Fynes v an Bord Pleanála and Another

JurisdictionIreland
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date14 June 2005
Neutral Citation[2005] IEHC 213
CourtHigh Court
Docket Number283JR/2003
Date14 June 2005
FYNES v BORD PLEANALA
(JUDICAL REVIEW)

BETWEEN

MR. CIARAN FYNES
APPLICANT
-and-
AN BORD PLEANÁLA
-and-
RESPONDENT
FINGAL COUNTY COUNCIL
NOTICE PARTY

[2005] IEHC 213

283JR/2003

THE HIGH COURT

DUBLIN

Costs

Whether costs of application for leave should be awarded to respondent where substantive application refused - Costs awarded to respondent (

Facts: the applicant was granted leave to quash a decision of the respondent refusing planning permission to build a permanent structure on a site which had previously housed chalets which the applicant contended had been used as permanent dwellings on the basis that there had been a want of fair procedures by the respondent in failing to afford him an opportunity to rebut the clear implication of its finding that the chalets had not, in fact, been used as such. The applicant contended, inter alia, that they were exempted developments, a view with which the respondent disagreed with and offered the applicant an opportunity of replying to its opinion that the structures had not been used as permanent dwellings as contended for by the applicant.

Held by Smyth J in refusing the applicant the reliefs sought that the applicant had been given a fair and proper opportunity to make submissions and representations on the matters raised by the respondent and that the substance of the applicant’s case was before the respondent, thereby satisfying the requirements of natural justice. The respondent was entitled to use its own skill and judgment in concluding that the authorised use of the chalets was temporary/holiday homes and not places of permanent residence and, accordingly, there was evidence upon which the respondent could come to their decision.

Reporter: P.C.

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 SCHEDULE 2 PART I

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 10(1)(a)(viii)

DUBLIN CORPORATION v MCGRATH 1978 ILRM 208

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S17

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S7

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S9

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 53

FAIRYHOUSE CLUB LTD v BORD PLEANALA UNREP FINNEGAN 18.7.2001 2001/9/2432

R v LONDON BOROUGH OF HACKNEY EX PARTE DECORDOVA 1995 27 HLR 108

MCMAHON v DUBLIN CORPORATION 1996 3 IR 509 1997 1 ILRM 227

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

FRENCHURCH PROPERTIES LTD v WEXFORD CO COUNCIL 1992 2 IR 268

NAVAN TANKER SERVICES LTD v MEATH CO COUNCIL 1998 1 IR 166

O'KEEFFE v BORD PLEANALA 1993 IR 39

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD v MIN FOR TRANSPORT 1997 1 ILRM 241

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 9

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 10

FINGAL CO COUNCIL v CREAN & SIGNWAYS HOLDINGS LTD UNREP O CAOIMH 19.10.2001 2001/9/2449

GRIANAN AN AILEACH v DONEGAL COUNTY COUNCIL 2004 2 IR 625 2005 1 ILRM 106

B & Q IRELAND LTD v BORD PLEANALA UNREP QUIRKE 10.11.2004

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S9

MCNAMARA v BORD PLEANALA 1998 3 IR 461 1998 2 ILRM 313

APPROVED JUDGMENT DELIVERED BY
MR. JUSTICE T.C. SMYTH ON TUESDAY, 14TH JUNE 2005
1

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the APPLICANT:

MR. E. GALLIGAN SC

Instructed by

BARRY DOYLE

17 PERCY PLACE

DUBLIN 4

For the RESPONDENT:

MR. J. CONNOLLY SC

MS. S. MURRAY BL

Instructed by:

FINGAL COUNTY COUNCIL

MAIN STREET

SWORDS

COUNTY DUBLIN

2

COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THE 14TH DAY OF JUNE 2005
3

MR. JUSTICE SMYTH: The Applicant was granted leave to apply for judicial review of a decision of An Bord Pleanála (the "Board) dated 26th February 2003 (Reg. Ref. Pl. 06F. RF. 1073), made on foot of a reference by the Applicant pursuant to Section 5 of the Local Government (Planning and Development) Act, 1963 as amended for an Order of Certiorari quashing the decision and for a declaration that the said decision was made in breach of fair procedures. The leave granted was limited to the grounds set fort at paragraph E (e) to (j) of the Statement of Grounds, dated 23rd April 2005.

