Flynn Machine & Crane Hire -v- Wicklow County Council, [2009] IEHC 285 (2009)

Docket Number:2006 467 JR
Party Name:Flynn Machine & Crane Hire, Wicklow County Council
Judge:O''Keeffe J.
 
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THE HIGH COURT

JUDICIAL REVIEW 2006 467 JR

BETWEEN

FLYNN MACHINE & CRANE HIRE LIMITED APPLICANTAND

WICKLOW COUNTY COUNCILRESPONDENT

JUDGMENT delivered by Mr. Justice O'Keeffe on 28th day of May, 2009

  1. On 24th April, 2006 leave to apply for judicial review for the following reliefs was granted to the Applicant herein:- (i) An order of certiorari to quash the Respondent's decision made by Manager's Order dated 8th February, 2006 to issue an Enforcement Notice.

    (ii) An order of certiorari to quash the Respondent's Enforcement Notice dated 8th February, 2006.

    (iii) A declaration that the Respondent's Manager's Order and/or Enforcement Notice dated 8th February, 2006 are/is ultra vires and void.

    (iv) An order of prohibition prohibiting the Respondent from taking any steps and/or commencing any criminal proceedings in pursuance of the Enforcement Notion dated 8th February, 2006 and/or if necessary a stay on such criminal proceedings.

    (v) Further or in the alternative an injunction restraining the Respondent from taking any further steps and/or commencing any criminal proceedings on foot of the said Enforcement Notice dated 8th February, 2006. The grounds on which relief was sought are:-(i) Certiorari by way of an application for judicial review to quash the Respondent's decision made by Manager's Order dated 8th February, 2006 to issue an Enforcement Notice of the same date.

  2. The Respondent is the planning authority for the County of Wicklow in which capacity it made a decision by Manager's Order dated 8th February, 2006 to issue an Enforcement Notice of the same date pursuant to Part VIII of the Planning and Development Act 2000, as amended ("the 2000 Act").

  3. The said decision is ultra vires and void in that it fails to set out the investigation, if any, made by the Respondents so as to enable it to make the decision

    …

  4. The said decision is ultra vires and void in that it fails to state that prior to making this decision, the Respondent considered the matters set out in section 153(3) of the 2000 Act in terms of the representations made to it, submissions or observations made and any other material considerations including the "sustainable" development of the area. [This ground was abandoned and not pursued at the hearing.]

  5. The said decision is ultra vires and void in that at paragraph 3 it orders that the Enforcement Notice be served on the Applicant wrongfully requiring the Applicant to desist from the usage of the site "for any other commercial operation without the prior benefit of planning permission", thus disregarding the established non-conforming business user thereof which the Respondent had previously acknowledged in its decision to grant permission for a bungalow at Crosscoolharbour, Blessington dated 13th March, 1990 per Planning Register Number: 89/005054.

  6. The said decision is ultra vires and void insofar as it orders that the Enforcement Notice be served on the Applicant, but not the person carrying out the development fails to comply with section 154(3) of the 2000 Act in that at paragraph 4 thereof it requires the demolition of a wall located outside the Applicant's property and the removal of the resultant rubble from the site which wall was neither developed nor owned by the Applicant.

  7. The said decision is ultra vires and void insofar as it orders that the Enforcement Notice be served on the Applicant by requiring the Applicant to desist from any other commercial operation it purports to go beyond requiring the alleged unauthorised development to cease.

  8. The said decision is ultra vires and void in that it fails to contain the mandatory provisions set out in section 154(5) of the 2000 Act [This ground was abandoned at the hearing.]

  9. The said decision is ultra vires and void in that it fails to set out the reasons for the Respondent's decision to issue the Enforcement Notice and/or direct their entry in the register.

  10. The said decision is ultra vires and void in that it fails to identify with proper particularity or at all the alleged unauthorised development and/or the land concerned.

    …

  11. The said decision is ultra vires and void in that the Respondent acted capriciously and without reasonable justification in issuing same.

  12. The said decision is ultra vires and void in that it fails to set out that the Respondent considered the matters set out in section 157(4)(a)(i) of the Act.

    (ii) Certiorari to quash the Respondent's Enforcement Notice dated 8th February, 2006 on the grounds

  13. The Enforcement Notice is ultra vires and void in that Manager's Order sanctioning the issue thereof is ultra vires and void.

    …

  14. The said Enforcement Notice is ultra vires and void in that it fails to provide that it takes effect on the date of the service thereof as required by section 154(4) of the 2000 Act and/or to require the steps specified therein to be completed within six weeks of the date of service as required by the said Manager's Order.

