Freeney v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 09 July 2024
• Neutral Citation: [2024] IEHC 427
• Docket Number: Record No. 2021/1119JR
• Court: High Court

Between/

Paul Freeney

Applicant

and

An Bord Pleanála

Respondent

and

CWC Fairgreen Limited

First Named Notice Party

and

Galway City Council

Second Named Notice Party

[2024] IEHC 427

Record No. 2021/1119JR

THE HIGH COURT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 9 ^th day of July 2024

INTRODUCTION

Preliminary

1 In these proceedings, Mr. Freeney (“the Applicant”) seeks to challenge, by way of judicial review, a decision dated 1 ^st November 2021 of An Bord Pleanála (“the Board”) to grant planning permission to the First Named Notice Party (“the developer”) for a change of use and related works to a premises located at Fairgreen House, Fairgreen Road (Bothar Pairc An Aonaigh), in Galway city. 1

2 By way of further detail, this grant of planning permission was subject to ten conditions and was for a proposed development consisting of a change of use of the ground floor unit of the building at Fairgreen House from retail to gaming use, including the internal reconfiguration and fit out, construction of access and associated lobby area to an existing multi-storey carpark, external signage and branding and all associated and ancillary works and development at the premises known as, and located at, Fairgreen House.

3 Peter Bland SC and Evan O'Donnell BL appeared for the Applicant. Aoife Carroll BL appeared for the Board. The developer did not participate in the hearing. Christopher Hughes BL appeared for the Second Named Notice Party (“the City Council”).

Background

4 The developer had initially applied for planning permission in and around 21 ^st December 2020, for the change of use of the vacant ground floor of the building at Fairgreen House from its previous retail use for car sales to the proposed use as a gaming centre. As just mentioned, this included internal reconfiguration, raising of the floor level in the space facing onto Fairgreen Road, fit out, construction of an access and an associated lobby area adjacent to the multi-storey carpark, external signage and branding along with associated site works. The proposed main entrance was the entrance to the ground floor off Station Road with a secondary entrance being the entrance facing onto Fairgreen Road.

5 Upon consideration of this application, the Planning Authority, (the City Council), issued a Further Information (“FI”) request on 14 ^th April 2021 and this was responded to by the developer on 15 ^th April 2021.

6 The Board's Senior Inspector, Ms. Jane Dennehy, sets out that FI exchange at pages 4 to 5 of her report dated October 2021, as follows:

“ (1) clarification as to consistency with the City Centre (CC) zoning objective and encouragement of viability and vitality in that the proposal involves loss of a retail unit at ground level and would result in a substantial expanse of dead street frontage where it is desirable that active street frontage be maintained. It is submitted that the retail use should not be a constraint on the proposed development and the streets are not principal shopping streets: It is submitted that:—there could be limited expectation only of substantial active frontage even it put to retail use; Significant proportions of façades may be screened by retailers for example Brown Thomas and TK Maxx; Some amount of screening should therefore be totally acceptable and there is precedent to be taken from the adjoining Fairgreen building; It is common place to screen façades at entertainment type uses and revisions proposed are for additional footprint for the shopfront with a visually animated feature presented on the façade.

Similar arrangements for compliance by condition with regard to details was acceptable in the grant of permission under P. A. Reg. Ref. 02/525 for a bar nightclub and live venue. The proposed use is a valuable function in town and cities as demonstrated in ABP decisions for Castlebar. (ABP 308499 and 307948 refer). And with regard to a development in Galway under PL 242694. Extracts are provided.

(2) Clarification of the precise nature of use proposed having regard to the Gaming and Lotteries Act:—The precise layout of equipment is outside planning scope. Machines will vary from gaming or amusement functions including broadcast of live [sic.] sports for adult use only and laid out according to licensing spacing requirements the applicant will comply with any requirements as to forms of entertainment other than gaming would be complied with.

