Fionuala Sherwin v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 03 July 2007
• Neutral Citation: [2007] IEHC 227
• Docket Number: [2006 No.
• Court: High Court
• Date: 03 July 2007

[2007] IEHC 227

THE HIGH COURT

[No. 639 JR/2006]

Sherwin v An Bord Pleanála

JUDICIAL REVIEW

BETWEEN

FIONUALA SHERWIN

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

FINGAL COUNTY COUNCIL

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S5(3)(a)

PLANNING & DEVELOPMENT ACT 2000 S57(1)

PLANNING & DEVELOPMENT ACT 2000 PART III

PLANNING & DEVELOPMENT ACT 2000 S32(1)

PLANNING & DEVELOPMENT ACT 2000 S3(1)

PLANNING & DEVELOPMENT ACT 2000 S4(1)

PLANNING & DEVELOPMENT ACT 2000 S4(1)(h)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT ACT 2000 PART IV CHAPTER I

PLANNING & DEVELOPMENT ACT 2000 S51

PLANNING & DEVELOPMENT ACT 2000 S52

PLANNING & DEVELOPMENT ACT 2000 S53

PLANNING & DEVELOPMENT ACT 2000 S57

PLANNING & DEVELOPMENT (AMDT) ACT 2002 S13

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S57(6)

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S57(2)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 1 CLASS 50

DEPARTMENT OF ENVIRONMENT, HERITAGE & LOCAL GOVERNMENT ARCHITECTURAL HERITAGE PROTECTION GUIDELINES FOR PLANNING AUTHORITIES S5.2

DEPARTMENT OF ENVIRONMENT, HERITAGE & LOCAL GOVERNMENT ARCHITECTURAL HERITAGE PROTECTION GUIDELINES FOR PLANNING AUTHORITIES S5.2.3

PLANNING & DEVELOPMENT ACT 2000 S57(5)

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

GRIANAN AN AILEACH INTERPRETATIVE CENTRE CO LTD v DONEGAL CO COUNCIL 2004 2 IR 625 2005 1 ILRM 106 2004/19/4446

MCMAHON v DUBLIN CORP 1996 3 IR 509 1997 1 ILRM 227

PALMERLANE LTD v BORD PLEANALA & ANOR 1999 2 ILRM 514

CRIMINAL ASSESTS BUREAU (CAB) v HUNT 2003 2 IR 168 2003/10/2095

PLANNING & DEVELOPMENT ACT 2000 S57(3)

PLANNING & DEVELOPMENT ACT 2000 S57(4)

PLANNING & DEVELOPMENT ACT 2000 S57(1)(b)

PLANNING & DEVELOPMENT ACT 2000 S57(7)

PLANNING AND ENVIRONMENTAL LAW

Development

Exempted development - Protected structure - Considerations to be had in making decision as to whether works would materially affect character or relevant element of protected structure - Guidelines - Consideration of guidelines - Misstatement of law in guidelines - O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Grianán an Aileach Centre v Donegal County Council (No 2) [2004] IESC 41, [2004] 2 IR 625, McMahon v Dublin Corporation [1996] 3 IR 509, Palmerlane Ltd v An Bord Pleanála [1999] 2 ILRM 514 and Criminal Assets Bureau v Hunt [2003] 2 IR 168 followed - Planning and Development Act 2000 (No 30), ss 5 & 57 - Certiorari granted (2006/639JR - Edwards J - 3/7/2007) [2007] IEHC 227

Sherwin v An Bord Pleanála

the applicant sought an order of certiorari quashing the decision of the respondent where the respondent declared that certain works to provide for changes to the internal layout of the Church of St. Peter and St. Paul which is a protected structure was a development - but more specifically exempted development. The respondent took the view that the works would materially affect the sanctuary of the church and the structure which was in disregard of s. 57(1) of the Planning and Development Act, 2000. Issues arose over the declaration that the granting of such works to take place were ultra vires the powers of the respondent under the Act.

Held by Mr Justice Edwards that the carrying out of works to a protected structure shall be exempted development only if those works would not materially affect the character of the structure. Mr Justice Edwards ordered that the applicant be granted the relief sought by her in accordance with paragraph 1 of the applicants' statement of grounds and allowing for the matter to be remitted to An Bord Pleanala with a direction that the decision in respect of the applicant's s.5 application be taken again in accordance with the judgment of the High Court.

