Dunne v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] IEHC 146 |
| Court | High Court |
| Date | 30 March 2012 |
[2012] IEHC 146
THE HIGH COURT
BETWEEN
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S34(5)
O'KEEFFE v BORD PLEANALA 1993 I IR 39
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S26(2)(F)
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S26(7)
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S26(2)
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S50A(3)
MCGOLDRICK v BORD PLEANALA 1997 1 IR 497
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S5
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S137
PLANNING & DEVELOPMENT (AMDT) ACT 2000 S48
LOCAL GOVT PLANNING & DEVELOPMENT ACT 1963 S26(2)
BOLAND v BORD PLEANALA 1996 3 IR 435
O'CONNOR v DUBLIN CORPORATION (NO 2) UNREP O'NEILL 3.10.2000 2000/14/5399 2000 IEHC 68
PLANNING & DEVELOPMENT ACT 2000 S50
BELTON v CARLOW CO COUNCIL 1997 2 ILRM 405
HARRINGTON LTD v BORD PLEANALA UNREP HEDIGAN 23.11.2010 2010/19/4789 2010 IEHC 428
HENRY DENNY & SONS IRELAND LTD v MINISTER FOR SOCIAL WELFARE 1998 1 IR 34
PLANNING & DEVELOPMENT LAW
Planning permission
Conditions - Financial contributions - Dispute between developer and local authority - Referral to An Bord Pleanála - Locus standi - Substantial interest - Whether applicants disadvantaged by decision challenged - Whether respondent determined quantum meruit dispute between applicants and local authority - Whether decision of respondent on quantum meruit dispute res judicata - Whether substantial interest - Jurisdiction - Whether respondent limited by planning conditions referred - Whether tribunal with special expertise - Whether respondent acted outside jurisdiction - Whether respondent exceeded scope of referral - Whether traffic generation methodology appropriate and reasonable - Fair procedures - Whether traffic generation methodology notified to applicants prior to hearing - Whether respondent permitted local authority to double charge for infrastructure improvement - Whether respondent entitled to distinguish planning conditions applied to nearby development - Whether decision of respondent rational - Whether applicants seeking to launch collateral attack on planning conditions - Boland v An Bord Pleanála [1996] 3 IR 435 and Belton v Carlow County Council [1997] 1 IR 172 applied - O'Connor v Dublin Corporation (Unrep, O'Neill J, 3/10/2000) and Frank Harrington Ltd v An Bord Pleanála [2010] IEHC 428 (Unrep, Hedigan J, 23/11/2010) followed - Planning and Development Act 2000 (No 30), ss 34(5) & 50A(3) - Leave refused (2010/1250JR - Hedigan J - 30/3/2012) [2012] IEHC 146
Dunne v An Bord Pleanála
Facts: The applicant sought an order of certiorari quashing the decision of the respondent in a referral of the applicants made pursuant to s. 34(5) Planning and Development Act 2000. The applicants sought to challenge the determination of the respondent as to contributions payable under the permissions. The applicants contended that the determinations were outside of its jurisdiction and that it had not entitlement to value works. It was argued that the Board had arrogated to itself a right to determine a quantum meruit contractual dispute and that the Board had greatly undervalued works. The applicants claimed that they did not have sufficient notice of the Board”s intention to use the traffic generation methodology.
Held by Hedigan J. that leave for judicial review would be refused. In relying on the Inspectors decision the Board was exercising its expert judgment. The time to appeal had long gone. The challenges made out were far from the standard of irrationality required to overturn the decision of an expert tribunal. The arguments as to methodology could not be sustained.
Judgment of Mr. Justice Hedigan delivered the 30th of March 2012.
1. The first applicant resides at 67 Merrion Square, Dublin 2. The second applicant resides at Fonthill House, Old Lucan Road, Palmerstown, Dublin 20. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts. The notice party is the County Council with responsibility for the administrative area of Kildare.
2. The applicant seeks the following reliefs:-
(i) An order of certiorari by way of application for judicial review quashing so much of the decision of the Respondent dated 29 th July 2010 (notified to the Applicants under cover letter dated 4 th August 2010 and received by their agents on 5 th August 2010) on the referral of the Applicants made pursuant to section 34(5) of the Planning and Development Act 2000 (as amended) (bearing Reference No. PL09.RP2025).
