Dunne and Another v an Bord Pleanála and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McGovern
• Judgment Date: 14 December 2006
• Neutral Citation: [2006] IEHC 400
• Docket Number: [No. 309 JR/2004]
• Date: 14 December 2006

DUNNE & MACKENZIE v BORD PLEANALA & ORS

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT, 2000

BETWEEN

SEAN DUNNE AND STEPHEN MacKENZIE

APPLICANTS

AND

An Bord Pleanála AND O'MALLEY CONSTRUCTION COMPANY LIMITED

RESPONDENTS

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

JUDICIAL REVIEW

IN THE MATTER OF THE SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT, 2000

BETWEEN

SEAN DUNNE AND STEPHEN MacKENZIE

APPLICANTS

AND

AN BORD PLEANÁLA AND O'MALLEY HOMES AND DEVELOPMENTS LIMITED

RESPONDENTS

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

[2006] IEHC 400

[No. 309 JR/2004]

[No. 1165 J.R./2005]

THE HIGH COURT

Abstract:

Planning and environmental - Judicial review - Certiorari - Whether breaches of Regulations prejudiced applicants or impeded them in challenging decisions made - Planning and Development Act 2000 - Planning and Development Regulations 2001, S.I. 600/2001

This was an application for judicial review under s. 50 of the Planning and Development Act 2000 concerning two decisions of An Bord Pleanala. Effectively, the complaint of the applicants was that An Bord Pleanala failed to give the main reasons and considerations upon which its decision was based. The applicants also complained of various failures to comply with the Planning and Development Regulations 2001.

Held by McGovern J. in refusing the applicants the relief sought that the Court was entitled to use its discretion in deciding whether or not to grant the relief of certiorari and when looking at the case in its entirety the applicants were at all times aware of the general nature of the application and all their objections were considered and heard. Insofar as there had been technical breaches of the regulations the applicants had not been prejudiced.

Reporter: R.W.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 19(4) SI 600/2001

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 23 SI 600/2001

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 22 SI 600/2001

PLANNING & DEVELOPMENT ACT 2000 PART V

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 17(1)(b) SI 600/2001

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 19 SI 600/2001

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 18 SI 600/2001

PLANNING & DEVELOPMENT REGULATIONS 2001 ART 23(1)(a) SI 600/2001

PLANNING & DEVELOPMENT ACT 2000 S34(10)

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005 40 8371 2005 IEHC 306

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750

SWEENEY, STATE v MIN FOR ENVIRONMENT 1979 ILRM 35

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270, 1998 2 ILRM 401

O'KEEFE v BORD PLEANALA 1993 1 IR 39

KELLY v ROSCOMMON CO COUNCIL UNREP MCGOVERN 20.6.2006 2006 IEHC 197

FYNES v BORD PLEANALA UNREP MCGUINNESS 30.7.1998

Mr. Justice McGovern

1 This is an application for judicial review arising out of two sets of proceedings which both concern the same plot of land at Shrewsbury Road, Dublin 4. In the first set of proceedings the applicants seek an order ofcertiorari, by way of application for judicial review, quashing a decision of An Bord Pleanála dated 11th February, 2004 to grant planning permission for seven apartments and associated development (reference PL29S.204501) and for ancillary relief. In the second proceedings the applicants seek an order of certiorari, by way of application for judicial review, quashing a decision of An Bord Pleanála dated 8th September, 2005 to grant planning permission for a development consisting of seven apartments and associated development (reference PL29S.212098, Planning Authority Register reference 1555/05) and for ancillary relief.

2 In fact both proposed developments consist of the demolition of the buildings on the site of the former Chester Beatty Library and the erection of seven apartments. The second application involved the demolition of what was then a remaining building on the site, the other buildings having already been demolished. Furthermore the layout of the apartments in the second application was somewhat different to the first application.

3 On the 12th October, 2004 the applicants were granted leave to apply by way of application for judicial review for the relief set forth at paragraph D(1–9) in the statement of grounds set forth at paragraphs E (3),(4) and (6) therein.

