Diamrem Ltd v Cliffs of Moher Visitor Centre Ltd and Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Woulfe
• Judgment Date: 05 November 2021
• Neutral Citation: [2021] IECA 291
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2019/53

In the Matter of the Planning and Development Act, 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/Appellant

and

Cliffs of Moher Visitor Centre Limited and Clare County Council

Respondents

[2021] IECA 291

Woulfe J.

Whelan J.

Pilkington J.

Court of Appeal Record No. 2019/53

High Court Record No. 2016/259 MCA

THE COURT OF APPEAL

Unauthorised development – Planning permission – Statute barred – Appellant appealing against the decision of the High Court which refused the appellant’s application for various orders pursuant to s. 160 of the Planning and Development Act 2000 – Whether the trial judge erred in fact and in law in finding that the appellant’s action was statute barred

Facts: The appellant, Diamrem Ltd, appealed to the Court of Appeal against the decision of the High Court (Faherty J, [2018] IEHC 654), which refused the appellant’s application for various orders pursuant to s. 160 of the Planning and Development Act 2000, as amended, essentially orders prohibiting the use of a public car park at the Cliffs of Moher Visitor Centre and requiring its removal, in order to facilitate a park and ride operation, in which the appellant had an interest. The appellant contended that the public car park was unauthorised development and that the respondents, Cliffs of Moher Visitor Centre Ltd and Clare County Council, had failed to comply with certain conditions attaching to the planning permission granted to the first respondent for the purposes of developing the Visitor Centre. The appellant pleaded, inter alia, that: the trial judge erred in fact and in law in finding that the appellant’s action was statute barred by virtue of the provisions of s. 160(6)(a)(i) or (ii) of the 2000 Act; further, in the alternative, the trial judge erred in fact and in law in finding that the provisions of s. 160(6)(b) of the 2000 Act did not apply to the proceedings, where the subject matter of the proceedings concerned the breach of condition 7 which provided for the ongoing use of the car park on a temporary basis only while the development was under construction; the trial judge erred in fact and in law in finding that the car park was not unauthorised development where the car park development was carried out other than in compliance with the terms of the planning permission granted under An Bord Pleanála Reference 03/128695 and conditions 1, 3 and 7 to which that permission was subject; and the trial judge erred in fact and in law in concluding that the Part 8 process and/or any decision made thereunder by the second respondent (and, in particular, the decision under File No. LA 03/25 and/or LA 04/08) was capable of modifying the obligations of the respondents or either of them pursuant to the permission, which was granted by An Bord Pleanála. The respondents opposed the entire appeal, and pleaded that the main findings of the trial judge were all correct, in particular as regards the action being statute barred, the car park not being unauthorised development, and the legal effect of the 2003/2004 Part 8 Procedure. The respondents also sought to cross-appeal the trial judge’s finding that the car park, the subject matter of the proceedings, was not an exempt development.

Held by Woulfe J that the trial judge was correct in finding that this application was not commenced within the statutory time period. In circumstances where that issue was dispositive of the appeal, Woulfe J did not think it was necessary or appropriate for the Court to decide the questions arising on the substantive issue regarding the alleged unauthorised development, and preferred to leave those potentially difficult questions for another case where they require to be determined. Woulfe J held that it was also unnecessary in the circumstances for the Court to consider the issue of the Court’s discretion to grant relief under s. 160.

Woulfe J dismissed the appeal and affirmed the decision of the trial judge. As the appellant had been entirely unsuccessful in the appeal, Woulfe J’s provisional view was that the respondents were entitled to their costs of the appeal.

Appeal dismissed.

Judgment of Mr. Justice Woulfe delivered on the 5th day of November, 2021.

Introduction

1 This is an appeal against the decision of the High Court (Faherty J.) [2018] IEHC 654, which refused the applicant's application for various orders pursuant to s. 160 of the Planning and Development Act, 2000, as amended (“the 2000 Act”). The type of orders sought by the applicant, commonly referred to as “planning injunctions”, were essentially 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, in which the applicant has an interest. The applicant contends that the public car park at the Visitor Centre is unauthorised development and that the respondents have failed to comply with certain conditions attaching to the planning permission (“the permission”) granted to the first named respondent for the purposes of developing the Visitor Centre.

Background

2 The decision of An Bord Pleanála (“the Board”) to grant the permission, the subject matter of these proceedings, issued on the 17th December, 2002. It was preceded by an Inspector's report which was published in November, 2002, and which described the site location at that time as follows (at p. 5 of 187):

“ The existing visitor centre, comprising of a small stone building with a pitched slate roof, is located in the townland of Lislorkan North, on lands to the east of the Cliffs of Moher. The Cliffs of Moher are one of the most popular tourist destinations nationally: the Cliffs are described as an abrupt and dramatic termination of a rolling range of hills through County Clare at the Atlantic coast. The ceaseless wave erosion has resulted in the formation of dramatic and vertical cliff faces up to 200m in height which extend for approximately 8 to 10 kilometres along the western coast of Clare. The area in the vicinity of the existing visitor centre is sparsely populated and characterised by gentle undulating land which is largely under grass cover. The landscape adjacent to the Cliffs of Moher is generally devoid of tree and shrub cover. The elevated and exposed nature of the area adjoining the Atlantic ocean renders it unsuitable for such a vegetation cover. Small stone walls form the boundaries of the surrounding fields. The existing visitor centre is located to the south of a hill which stretches northwards along the cliffs. An existing car park and coach park is located on more level land to the south and the south-east of the visitor centre.

The site of the application for permission includes the existing facilities and car parking area and a substantial section of the hillside to the north extending almost to (but not including) the cliff edge path which leads to O'Brien's Tower to the north-west of the site…

The R478, a regional route linking the towns of Liscannor and Lisdoonvarna, runs along the eastern boundary of the site. This is the only public road which directly serves the existing visitor centre. The R478 is a relatively straight and narrow road between 5 and 6 metres in width. Access to the existing car park is located adjacent to the north-eastern boundary of the site. A paying booth is located at the entrance/exit of the car park. The car park can currently accommodate approximately 350 cars and 20 buses. Only 170 spaces are currently demarcated on the existing car park. However, twice this number of cars can be accommodated on site during peak periods.”

3 In or about 2001, the second named respondent proposed to replace the existing facility with a larger Visitor Centre which would be set into the southern slope of the existing hill in the northern portion of the site. The main building was to comprise of a two-storey structure, with the main entrance located on the southern elevation fronting onto the car parking area. A new car park was proposed on lands to the south and south-west of the proposed building. It was proposed to provide a total of 249 car parking spaces (a reduction of approximately 100 spaces from that which was then capable of being accommodated) and 24 coach spaces. The coach spaces were to be located adjacent to the northern and eastern boundaries. The car parking layout and circulation areas were to be significantly changed from that which then existed on site. A new vehicular entrance, together with a pay kiosk, was to be located at the south-eastern boundary of the site. Landscaping was proposed by way of grassed berms and mounds in order to conceal the visual impact of the parked vehicles from the roadway. It was 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.

4 The first named respondent company was incorporated by the second named respondent for the development and operation of the new Visitor Centre, and is a company wholly owned by the second named respondent. This meant that the development would proceed by way of a full planning application enabling a full right of participation by all interested parties during the planning process, as opposed to it being local authority development in its own functional area which would have amounted to exempted development under s. 4 of the 2000 Act, and as such would not have required a grant of permission.

5 The first named respondent lodged an application for permission with the second named respondent, as it was legally obliged to do, on the 26th February, 2001. The supporting...