O'Donoghue v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Murphy
Judgment Date05 March 1991
Neutral Citation1991 WJSC-HC 1081
CourtHigh Court
Docket NumberNo. 223 JR/1990
Date05 March 1991

1991 WJSC-HC 1081

THE HIGH COURT

No. 223 JR/1990
O'DONOGHUE v. BORD PLEANALA
Judicial Review

BETWEEN

MICHAEL O'DONOGHUE
APPLICANT

AND

AN BORD PLEANALA AND TALLON PROPERTIES LIMITED
RESPONDENTS

Citations:

KEEGAN, STATE V STARDUST CONPENSATION TRIBUNAL 1986 IR 642

CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1

O'SULLIVAN & SHEPHERD A SOURCE BOOK ON PLANNING LAW IN IRELAND 1987 SUPP 26

KELEGHAN & ORS V CORBY & DUBLIN CORPORATION 111 ILTR 144

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 R48

SHARPE LTD V DUBLIN CITY & CO MANAGER 1989 ILRM 566

O'KEEFFE V BORD PLEANALA UNREP COSTELLO 31.7.90 1990/8/2141

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

Synopsis:

JUDICIAL REVIEW

Remedy

Scope - Restriction - Tribunal - Decision - Certiorari - Planning appeal - Planning permission granted - Review not a substitute for an appeal - (1990/223 JR - Murphy J. - 5/3/91) - [1991] ILRM 750

|O'Donoghue v. An Bord Pleanala|

PLANNING

Permission

Application - Notice - Advertisement - Sufficiency - Permission refused by planning authority - Appeal allowed by planning board - Appeal opposed by board's inspector - Whether appeal allowed arbitrarily - Inadequate records of planning board - Scope of judicial review - (1990/223 JR - Murphy J. - 5/3/91) - 1991 ILRM 750

|O'Donoghue v. An Bord Pleanala|

TRIBUNAL

Decision

Reasons - Disclosure - Necessity - Planning appeal - Planning board - Appeal allowed despite advice of inspector - Appellate decision reasonable - (1990/223 JR - Murphy J. - 5/3/91)

|O'Donoghue v. An Bord Pleanala|

1

Judgment of Mr. Justice Murphydelivered the 5th day of March 1991.

2

(1) On the 27th October 1989 the planning authority, the Dublin County Council, refused an application by the above secondly named Respondents Tallon Properties Limited (to whom I may refer as "Tallon") for permission to construct a bungalow on lands sometimes described as "Site One at Old Rectory Park, Taney Road, Dundrum". The reason given for that refusal was as follows:-

"The proposed development to construct a bungalow with a floor area of 160 square metres - over twice the floor area of a bungalow previously granted on this site - is considered to be an overdevelopment of thesite. The proposal does not comply with site development standards as detailed in the County Development Plan and as such would be seriously injurious to the amenities of property in the vicinity".

3

(2) In an undated letter Tallons appealed that decision to the first named Respondents An Bord Pleanala ("the Bord") and, in addition to contending that the proposed bungalow would not be an overdevelopment of the site went on to say:-

"The proposed bungalow has a floor area of 1,555 square feet (144 sm) and the site area is 6,640 square feet (618 sm)."

4

(3) In a report to the Bord dated the 16th day of February 1990 Mr. O'Grada a Senior Inspector with the Bord recommended the refusal of permission on the following grounds:-

"Having regard to the configuration of the proposed house plot and the trees which contribute significantly to the amenity of this locality, it is considered that the proposed development would represent overdevelopment of the site with consequent undesirable destruction of trees and associated serious injury to residential amenity."

5

As part of his analysis of the subject matter of the appeal and perhaps in particular having regard to a discrepancy in relation to the area of the proposed bungalow and indeed the area of the site itself Mr. O'Grada superimposed the layout of the bungalow originally proposedfor the site on the plans lodged in connection with the present application. In addition he arranged to have taken helpful photographs of the site which show the entrance to what was no doubt a substantial building which stood at one time in the area now known as the Old Rectory. Presumably that building was indeed the Rectory of the graceful church opposite to it and which gave its name to the new development by which it, the Rectory, was replaced. These photographs also show the trees which are at present on the site.

