Diamrem Ltd v Cliffs of Moher Centre Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 20 November 2018
• Neutral Citation: [2018] IEHC 654
• Docket Number: Record No. 2016/259/MCA
• Court: High Court
• Date: 20 November 2018

[2018] IEHC 654

THE HIGH COURT

Faherty J.

Record No. 2016/259/MCA

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000 []

BETWEEN

DIAMREM LIMITED

APPLICANT

AND

CLIFFS OF MOHER CENTRE LIMITED

AND

CLARE COUNTY COUNCIL

RESPONDENTS

Planning & Environment – Planning Permission – Cliffs of Moher – Visitor centre – Use of car park

Facts: The first respondent had been granted planning permission for the development of a new Visitor Centre near the Cliffs of Moher in Co. Clare. The applicant had entered into an agreement with the second respondent for a park and ride service to the Centre and contended the first respondent had failed to comply with the conditions relating to a car park imposed by the grant of planning permission.

Held by Faherty J, that the application for relief would be refused. The Court considered the evidence before it and concluded that the respondents had not failed to comply with the planning conditions, and that the applicant was out of time in respect of bringing proceedings under s. 160 of the Planning and Development Act 2000.

JUDGMENT of Ms. Justice Faherty delivered on the 20th day of November, 2018

1 This is an application pursuant to s. 160 of the Planning and Development Act 2000 (as amended) ('the 2000 Act') in which the applicant, in summary, seeks:

• An order compelling the respondents to comply with the terms of Planning Permission 01/333 granted by An Bord Pleanála ('the Board') to the first respondent for the development of a new Visitor Centre at the Cliffs of Moher, Co. Clare.

• An order requiring the respondents to comply with the requirements of Condition 3 of the Planning Permission which condition required the details of a proposed mobility management strategy to be submitted and agreed before the commencement of the development and which mobility management strategy provided for 'the removal of the temporary car park which was to be retained only for a period after construction had been completed, and to allow time for the detailed consideration of a park and ride initiative for the site'.

• An order requiring the removal of the temporary car park in accordance with the requirements of Condition 7 of the Planning Permission.

• An order prohibiting the use of the temporary car park in circumstances where that use is in inconsistent with the terms of Condition 3 and Condition 7 of Planning Permission 01/333.

2 In essence, the applicant is seeking, inter alia, orders prohibiting the use of a public car park at the Cliffs of Moher Visitor Centre ('the Visitor Centre') and requiring its removal, in order to facilitate a park and ride operation. It is the applicant's case that the public car park at the Visitor Centre is unauthorised development and the applicant says that the respondents have failed to comply with certain conditions attaching to planning permission granted to the first respondent for the purposes of developing the Visitor Centre.

Background

3 At the time of the original planning application in 2001 the then existing Visitor Centre comprised a small stone building located on lands to the east of the cliffs and to the south of a hill which stretches northwards along the cliffs. The Visitor Centre had a car park and coach park located on more level land to the south and south east of the Visitor Centre. The then car park had the potential to accommodate approximately 350 cars and 20 buses with 170 spaces demarcated on the car park.

4 The planning application which came before the second respondent/Planning Authority in 2001 proposed a larger Visitor Centre set into the southern slope of the existing hill in the northern portion of the site. A small ancilliary building was to be located to the immediate south of the old Centre. A new car park was proposed on lands to the south and south west of the proposed buildings. It was proposed to provide a total of 249 car parking spaces with coach spaces to be located adjacent to the northern and eastern boundary. The car parking layout and circulation areas were significantly changed from what was currently on the site. The planning application also proposed to provide temporary car parking on lands adjacent to the site, on the eastern side of the R478, during the construction period. Subsequent to the construction period, it was proposed to operate a support park and ride facility from villages and towns in the surrounding area during peak times.

5 On 21st January, 2002, the second respondent granted planning permission for the demolition of the existing Visitor Centre and the development of a new Visitor Centre, retail unit, public toilets, six casual trader's bays, waste treatment plant and revised car park and coach area, including new entrances.