  15. The said Enforcement Notice is ultra vires and void in that it fails to refer to and/or to properly identify the land concerned.

  16. The said Enforcement Notice is ultra vires and void in that it fails to comply with a mandatory provision set out at section 154(5) of the 2000 Act.

  17. The said Enforcement Notice is ultra vires and void in that insofar as same is directed to the Applicant but not to the person carrying out the development it fails to comply with section 154(3)(a) of the 2000 Act insofar as it refers to the requirements stipulated at paragraph 1(d) thereof which requires the demolition of wall in its entirety which wall is located outside the Applicant's property and was not development by the Applicant.

  18. The said Enforcement Notice is ultra vires and void in that it was issued in breach of section 157(4) of the 2000 Act and/or section 31 of the Local Government (Planning and Development) Act 1963 ("the 1963 Act") as amended by section 19(1)(a) of the Local Government (Planning and Development) Act 1992 ("the 1992 Act").

  19. The said Enforcement Notice is ultra vires and void in that it wrongfully requires the Applicant to desist from the usage of the site "for any other commercial operation without the prior benefit of planning permission" disregarding the established nonconforming business user thereof which the Respondent had previously acknowledged in its decision to grant permission for a bungalow at Crosscoolharbour, Blessington dated 13th March, 1990 per Planning Register Number: 89/005054

  20. The said Enforcement Notice is ultra vires and void in that by requiring the Applicant to desist from any other commercial operation it purports to go beyond requiring the alleged unauthorised development to cease.

  21. The Enforcement Notice is ultra vires and void in that the Respondent acted capriciously without reasonable justification in issuing same.

    (iii) A declaration that the Respondent's Manager's Order and/or Enforcement Notice dated 8th February, 2006 are/is ultra vires and void.

    (iv) Prohibition or an injunction prohibiting (or restraining) the Respondent from taking any steps and/or commencing any criminal proceedings on foot of the Enforcement Notice dated 8th February, 2006Applicant's Summary of Grounds of Challenge

  22. At the court's request, counsel on behalf of the Applicant, Mr. Eamon Galligan, S.C., summarised the Grounds of challenge as follows:-(a) The said Manager's Order/Enforcement Notice is ultra vires in that it wrongfully requires the Applicant to desist from the usage of the site "for any other commercial operation without the prior benefit of planning permission", thus regarding the established non-conforming business user which the Respondent had previously acknowledged in its decision to grant permission for a bungalow at Crosscoolharbour, Blessington, dated 13th March, 1990. [Grounds E(i)(5) and E.(ii)(8) of the Statement of Grounds].

    (b) The said decision (i.e. the Director of Services Order) is ultra vires and void in that the Respondent acted capriciously and without reasonable justification in issuing same) [Ground E.(i)(12)]

    (c) The said Enforcement Notice is ultra vires and void in that the Manager's Order dated 8th February, 2006, sanctioning the issue thereof is ultra vires and void. [Ground E.(1)1]

    (d) The said Enforcement Notice is ultra vires and void in that it fails to provide that it takes effect on the date of the service thereof as required by section 154(4) of the 2000 Act, and/or to require the steps specified therein to be completed within six weeks of the date of the service as required by the Manager's Order. [Ground E.(ii)(3)].

    (e) The said Enforcement Notice is ultra vires and void in that it was issued in breach of section 157(4) of the 2000 Act [Ground E.(ii)(7)]Background to Application

  23. In an affidavit grounding the application, Ms. Laura Flynn, Company Secretary and Director of the Applicant describes the background to the Respondent's decision of 8th February, 2006, to issue the Enforcement Notice and also the Enforcement Notice itself served pursuant to section 154 of the Planning and Development Act 2000. She asserts that both the decision and the Enforcement Notice make reference to a site in terms, which are extremely imprecise with the decision not giving any address for the site and the Enforcement Notice referring to an address at Ashleaf House, Crosscoolharbour, Blessington, County Wicklow. She states that the terms of the decision and the Enforcement Notice suggest that the unauthorised development to which same refer is the subdivision of the site together with the intensification of usage of an existing roadside entrance, which was previously constructed by the Respondent and was serving the site on the N. 81, with consequential traffic hazard impacts, the establishment of an office facility by way of porto cabin thereon and the erection of a new boundary wall. She claims that the contrary is true that when the Applicant acquired (on 3rd August, 2005) the commercial...

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