Dublin 17. Receipt of the appeal in question had initially been accepted by the respondent without objection. However, subsequently, the respondent wrote to the applicant to inform him that, on further examination of the appeal, it was noted that the names and addresses of the appellants were not stated and informing him that, as a consequence, the appeal was invalid. In support of its position, the respondent invoked the provisions of ss. 127 (1) (b) and 127 (2) of the Planning and Development Act, 2000 (“the 2000 Act”). The respondent maintained that the only name and address given on the appeal was that of the applicant but that it was clear that he was acting on behalf of others in making the appeal and their names and addresses were not given anywhere in the appeal document.

2 The applicant maintains that the decision to reject the appeal is invalid on a number of grounds:-

(a) In the first place, the applicant contends that the appeal compiles with the requirements of s. 127 of the 2000 Act;

(b) Without prejudice to his primary contention that the appeal complied with the requirements of s. 127, the applicant maintains in the alternative that, at worst from his perspective, there was substantial compliance with the requirements of s. 127 and that any non-compliance was of a technical or trivial nature and cannot render the appeal invalid;

(c) Thirdly, the applicant contends that the decision of the respondent to reject the appeal was taken in breach of his right to fair procedures and is contrary to natural or constitutional justice. In making this case, the applicant argues that he should have been given an opportunity to make submissions to the respondent before the decision to reject the appeal. In addition, the applicant sought to argue that the initial acceptance by the respondent of the appeal is relevant to the issue of fairness. Although not pleaded precisely in these terms, the applicant, in the course of the hearing appeared to make a case that, in some way, the respondent was estopped from rejecting the appeal.

Section 127 of the 2000 Act

3 Before I attempt to set out the underlying facts, it may be helpful, at this point, to refer to the relevant provisions of s. 127 of the 2000 Act. Section 127 sets out certain requirements which must be complied with for the purposes of an appeal to the respondent. Insofar as relevant, s. 127 provides as follows:-

“(1) An appeal … shall—

(a) be made in writing,

(b) state the name and address of the appellant … and of the person, if any, acting on his or her behalf,

(c) state the subject matter of the appeal …,

(d) state in full the grounds of appeal … and the reasons, considerations and arguments on which they are based,

(e) in the case of an appeal under section 37 by a person who made submissions or observations in accordance with the permission regulations, being accompanied by the acknowledgment by the planning authority of the submissions or observations,

(f) …

(g) be made within the period specified for making the appeal… .

(2) (a) An appeal … which does not comply with the requirements of subsection (1) shall be invalid.

(3) Without prejudice to section 131 or 134, an appellant … shall not be entitled to elaborate in writing upon, or make further submissions in writing in relation to the grounds of appeal … stated in the appeal … or to submit further grounds of appeal … and any such elaboration, submissions or further grounds of appeal … that is or are received by the Board shall not be considered by it.

(4) …

(5) An appeal … shall be made—

(a) by sending the appeal … by prepaid post to the Board,

(b) by leaving the appeal … with an employee of the Board at the offices of the Board during office hours (as determined by the Board), or

(c) by such other means as may be prescribed.”

4 It will be necessary, in due course, to consider the relevant case law in relation to s. 127 and its predecessor provision namely s. 4 of the Local Government (Planning and Development) Act, 1992 (“the 1992 Act”). It should be noted, at this point, that s. 127 (1) (b) is in somewhat different terms to s. 4 (1) (b) of the 1992 Act. Under the latter provision, the name and address of the appellant was required to be given. There was no reference to any requirement to provide the name of the person (if any) acting on the appellant's behalf. As will be clear from the provisions of s. 127 (1) (b) quoted above, s. 127 (1) (b) now requires that both the name and address of the appellant be given and also the name of any person (if any) acting on the appellant's behalf.

5 Before considering the proper interpretation of s. 127 and the relevant authorities, it is necessary to set out the relevant facts.

Relevant facts

6 In August 2018 the second named notice party Cairn Homes Properties Ltd (“ Cairn“) submitted an application for planning permission to Dublin City Council (“ the Council”) for a residential development at Parkside, Balgriffin, Park Lane, Dublin 17. The relevant development site was described in the planning application as:-

“… located south-west of Parkside Phase 2C (currently under construction) west of St. Michael's Cottages, south-east of Parkside Square, the neighbourhood park and the green link pedestrian/cyclist route between Belmayne Avenue and the Hole in the Wall Road”.

7 On 24th September, 2018 the applicant made a submission to the Council in which he expressed concern that the development appeared to involve an encroachment into a number of properties at St. Michael's Cottages. In the submission, concern was also expressed in relation to a proposed entrance road which he said would be seriously detrimental to the development potential of some of the cottages. The submission also raised a concern in relation to the proposed height of the scheme along the western boundary of the site the subject of the application.

8 There are a number of features of the submission which should be kept in mind:-

(a) In the first place, the applicant describes himself as a “broker advocate”;

(b) Secondly, the submission commences by referring to the applicant's clients. The opening words of the submission are in the following terms:-

“On behalf of my clients who are all of the owners/residents of the St. Michael's Cottages … as per the attached … map …, I also wish to inform you that I am also their exclusively appointed development broker … and I advocate for them on development issues and specifically with interested parties in the development of their...