O'Flynn Capital Partners -v- Dún Laoghaire Rathdown County Council, [2016] IEHC 480 (2016)

Parts:O'Flynn Capital Partners, Dún Laoghaire Rathdown County Council
Docket Number:2015 514 JR
 
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THE HIGH COURT

JUDICIAL REVIEW

COMMERCIAL[2015 No. 514 J.R.]IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN

O’FLYNN CAPITAL PARTNERSAPPLICANTAND

DÚN LAOGHAIRE RATHDOWN COUNTY COUNCILRESPONDENT

JUDGMENT of Mr Justice Robert Haughton delivered on the 10th day of August 2016.

Introduction

  1. In these proceedings the applicant challenges by way of judicial review the decision of the respondent, made on the 31st July, 2015, refusing planning permission for the development of a residential scheme on lands located at Beech Park, Old Bray Road, Cabinteely, Dublin 18.

  2. On 8th June, 2015, the applicant applied to Dún Laoghaire-Rathdown County Council (the “Council” or the “respondent”) for planning permission for one hundred and sixty four residential units to be called “Beech Park” on a 5.3 hectare site adjoining the N11. As part of the proposed development, in a rectangular area at the northern extremity of the development site, the applicant also sought planning permission for the construction of a section of roadway, approximately 150 meters in length (“the Druid’s Glen Road”), linking with a planned signalised junction (“junction Q”) on the N11. The Druid’s Glen Road section of the site falls within a “Strategic Development Zone” (“SDZ”), a planning scheme for the Cherrywood area and, when constructed, the road will give critical access for extensive new development on lands to the west of the applicant’s site owned by third parties and falling within the SDZ. However, the bulk of the applicant’s development site, upon which all of the residential units of Beech Park would be constructed, lies alongside the N11 but outside the SDZ. The application also sought permission to construct a spur road within the SDZ to connect Beech Park to the Druid’s Glen Road as access onto the N11 would not otherwise be permitted. It is necessary to refer to the statutory origin and status of the SDZ.

    Strategic Development Zone

  3. On 25th May, 2015, Part IX of the Planning and Development Act 2000 (“the Act”) introduced into Irish planning law the new concept of Strategic Development Zones. Under s. 166 these may be designated by the government “to facilitate” specified development “of economic or social importance to the State”. Before designation is made the Minister for Environment and Local Government must consult with the relevant development agency or planning authority. The SDZ is then designated by Ministerial order. Under s. 168 the relevant development agency or local authority must then prepare a “draft planning scheme” for all or part of the SDZ, which is a detailed written statement and plan indicating the manner in which it is intended the site is to be developed and in particular detailing the matters set out in s. 168(2)(a)-(g). These include the types of development, the extent of proposed development and:-

    “(d) proposals relating to transportation, including public transportation, the roads layout, the provision of parking spaces and traffic management”.

    An “appropriate assessment” of the draft scheme under Natura 2000 must be carried out in accordance with Part XAB. Section 169 then prescribes the process, providing for public consultation, that must be undergone before the draft planning scheme can be adopted by the members of a planning authority. It may then be appealed to An Bord Pleanála (“the Board”). The Board may direct an oral hearing and, following that, may approve the planning scheme, with or without modifications, or may refuse to approve it. In considering its task the Board must “…consider the proper planning and sustainable development of the area and consider the provisions of the development plan, the provisions of the housing strategy, the provisions of any special amenity area order or the conservation or preservation of any European Site…” (section 169(8)).

  4. Once a planning scheme is confirmed “Strategic Development Zone” is now defined under s. 165 as the “site or sites to which a planning scheme made under section 169 applies”. Thus it is no longer the area designated by the Government that is critical but rather the actual site or sites covered by the planning scheme which may, as in the present case, only extend to part of the original area designated as SDZ.

  5. The importance of a planning scheme is the manner in which planning applications for development within the SDZ must then be considered and determined. This is governed by section 170:-

    “(1) Where an application is made to a planning authority under section 34 for a development in a strategic development zone, that section and any permission regulations shall apply, subject to the other provisions of this section.