4

The reference related to works carried out and proposed to be carried out by the Applicant to two chalets located on his lands at south Shore, Rush. The works consisted of the refurbishment of one chalet (the western chalet) which involved the replacement of doors and windows, the erection of an extension to the rear of the chalet, the renewal of damaged timber in the wall structure and the building of an outer concrete leaf. These works were carried out between August 2000 and March 2001. The Applicant commenced refurbishment of the second chalet (eastern chalet) in April 2001 and intended to carry out the refurbishment in a similar manner to the work carried out on the western chalet. Between April and May 2001 the Applicant dug the trenches for the rear extension and for the outer concrete leaf. work on the eastern chalet began in April 2001 and was suspended by the Applicant in May 2001 on foot of a request from Fingal County Council who considered that the works being carried out by the Applicant were not exempted development.

5

A letter of 7th March 2002 (Exhibit "CF1" to the Applicant's affidavit sworn on 23rd April, 2003) sought a reference under Section 5 of the 1963 Act "as to whether the works that have been carried out at a site at south Shore, Rush, constitute development. If the works are considered to be development we wish to have clarified whether or not they are exempted development within the meaning of the Planning Acts."

The letter adverts to a number of other matters:-
6

a) "On the site there is a single storey terrace containing three chalets, which are currently occupied: the two chalets, which are the subject of this reference, and the dwelling house of the Applicant. Immediately to the east of the site there is a caravan park, which is also in the family ownership."

7

b) "These chalets have been in existence since 1963, and have been continually occupied by different tenants as places of permanent residence. Therefore, the exempted development, permitted under Class 1 of the Second Schedule of the Local Government (Planning and Development) Regulations 1994 apply."

8

c) "When the tenants vacated the chalets in 1998, prior to refurbishing them, Mr. Fynes had sought planning permission to replace the chalets with two larger dormer bungalows. This application, which also incorporated part of the adjoining caravan park, was refused planning permission both by Fingal County Council and An Bord Pleanála, on appeal."

9

From the foregoing extracts of the letter of reference it is clear that the structures, use and entitlement to claim exempted development (an expression that embraces both structure and use) were raised for consideration by the Board. The Notice Party (the Planning Authority) by letter dated 15th April, 3002 to the Board tendered their comments on the reference as follows:-

"In the opinion of the Planning Authority the works carried out by Mr. Fynes do not compromise exempted development. The attached copies of photos show the nature and extent of the development undertaken. In particular, it is the opinion of the Planning Authority that the owner cannot claim the benefit of the 40 square metre extension under SI No. 181 of 2000 (Local Government (Planning and Development)Regulations 2000 as the extension built included additions to the side of the structure."

"It is the policy of the Planning Authority as set out in the 1999 Development Plan that "The replacement of chalets/seaside huts by dwellings which can be resided in on an all year round basis is prohibited unless the Applicant complies with the rural housing policy of Fingal County Council and the site is suitable for a permanent dwelling."

"The policy is considered reasonable. Allowing these chalets to be replaced and extended as exempted development would seriously undermine this policy and be contrary to the proper, planning and development of the area."

10

The Board very properly forwarded a copy of the letter it had received from the Planning Authority to the Applicant so as to enable him to respond to the point of view therein expressed. The response of the Applicant's adviser (inter alia) was to state that no extension was carried out to the side of the original building, only to the rear, and:

"The Council's policy with regard to the replacement of chalets/seaside huts by dwellings is noted. However these chalets were not for seasonal use, but were continually occupied by different tenants as a place of permanent residence. It is unclear, therefore, how the upgrading of these chalets as exempted development, could undermine the policy by Fingal County Council for conversion of holiday houses to permanent residences."

11

As stated in our original submission to An Bord Pleanála, it is our contention that the works carried out on the refurbished chalet and the extension added to the structure can be considered exempted development as they comply with the Local Government (Planning and Development) Acts 1963-2000 and Part 2 of the Local Government (Planning and Development)...

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