(3) Clarification as to hours of operation: — It is pointed out that the CDP provides for encouragement of public and private [recitation] [sic.] and leisure and amenities with the city having a significant night-time economy. No facilities for smoking are to be provided and noise generated would be no different to that generated by retail stores. Noise levels have been shown to be below the levels generated in bars, night clubs and live venues as demonstrated under P.A. Reg. Ref. 02/525. The application [sic.] would accept a condition for control of noise levels.

(4) Clarification as to possible sale of alcohol: — It is confirmed that it is not intended to sale [sic.] alcohol for consumption on the premises and is willing to accept a condition to that effect.

(5) Clarification as to the status of compatibility with implementation of a grant of permission for a multi sports facility at basement level which includes a café and entrance at ground level:- (P. A. Reg Ref 17/91 refers.) use of the basement area. The applicant confirms that it is not intended to implement the grant of permission under P. A. Reg. Ref. 17/01 [sic.] as it is no longer appropriate and compatible with regard to the proposed removal of access from the ground level”. 2

7 The Board's Senior Inspector, in the October 2021 report, explains that after consideration of the initial application, the FI, the planning history of the site and the plans submitted, the City Council's planning officer indicated concerns as to the precise nature of the proposed use and the loss of potential retail use for the premises at ground floor level, loss of active and animated street frontage and potential adverse impact on regeneration and the vitality and viability of the area and negative impact on residential amenities due to noise and disturbance.

8 Thereafter, on 2 ^nd June 2021, the City Council refused the developer's application for permission for two reasons: first, the proposed development could be accommodated at upper

or lower levels and would result in twenty metres of dead or inactive street frontage on Fairgreen Road and twenty-five metres on Bothar Pairc An Aonaigh and the use would be contrary to Policy 10.2 of the County Development Plan; second, the proposed development, with no restriction on hours of operation, was likely to result in noise and disturbance in noise sensitive receptors, including apartments overhead and student accommodation, notwithstanding the location within the area zoned ‘City Centre’, and it would be contrary to the County Development Plan

9 The developer submitted a first party appeal against that refusal.

10 As just set out, as part of the appeal process, the Board had assigned Ms. Jane Dennehy, a Senior Planning Inspector (“the Inspector”) with the Board to make a written report on the appeal, including a recommendation, which the Board was required to consider before determining the matter. The Inspector carried out an inspection of the site on 15 ^th September 2021 and prepared a report in or around October 2021. That report addressed the following matters: the site location and description, the proposed development, the initial decision of the City Council, the planning history, the policy context, the appeal, the Inspector's assessment, her recommendation including the reasons and considerations and recommended conditions. This report is considered in more detail later in this judgment.

11 As part of its decision-making process the Board sets out what is referred to as “ the Board Direction” and the “ Board Order”. Together, the Inspector's Report, the Board Direction and the Board's Order inter alia comprise the process which explains how and why the Board arrived at its decision.

12 In this case, for example, the Board Direction was signed by the Board member, Dr. Maria Fitzgerald, and it was dated 29 ^th October 2021. It explains that the submissions on this appeal (“this file”) and the Inspector's report were considered by the Board at its meeting held on 29 ^th October 2021 and that the Board, by a majority of 2:1, decided to grant permission generally in accordance with the Inspector's recommendation before it sets out the reasons and considerations for so deciding, together with the ten conditions to which the grant of planning was subject to. As referred to later in this judgment, the Board Direction dated 29 ^th October 2021 (on page 4) also contained the following ‘ Note’ which stated:

“ Note: in deciding to omit the temporary condition proposed by the Inspector, the Board considered that the proposed development would be effectively regulated through the function of the necessary licensing provisions for the development.”

13 Thereafter, on 1 ^st November 2021, the Board granted planning permission to the developer, subject to ten conditions, for the proposed development consisting of a change of use of the ground floor unit of the building at Fairgreen House from its previously permitted retail use to gaming use. As mentioned earlier, the grant of permission also provided for development which included internal reconfiguration and fit out, construction of access and associated lobby area to an existing multi-storey carpark, external signage and branding and all associated and ancillary works and development at the premises at Fairgreen House, Fairgreen Road (Bothar Pairc An Aonaigh), in Galway city as amended by the revised public notice received by the planning...