Reporter: E.C.

1 JUDGMENT delivered by Mr. Justice John Edwards on the 3rd day of July, 2007.

General Outline

2 This is an application brought by the applicant for an order of certiorari quashing the decision of the respondent (An Bord Pleanála) bearing reference 06F R.L. 2291 and dated 5th April, 2006, wherein the respondent declared, pursuant to s.5 (3)(a) of the Planning and Development Act, 2000, that certain works to provide for changes to the internal layout of the Church of St. Peter and St. Paul, Balbriggan, County Dublin, (a protected structure) are development and are exempted development. The grounds upon which the said order of certiorari is sought are that the respondent, having taken the view that the works in question would materially affect the character of the sanctuary of the church and the structure as a whole, granted the said declaration in disregard of the terms of s. 57 (1) of the Planning and Development Act, 2000 and accordingly acted unlawfully and ultra vires its powers under that Act. In addition to seeking an order of certiorari the applicant further seeks an order from this court remitting the matter to An Bord Pleanála with the direction that the decision be taken again in accordance with the judgment of the High Court herein. She also claims the costs of these proceedings.

3 It is necessary to rehearse the facts of the case in a little more detail. However before doing so it may be useful to set out relevant provisions of the Planning and Development Act, 2000.

The Legislation

4 Part III of the Planning and Development Act, 2000 is entitled "Control of Development". Section 32(1) of that Act is in the following terms:-

"Subject to the other provisions of this Act, permission shall be required under this part -"

(a) in respect of any development of land, not being exempted development, and

(b) in the case of development which is unauthorised, for the retention of that unauthorised development."

5 Development is defined in general terms in s. 3(1) of the Planning and Development Act, 2000. That subsection states:-

"In this Act, 'development' means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land."

6 Section 4(1) of the Planning and Development Act, 2000 specifies what shall be exempted developments for the purposes of that Act. There is a long list of categories of developments that are exempted, designated sub-paras. (a) to (l) inclusive and it is not necessary for the purposes of this judgment to recite them all. However, it is appropriate to refer to sub-para.(h) of s. 4(1) which is the following terms:-

"4 - (1) The following shall be exempted developments for the purposes of this Act -"

(h) Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures."

7 "Structure" is defined in s. 2 of the Planning and Development Act, 2000 as meaning any building, structure, excavation, or other things constructed or made on, in or under any land, or any part of the structure so defined, and -

8 (a) Where the context so admits, includes the land on, in, or under which the structure is situate, and

9 (b) In relation to a protected structure or proposed protected structure, includes -

10 (i) the interior of the structure,

11 (ii) the lands lying within the curtilage of the structure,

12 (iii) any other structures lying within that curtilage and their interiors, and

13 (iv) all fixtures and features which form part of the interior or exterior of any structure or structures referred to in subparagraph (i) or (iii)."

14 The expression "protected structure" is also defined in s. 2 as meaning -

15 a "(a) a structure, or

16 (b) a specified part of a structure.

17 which is included in a record of protected structures, and, where that record so indicates, includes any specified feature which is within the attendant grounds of the structure and which would not otherwise be included in this definition."

18 Part IV of the Planning and Development Act, 2000 deals with "Architectural Heritage" and Chapter I of that part of the Act deals with protected structures. Section 51 of the Planning and Development, 2000 provides for the establishment of a record or protected structures which shall include every structure which is, in the opinion of the Planning Authority, of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest within its functional area.

19 Other provisions of Part IV of the Planning and Development Act, 2000 and in particular ss. 52 and 53 are of relevance in this case but I will return to those presently. In the meantime it is appropriate at this point to consider the provisions of s. 57 of the Planning and Development Act, 2000. It is proposed to recite this section in its entirety. The section, which has been amended by s. 13 of the Planning and Development (Amendment) Act, 2002 now provides:-

20 2 "(1) Notwithstanding s. 4 (1)(h), the carrying out of works to a protected structure, or a proposed protected structure, shall be exempted development only if those works would not materially affect the character of -

21 (a) the structure or,

22 (b) any element of the structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest.

23 (2) An owner or occupier of a protected structure may make a written request to the planning authority, within whose functional area that structure is situated, to issue a declaration as to the type of works which it considers would or would not materially affect the character of the...