6

(4) By letter dated the 12th of April 1990 the Applicant, Michael O'Donoghue, made submissions in writing to the Bord urging rejection of the appeal. The Applicant made a total of six objections of which it may be of assistance to refer in particular to three namely,

7

(1) That the advertisement of the application for permission referred to a "revised plan" which implied that there was then a valid planning permission in existence for the site when such was not the case.

8

(2) That the site area was 450 square metres and not 606 square metres as stated in the planning application or 618 square metres as stated in the Notice of Appeal.

9

(3) That the proposed access to the development from a sharp corner on Old Rectory Park represented a traffic hazard.

10

(5) Notwithstanding the recommendation of the Senior Inspector and the objections of Mr. O'Donoghue, by Order dated the 1st of August 1990 the Bord granted the permission sought subject to the conditions set out in the Second Schedule thereto. The reason for allowing the appeal andgranting the permission was set out in the First Schedule to the Order in the following terms:-

"It is considered that the proposed development would not constitute overdevelopment of the site or be injurious to the amenities of property in the vicinity and that, subject to compliance with the conditions set out in the Second Schedule hereto, it would accord with the proper planning and development of the area."

11

Of the three conditions to which the permission was subject those numbered one and three might be regarded as being standard. The remaining condition is hardly unusual but some importance was attached to it and accordingly I will quote it in full as follows:-

"All service cables associated with the proposed development (such as electrical, communal television and telephone cables) shall be run underground within the site."

12

It is in these circumstances that the Applicant applies for an Order by way of Certiorari removing the decision of the 1st of August 1990 by the Bord for the purpose of having the same quashed. Whilst the application was based on numerous grounds these have been summarized by Counsel on behalf of the Applicant as follows:-

13

(1) Material defects in the public advertisement of the application for permission.

14

(2) That the decision of the Bord was ultra vires on twogrounds:-

15

(a) That it was such an unreasonable exercise of the decision-making power of the Bord as to fallwithin that category of decision described by Mr. Justice Henchy in the State (Keegan) v. Stardust Compensation Tribunal 1986 I.R. 642as "plainly and unambiguously flying in the face of fundamental reason and common sense."

16

(b) Because the Bord had failed to keep a written record of its deliberations which would permit a Court to ascertain the reasons why it made its determination so that they, the Courts, could properly exercise their supervisory Jurisdiction.

17

Turning first to the argument relating to the form of the public advertisement. That advertisement was in the following terms:-

"Dublin County Council Revised Plan for bungalow on site one at Old Rectory Park, Taney Road, Dundrum for Tallon PropertiesLimited."

18

The Applicant contends that this advertisement is defective in the following respects:-

19

(a) That the premises should have been described as No. 2 Taney Road and not Site One Old Rectory Park.

20

(b) That the reference to a revised plan was misleading as there was not at the date of the advertisement any valid existing permission relating to the site.

21

(c) That the failure to indicate that the access to the proposed bungalow would be from the OldRectory Park and not the imposing entrance through the granite piers in Taney Road was a fatal omission.

22

The nature and content of advertisements published in relation to planning applications have been the subject matter of numerous decisions of the Courts. It seems to me that there is little to be gained by comparing the facts of one case with those of another. The principle applicable in all cases is to be found in the decision of Mr. Justice Griffin delivering the majority decision of the Supreme Court in Codaun Homes Limited v. Kildare County Council in an unreported judgment dated the 27th of April 1982 and recorded in O'Sullivan and Shepherd a Source Book on Planning Law in Ireland 1987 supplement page 26 at page 29 as follows:-

"It is against the background aforesaid that the adequacy of the notice in this case must be considered. As has frequently been pointed out by this Court in recent years, the grant or refusal of a permission for development involves three parties - the developer, the planning authority, and the public. The primary object of the publication in a newspaper is to ensure that adequate notice is given to enable those members of the public who are interested in the environment, or who may be affected by the proposed development, to ascertain whether they may have reason to object to the proposed development. In my view, to satisfy the requirement of stating "the location of the land", both the letter and the spirit of the regulations require that in the case of land, and in particular land which is not in an urban area, the site in which it is proposed thatthe development should take place must be correctly and accurately so described in relation to the district in which the land is situated - for example by the estate of which it forms part, or the town land, or the neighbouring village - so to be readily and reasonablyidentifiable."

23

In the present case the advertisement is unimpeachable insofar as it clearly identifies Dundrum (Dublin) as the general location. It refers expressly to "Taney Road" and directs attention to "Old...

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