Fitzgerald v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 20 October 2019
• Neutral Citation: [2019] IEHC 890
• Docket Number: [2019 No. 151 J.R.]
• Court: High Court
• Date: 20 October 2019

BETWEEN

ORLA FITZGERALD

APPLICANT

AND

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

TUDOR HOMES LIMITED

NOTICE PARTY

[2019] IEHC 890

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

[2019 No. 151 J.R.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Judicial review – Permission – Residential development – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the notice party’s application to the respondent should be remitted

Facts: The applicant, Ms Fitzgerald, commenced judicial review proceedings in March, 2019 seeking various reliefs arising from a decision of the first respondent, Dun Laoghaire Rathdown County Council, dated 18 January, 2019 to grant permission to the notice party, Tudor Homes Ltd, for a substantial residential development in Brennanstown, Dublin 18, within the Cherrywood Strategic Development Zone. The applicant challenged the Council’s decision on a number of grounds. The proceedings were entered in the Commercial List on the application of the notice party in April, 2019. In early June, 2019, the Council wrote to the applicant (and the other parties) indicating that it was prepared to consent to an order of certiorari quashing the decision on a particular basis and to an order remitting the notice party’s application to the Council on certain terms as well as conceding the costs of the proceedings up to the date of its letter. The terms of that concession were not accepted by the applicant. A hearing was directed as to whether orders should be made on the terms proposed by the Council.

The High Court (Barniville J) proposed making orders in the following terms: (1) an order of certiorari quashing the decision of the Council, dated 18th January, 2019 to grant permission for planning application register reference DZ18A/0208 on the ground that the decision failed adequately to record the reasons for the first respondent’s conclusions based on its preliminary examination of the development under Article 103 of the Planning and Development Regulations 2001 (as amended); (2) an order remitting planning application register reference DZ18A/0208 to the first respondent, such remittal to take effect from the point in time immediately before the first respondent commenced its planning application assessment after it had received further information from the applicant for the permission on 14th December, 2018, and all subsequent valid submissions, observations and reports including those received on foot of the public notices of significant further information; (3) an order deeming that the time period set out in s. 34(8)(b) of the Planning and Development Act 2000 (as amended) shall, in respect of the application remitted, expire two weeks from the date of the perfection of the orders made; (4) an order for the applicant’s costs as against the first respondent, at least up to the date of the first respondent’s letter dated 21st June, 2019, to include all reserved costs, to be adjudicated upon in default of agreement; (5) such further or expanded order for the applicant’s costs as may be made by the Court following such further submissions as may be required or as may be agreed between the parties.

Barniville J held that he would discuss further with counsel the precise terms of the above orders or of any further orders as may be necessary once the parties had the opportunity of considering the terms of this judgment.

Applicant succeeded in having the decision of the Council quashed. Respondent and notice party succeeded on the question of remittal.

JUDGMENT of Mr. Justice David Barniville delivered on the 20th day of December, 2019

Introduction

1 This judgment deals with a number of issues which arose in the course of judicial review proceedings which were commenced by the applicant in March, 2019 and in which the applicant seeks various reliefs arising from a decision of the first named respondent, Dun Laoghaire Rathdown County Council (the “Council”), dated 18 January, 2019 to grant permission to the notice party, Tudor Homes Limited, for a substantial residential development in Brennanstown, Dublin 18, within the Cherrywood Strategic Development Zone. The applicant challenged the Council's decision on a number of grounds. The proceedings were entered in the Commercial List on the application of the notice party in April, 2019. In early June, 2019, the Council wrote to the applicant (and the other parties) indicating that it was prepared to consent to an order of certiorari quashing the decision on a particular basis and to an order remitting the notice party's application to the Council on certain terms as well as conceding the costs of the proceedings up to the date of its letter. The terms of that concession were not accepted by the applicant. A hearing was directed as to whether orders should be made on the terms proposed by the Council. This is my judgment on that question.

2 This judgment, therefore, deals with the terms of the order of certiorari which the Council has conceded should be made and the question as to whether the notice party's application for permission should be remitted to the Council and, if so, the point in time in the process to which such remittal should be made.

3 In considering those issues, I will first outline the nature of the notice party's application for permission, the decision by the Council on the application and the challenge brought by the applicant to that decision. I will then outline the relevant statutory provisions before turning to the submissions advanced by the parties in respect of the order of certiorari and the terms of the remittal proposed by the Council. Finally, I will set out the relevant legal principles before providing my conclusions on the contested issues.

The notice party's application for permission

4 On 9th March, 2018 the notice party made an application to the Council for permission for a residential development consisting of the construction of 367 residential units and associated works on a site of approximately 6.57 hectares at Lehaunstown Lane, Brennanstown, Dublin 18. The proposed development is intended to be carried out within the Cherrywood Strategic Development Zone which is an area designated as a strategic development zone (“SDZ”) under Part IX of the Planning and Development Act, 2000 (as amended) (the “2000 Act”). In April, 2014, a planning scheme for the Cherrywood SDZ was approved by An Bord Pleanála (the “Board”), pursuant to s. 169 of the 2000 Act. The notice party's application for permission for the development at issue was made pursuant to s. 34 of the 2000 Act, subject to the provisions of s. 170 of that Act which applies to applications for permission in respect of developments in a SDZ.

5 Several submissions or observations were made by interested parties in respect of the notice party's application. Many came from local residents, including the applicant whose family home shares a boundary with part of the site of the proposed development. A separate submission was made by the applicant's husband. The main issues raised in the submissions and observations made in respect of the notice party's application were summarised in a document exhibited at Tab 6 of exhibit “OF1” to the affidavit sworn by the applicant on 14th March, 2019 for the purpose of grounding her application for judicial review. The document is a Council document entitled “Record of Executive Business Chief Executive's Order” and it was stated by the Council in correspondence with the applicant that the document constitutes the decision of the Council on the notice party's application.

6 The issues raised by the applicant in her observations in respect of the notice party's application concerned the effect the development would have on the privacy of her home, the boundary delineation, the extent and timing of the construction works, the impact of dust and dirt, noise pollution, the height of one of the apartment blocks included within the development and issues in relation to the removal of hedgerows.

7 Having considered the observations made, reports from statutory bodies and internal reports from different sections of the Council, the Council decided to seek further information from the notice party on 2nd May, 2018. Further information was provided by the notice party on 14th December, 2018. The Council considered that the further information provided by the notice party contained significant additional data which required the publication of further notices by the notice party. According to the decision, new public notices were considered necessary as a result of certain alterations to the application including a change in the number of overall units proposed (a reduction from 367 units to 364 units) and an alteration of the boundary of part of the site as well as certain other changes in the application. A further site notice and further advertisements were placed by the notice party informing the public that significant further information and revised plans in relation to the application had been furnished to the Council and were available for inspection or purchase and that submissions or observations in relation to the further information and revised plans could be made in writing to the Council, not later than two weeks after receipt of the newspaper notice and site notice by the Council. Those notices were received by the Council on 14th December, 2018. The notices were placed on the site and in the newspapers on the same date.

8 Further submissions and observations were received on foot of those notices. They were mainly from local residents, including the applicant and her husband. The applicant's further observations were received by the Council on 7th January, 2019. In addition to these further observations, an updated report...