(ii) An order of certiorari by way of application for judicial review quashing so much of the decision of the Respondent dated 29 th July 2010 (notified to the Applicants under cover letter dated 4 th August 2010 and received by their agents on 5 th August 2010) on the referral of the Applicants made pursuant to section 34(5) of the Planning and Development Act 2000 (as amended) (bearing Reference No. PL09.RP2026).
(iii) Damages and/or costs in the amount of the expenses and administrative casts incurred by the Applicant in connection with the within proceedings.
2 3.1 The applicants seek judicial review of two decisions of the respondent on referrals made pursuant to section 34(5) of the Planning and Development Act 2000 as amended. The referrals were made on the 7 th February, 2008 in relation to the development of the Whitewater Shopping Center, Newbridge, Co Kildare. At paragraph 2.2 of the referral the determination sought is as follows:-
"The Board is now asked to adjudicate and determine the points of detail comprising the amounts of the levies applicable in respect of conditions 14 and 15 of 02/1514 and 27 and 28 of 03/1981."
A substantial amount of works, the funding of which was to have been contributed to by the applicants on foot of the subject permission and conditions thereto, has been carried out by the applicants on behalf of KCC. The costs associated with these works are to be recovered by the applicant, from KCC. That is being pursued separately by the applicant. For the avoidance of doubt, the Board is not requested to determine the matter of recovery of these costs in this referral.
Following the Board's determination of the levies the applicants and KCC can then move to proceed to the next stage i.e., to agree the amount to be repaid to the applicants for works done by the applicants on behalf of KCC. These works originally should have been carried out by KCC:"
Section 34(5) provides a procedure whereby a matter that cannot be agreed between a planning authority and the person carrying out the development may be referred to An Bord Pleanála for determination. This procedure was exercised by the applicants, and in the within proceedings they seek leave to quash the Board's determination of that referral. The Board's determination dealt with two conditions of two planning permissions granted by the Council to the applicants. The conditions, referrals and decisions in respect of the two permissions are in like terms and effect and will be considered together. The conditions in question are conditions 14 and 15 of permission 02/1514.
3 3.2 Condition 14 required the applicants, before the development was opened to the public, to pay to the Council the entire cost of the works necessary to facilitate the proposed development and to agree the sum prior to commencing the development. The applicants carried out these works themselves (with the exception of the works listed at (e) below) rather than paying the Council to carry out the works. The works necessary to facilitate the development are listed in condition 14 as follows:-
(a) Access to the development was to be in accordance with drawing ref: SK/K73/005 of 14/2/02.
(b) Refurbishment of existing traffic signals.
(c) Provision of new traffic signals.
(e) Implementation one way system -Cutlery Road, Henry Street, Eyre Street.
(f) Improvement of Inner Ring Road to provide extra capacity at the Athgarvan road and Cutlery Road.
Condition 15 required the applicants to arrange for the payment to the Council of a financial contribution towards the cost of providing the necessary road improvements and infrastructure and to agree the sum prior to commencing the development. The applicants commenced the development prior to agreeing the level of the financial contribution. The works necessary to ensure the sustainability of the development are listed in condition 15 as follows:-
(a) Provision of public bus service linking the development with the town centre and the train station.
(b) Provision of Boardwalks and junction improvements.
(c) Provision of Outer Ring Road.
(e) Provision of a North South spur.
(f) Improvement of Inner Ring Road to provide extra capacity at Edward Street and Main Street.
4 3.3 The original planning permission no. 02/1514 was granted to Newbridge Investments Ltd, a company controlled by the applicants on the 22 nd January, 2003. In planning permission no. 03/1961 the Council agreed to an amendment to the original permission. This amendment was agreed on the 2 nd January, 2004. The applicants made a referral to the Board on the 7 th February, 2008. The referral was made pursuant to section 34(5) of the Planning and Development Acts 2000-2010 in respect of matters left over for agreement by the planning permissions on which the Council and the applicants had not reached agreement i.e. the referral. On the 23 rd September, 2008 the Council made a submission to the...
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