6 The grant of permission was the subject of third party appeals by An Taisce and Shannon Development Limited to An Bord Pleanála ('the Board').

The Board"s decision (01/333) issued on 17th December, 2002, granting permission for the development.

7 The Board's grant of planning permission followed an oral hearing in October 2002. The Inspector's report was published in November, 2002.

The Board's decision

8 As recited on the face of its decision, the appeal heard by the Board was against the second respondent's decision to grant subject to conditions a permission for development comprising:

'...the demolition of the existing Cliffs of Moher Visitor Centre and the development of a new Visitor Centre, retail unit, public toilets, six number casual trader's bays, waste treatment plant, revised car and coach park entrances and a revised car and coach parking arrangement including ancillary landscaping works at the site of the existing visitor centre and car park at the Cliffs of Moher, County Clare in accordance with plans and particulars lodged with the said Council.'

9 The decision of the Board was expressed as follows:-

'...it is hereby decided, for the reason set out in First Schedule hereto, to grant permission for the said development in accordance with the said plans and particulars, subject to the conditions specified in the Second Schedule hereto, the reasons for the imposition of the said conditions being as set out in the said Second Schedule and the said permission is hereby granted subject to the said conditions.'

10 The Board's grant of permission was subject to 19 conditions set out in the Second Schedule. The relevant conditions for the purposes of the within application are as follows:-

'1. The development shall be carried out in accordance with the plans and particulars lodged with the application, as amended by the drawings received by the planning authority on 12th March, 2001, 23rd November, 2001 and 30th November, 2001, except as may otherwise be required in order to comply with the following conditions.

Reason

In the interest of clarity.

2. The proposed free-standing ancillary building shall be omitted from the development and the relevant area shall be landscaped. Details of the landscaping of this area shall be agreed with the planning authority prior to the commencement of development.

Reason: In the interest of visual amenity and to limit the scale of overall development at this sensitive location.

3. Details of the proposed mobility management strategy shall be submitted to the planning authority for written agreement prior to the commencement of development.

Reason: In the interest of traffic safety and visitor management.

...

7. Detailed proposals, including full particulars of the temporary car park to be provided during the period of construction and the storage of excavated materials from the site, shall be submitted to and agreed with the planning authority prior to the commencement of development.

Reason: In the interest of orderly development.

...

9. Details, including a site layout map and site section of the coach parking areas, of measures to mitigate the impact of parked coaches within the site, including proposals to lower the level of the parking surfaces and to increase the height of screen mounding, shall be submitted to and agreed with the planning authority prior to commencement of development. A photomontage aspect of the southerly aspect of the proposed development, taken from a point to be agreed with the planning authority, shall be submitted to the planning authority prior to commencement of development.

Reason: In the interest of visual amenity...'

Events subsequent to the Board grant of permission, as deposed to on affidavit

11 As outlined in the affidavit of Mr. Gerard Dollard, Director of Services with the first respondent, sworn 17th November, 2016, changes were made to development proposals in the aftermath of the Board's decision. A number of modifications to the design proposals for the permission were the subject of public consultation and permission pursuant to Part VIII of the Planning and Development Regulations 2001. This is explained by Mr. Dollard, as follows:

'...certain modifications to the design proposals for which permission had been granted by An Bord Pleanála were the subject of public consultation and permission under Part VIII of the Planning and Development Regulations 2001. The Council made an application in October 2003 in respect of proposed cliff edge improvement works, bearing reference LA 03-25, and an application in respect of other developments and modifications for the visitor centre, bearing reference LA 04-08. In the course of its submission dated 30th September, 2004 to the Council in respect of Part VIII application LA 04-08...the appointed architects for the scheme confirmed that the proposed car parking area at the Visitor Centre Site " be relocated outside of the Visitor Centre Site". The proposed remote temporary Car Parking facility is situated on the East side of the...