4 On the 23rd January, 2006 the applicants were granted leave to apply by way of judicial review for the reliefs set out in paragraph E grounds 1 and 3.

5 Effectively the complaint of the applicants is that in each of the cases An Bord Pleanála failed to give the main reasons and considerations upon which its decision was based and in particular on the question of the alleged incompatibility of the proposed development on the unique character of Shrewsbury Road having regard to the fact that it has been designated a Residential Conservation Area. The applicants also complain that the first respondent failed to give proper reasons for departing from the recommendation of the Inspector on the issue of the problems that might be created due to its proximity with the RDS and the issue in relation to the existence of a balcony door facing towards the second named applicant's premises.

6 The applicants also complain of various failures to comply with the Planning and Developments Regulations, 2001. The complaints are as follows:-

7 1. No site notice in accordance with Part 4 of the Planning and Development Regulations, 2001 was erected prior to the making of the application for planning permission.

8 2. No site notice in accordance with Article 19(4) of the Planning and Development Regulations, 2001 was erected at any time.

9 3. The newspaper notice failed to indicate that the proposed development involved the demolition of two habitable houses. Thus the nature and extent of the development were not properly described.

10 4. The requirements of Article 23 of the Planning and Development Regulations, 2001 were not complied with. The elevation drawings of the proposed structure did not show the main features of the buildings in the vicinity including the second named applicant's dwellinghouse which would be contiguous to the proposed structure if erected.

11 5. The requirement of Article 22 of the Planning and Development Regulations, 2001 were not complied with. In particular proposals in respect of social and affordable housing under Part V of the Planning and Development Act,2000 were not included in the application.

12 6. The proper fee as required under the Planning and Development Regulations, 2001 was not submitted.

13 Extensive submissions have been made by the parties save for the notice party who maintained a watching brief.

14 For the purposes of this judgment I will refer to the planning application which is the subject matter of proceedings bearing Record No. [2004 No. 309 J.R.] as "the first application" and the planning application which is the subject matter of proceedings bearing Record No. [2005 No. 1165 J.R.] as "the second application".

15 There is a dispute between the parties in the first application as to whether or not a site notice was erected in accordance with the provisions of Part 4 of the Planning and Development Regulations, 2001. Article 17 (1)(b) provides that an applicant shall within the period of two weeks before the making of a planning application"give notice of the intention to make the application by the erection or fixing of a site notice in accordance with Article 19". Article 19 deals with the nature of the notice to be erected or fixed on the land or structure. There is a dispute between the parties as to whether or not the notice was erected in accordance with the Regulations. There is a second issue with regard to the notice in the first application which concerns the colour of the notice. It is contended on behalf of the applicants that the site notice should have been on a yellow background because the first application was made within six months from the making of a previous application in respect of land substantially consisting of the site or part of the site to which the previous application related. It is quite clear on the facts that the site notice which was erected was on a white background. I will deal with the legal implications of that later in the judgment. With regard to the dispute as to the erection of the site notice, the first named applicant says that the first time he saw the site notice was on or about Friday the 29th November, 2002. Mr. Myles O'Malley on behalf of the second named respondent says that on the evening of Friday the 15th November, 2002, he caused the site notice to be erected at the entrance from the public road to the lands which are the subject matter of the proceedings and he says that the site notice was placed in exactly the same position as the site notice in respect of which planning permission was granted by An Bord Pleanála under a previous reference. The site notice is dated the 15th November, 2002. I do not think it is possible to resolve this issue on the affidavits. It is quite clear from the affidavits and exhibits and the submissions which have been made that both the first and second named applicants were aware that an application to develop the site was made by the second named respondent and they were aware of this within sufficient time to enable them to object to the proposed development.

16 The applicants claim that the newspaper notice in the first application failed to indicate that the proposed development involved the demolition of two habitable houses and they claim that the nature and extent of the development was not therefore properly described. Article 18 of the Regulations sets out the material which should be in a notice published in the newspaper in accordance with the Regulations. There is nothing in Article 18...