Fitzgerald v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 11 November 2005
• Neutral Citation: [2005] IEHC 372
• Docket Number: No. 488 JR/2005
• Date: 11 November 2005
• Court: High Court

[2005] IEHC 372

THE HIGH COURT

No. 488 JR/2005

Fitzgerald v An Bord Pleanala

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING

AND DEVELOPMENT ACT 2000

BETWEEN

MAURICE FITZGERALD

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

KERRY COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

MÁIRE NÍ IARLAITHE

SECOND NAMED NOTICE PARTY

Mr. Justice Roderick Murphy

1 2 1.1 This is an application for leave to quash a decision of the respondent to grant permission for a dwelling on the Ring of Kerry where there was a concern regarding sight lines from the entrance from the dwelling. By a decision dated 12th October, 2004, of the first named notice party, Kerry County Council, refused planning permission for the construction of a similar dwelling described as a dormer dwelling house, garage, septic tank and all associated works at An Charraig, Baile na nGall, Tralee, County Kerry. That refusal was appealed to An Bord Pleanála by Máire ní Iarlaithe, the second named notice party.

2 3 1.2 By decision and order of An Bord Pleanála dated 15th March, 2005, the board granted planning permission being reference PL 08.209562. The decision related to premises on the R.559 on the regional road, the site map in relation to which showed a 55 metre sight line to the west on a straight road and to the east around a slight bend.

3 The planning history noted a previous decision, reference 1281/00. to grant planning permission for a dwelling on the site which was upheld on appeal by An Bord Pleanála subject to the imposition of a condition requiring that "vehicular entrance should be located at the western end of the site frontage". It would appear that Kerry County Council, the first named notice party, did not raise the issue of road safety in relation to that application.

4 1.3 Previously, in July, 1999 the planning authority decided to grant permission for a "traditional house with rooms in the attic" on the site (ref. 3106/98). On a third-party appeal, the board decided to refuse permission for two reasons: the impact on local amenities and the existing houses of the height and mass of the house; and the design being out of character of the area.

5 There had been two previous grants, in 1984 and 1978. In the vicinity planning permission was granted for a small development of five dwelling houses on a site several hundred metres to the west of the appeal site but in November, 2004 the planning authority decided to refuse permission for a dwelling on land immediately east of the appeal site, giving a reason for refusal as being a traffic hazard. The inspector's report also refers to a number of permissions on file for individual dwellings, mainly to the west of the appealed site, being five in number.

6 The site did not have any specific zoning objectives on the Kerry County Development Plan, although the area immediately across the R.558 to the south is designated as a secondary special amenity.

7 5 1.4 This is an application for leave for an order of certiorari quashing the decision of the respondent and a declaration by way of an application by way of judicial review that the said decision is ultra vires, null and void and of no legal effect.

8 It is common case that the applicant, pursuant to s. 50(4) of the Planning and Development Act2000, has a substantial interest in the matter as his property is immediately adjacent to the appealed site and that he has made objections, submissions and observations during the planning process. The applicant firstly bases his case on the unreasonableness of the board's decision insofar as the only reason offered for overruling the single ground of refusal by the planning authority (that of traffic safety, being poor sight lines at the entrance to the proposed development), was because of the existence of a previous council decision granting permission for a similar, although not identical, application.

9 The second ground is that both the council and its inspector allowed themselves to be fettered in the exercise of their discretion to grant or refuse planning permission by the earlier decision.

10 It is necessary, accordingly, to consider the inspector's report.

11 2 2.1 The inspector refers to the R.559 road running in a loop from Dingle town, around the tip of the Dingle peninsula, where a dense network of minor third class roads and tracks run off providing access to the coast and clusters of dwellings in the area. The road is a single carriageway, lacking a footpath or hard shoulder.

12 He refers to the grounds of appeal as being the submission that a sight line of 55 metres can be achieved in both directions from the proposed entrance. Various other arguments were made in favour of the proposed development that are not relevant to this application.

13 Under the heading of "highway safety" the inspector, referring to the council's refusal, says as follows:

"The single reason for refusal relates to highway safety. The reason given is poor sight lines in either direction, but particular concern was expressed by the area engineer at the view east along the R.559 from the proposed access. The plans submitted indicated that this sight line is 55 metres. Normally, I would consider 100 metres to be the absolute minimum that would normally be acceptable on a regional road in a 100 kph zone (although I note that there is a school warning sign at the corner û this has been erected since the last appeal). I observed high speeds during my site visit, but there was a general tendency for motorists to slow down in proximity to the school û but this may not be the case outside school hours.

In my report on the previous appeal on the site I raised the issue of highway safety as “a new issue”. I had strong concerns about permitting any access close to the blind corner to the east although at that time (and in the appeal before that), the planning authority never raised the issue of highway safety.

In the last appeal, the board addressed the issue of highway safety by setting a condition (No. 2) such that the access is set to the western-most corner of the site. The applicant has complied with the general aim of this condition, although it would seem that agreement with the planning authority might be difficult to achieve since they now have decided that it is dangerous in principle.

While I have not changed my opinion that the safety of the road access to this site is questionable, I do not consider that any circumstances have changed since the last appeal to justify a refusal. I therefore conclude that, having regard to the existing permission on the site, a refusal for this reason is not justified."

14 Accordingly, the inspector concluded that the proposed development was acceptable in principle having regard to the previous permission, in particular, condition 2 that access be set to the western-most corner of the site. He therefore recommended that, subject to that and other conditions, planning permission for the proposed dwelling be granted.

15 The reasons and conditions given in the inspector's report as follows:

"Having regard to the planning history of the site, particularly condition 2 of the planning permission PL 08. 12132 granted by the board on 1st June, 2001, it is considered that the proposed development would not constitute a traffic hazard and would otherwise be in accordance with the proper planning in a sustainable development of the area."

16 2 2.2 By board direction, the submissions on the file and the inspector's report were considered at a board meeting held on 14th March, 2005. The board decided to grant permission generally in accordance with the inspector's recommendation, subject to the amendments shown in manuscript on the attached copy of the inspector's draft reasons, considerations and conditions. The reasons and considerations then read:

"Having regard to the planning history of the site, it is considered that the proposed development would be in accordance with the proper planning and sustainable development of the area."

17 The board decided to grant permission in accordance with the plans and particulars based on the reasons and considerations under and subject to the conditions set out below:

" Reasons and Considerations"

18 Having regard to the planning history of the site, it is considered that the proposed development would be in accordance with the proper planning and sustainable development of the area."

19 Then followed ten conditions.

20 The relevant conditions provided that the entrance gates be set back not less than 4 metres from the edge of the public road with wing walls made of local stone being bell-mouthed and not exceeding 1 metre in height in the interests of traffic safety and also surface water at the site not being permitted to drain onto the adjoining public road in the interests of traffic safety.

21 The grounds on which the applicant's case is based are interrelated.

22 It is submitted that the board's decision was unreasonable insofar as the only reason offered for overruling the single ground of refusal by the planning authority, that of traffic safety, was the existence of a previous decision of the board for a similar application.

23 The second was that the board and its inspector allowed themselves to be fettered in the exercise of their discretion to grant or refuse permission by the board's earlier decision to grant permission in respect of a different planning application.

24 The applicant referred toFairyhouse Club & Ors. v. An Bord Pleanála and Meath County Council (Unreported, High Court, Finnegan J., 18th July, 2001), where the court held that the inspector's report had formed part of the reason for the board's decision.

25 The applicant submitted that the inspector's report in relation to the critical issue of traffic safety was not a proper basis for the rejection of the traffic safety objection. The inspector indicated that...