    (2) Subject to the provisions of Part X or Part XAB, or both of those Parts as appropriate, a planning authority shall grant permission in respect of an application for a development in a strategic development zone where it is satisfied that the development, where carried out in accordance with the application or subject to any conditions which the planning authority may attach to a permission, would be consistent with any planning scheme in force for the land in question, and no permission shall be granted for any development which would not be consistent with such a planning scheme.

    (3) Notwithstanding section 37, no appeal shall lie to the Board against a decision of a planning authority on an application for permission in respect of a development in a strategic development zone.

    (4) Where the planning authority decides to grant permission for a development in a strategic development zone, the grant shall be deemed to be given on the date of the decision.”

    Emphasis is added to wording the meaning of which has particular significance in this case.

  6. It was submitted by counsel for the applicant that the wording of Part IX, and in particular s. 170, show that the objective of the legislature was to facilitate important development in three respects:-

    (i) by providing certainty in that developers are assured that if their planning application is consistent with the relevant planning scheme they “shall” be granted planning permission (subject only to any conditions that the planning authority may lawfully attach);

    (ii) that permissions will be obtained speedily in that the planning scheme has more detail than a Development Plan and is therefore a blueprint to enable matters to progress more quickly – and there is no appeal permitted to the Board; and,

    (iii) that the development is infrastructure led because the planning scheme provides for planned and coordinated development of infrastructures in the planning scheme area.

  7. In my view these are reasonable inferences as to the statutory purpose behind Part IX and from consideration of the wording in Part IX as a whole. They also reflect the views of the Council as expressed in the SDZ, namely the Cherrywood Planning Scheme (“the Planning Scheme”) where it states under s. 1.4. thereof entitled “Background”:–

    “Why an SDZ for Cherrywood?

    It was recognised that Cherrywood had the potential to be a major new residential and employment settlement in the County and the Region in the context of the sustainable provision of all associated social and physical infrastructure.

    The Planning Scheme is capable of providing greater certainty regarding the phasing and delivery of new development, in tandem with the provision of essential infrastructure to serve and facilitate the development. The life of the Planning Scheme is not limited to the legal timeframe set down by the Planning and Development Acts.”

    The Cherrywood Planning Scheme

  8. In 2008 the Government was requested by the Council to consider designating Cherrywood as a SDZ. On 25th May, 2010, Cherrywood became so designated by government order (S.I. No. 535 of 2010). The Council then prepared a draft planning scheme which was put on public display on 29th February, 2012. After a public consultation process the respondent’s elected representatives resolved to make a number of material alterations. These went through further public consultation, and in December, 2012, the elected members resolved to make the Planning Scheme as amended and public notice of this was given on 17th December, 2012. From this decision there were sixteen appeals to An Bord Pleanála. An oral hearing was held over fifteen days in March/April, 2013, before an inspector Mr Tom Tabette. His report of 14th August, 2013, recommended approval by the Board subject to certain modifications. An Bord Pleanála approved the Planning Scheme on 24th April, 2014, whereupon it had the force of law.

  9. The Planning Scheme encompasses approximately 360 hectares of largely undeveloped land situated at Cherrywood between the M50 and the N11, and plans for extensive mixed development including residential, business, retail and recreational, and it is to be served by a road and cycle network as well as the Luas. Part of the site on which the applicant seeks planning permission, some 0.7982 hectares being the rectangular section at the north end of the applicant’s site mentioned above, falls within the Planning Scheme site in “Development Area 5: Druid’s Glen”. The balance of the applicant’s site is located outside the Planning Scheme area. Thus in the normal way the applicant’s planning application, insofar as it concerned property outside the Planning Scheme area, falls to be determined in accordance with the policies and objectives contained in the Dún Laoghaire-Rathdown County Development Plan 2010 – 2016. On the other hand the application for development of the 0.7892 hectares upon which the applicant proposes to construct part of the Druid’s Glen Road, including part of a bridge over the Druid’s Glen and the spur road to Beech Park, fall to be determined under section 170(2). It is central to the applicant’s case that its planning application...

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