Gerard Dooner and Teresa Dooner v Longford County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 25 October 2007
• Neutral Citation: [2007] IEHC 356
• Court: High Court
• Docket Number: [2007 No.
• Date: 25 October 2007

[2007] IEHC 356

THE HIGH COURT

[No. 457 J.R./2007]

Dooner v Longford Co Council

JUDICIAL REVIEW

IN THE MATTER OF THE SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000

(AS AMENDED)

BETWEEN

GERARD DOONER AND TERESA DOONER

APPLICANTS

AND

LONGFORD COUNTY COUNCIL

RESPONDENT

AND

DAN MAGAN

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S50

BOLAND v BORD PLEANALA 1996 3 IR 435

PLANNING & DEVELOPMENT ACT 2000 S160

HOULIHAN v BORD PLEANALA UNREP MURPHY 4.10.1993 1993/12/3737

O'CONNOR v DUBLIN CORPORATION UNREP O'NEILL 3.10.2000 2000/14/5399

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

PLANNING AND DEVELOPMENT

Permission

Conditions - Agreement with developer - Departure from basis of planning decision - Degree of flexibility permitted - Whether departure from plans and drawings permitted - Whether within permitted degree of flexibility - Whether planning authority had jurisdiction to conclude agreement reached - Boland v An Bord Pleanála [1996] 3 IR 435 distinguished; O'Connor v Dublin Corporation (Unrep, O'Neill J, 3/10/2000) followed - Planning and Development Act 2000 (No 30) s 160 - Rules of the Superior Courts1986 (SI 15/1986), O 63A, r 1 - Certiorari granted (2007/457JR - McGovern J - 25/10/2007) [2007] IEHC 356

Dooner v Longford County Council

The notice party was granted planning permission by An Bord Pleanala following an appeal by the applicants from the decision of the respondent to grant planning permission. The planning permission granted by the Board was subject to certain conditions. In an effort to abide by those conditions an agreement was reached between the notice party and the respondents, whereby it was decided that the main building on the development would be located 14.5 metres to the north-east of its original location. The applicants submitted that the agreement between the respondent and the notice party amounted to a radical departure from the plans submitted to the Board and therefore a new planning application was required.

Held by McGovern J. in quashing the decision of the respondent: That the respondent acted ultra vires in reaching an agreement with the notice party, which permitted an extensive departure from the drawings and plans that had been submitted to An Bord Pleanala and formed the basis of the decision by the Board.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Brian McGovern delivered on Thursday 25th October, 2007

1. The Facts

2 The notice party submitted an application for planning permission under the Planning Acts for construction of a mixed use development in the village of Killashee, Co. Longford. The development consisted of four parts:

3 (i) A three-storey block including

4 (a) a retail unit of 253 sq. metres;

5 (b) a crèche facility of 221 sq. metres; and

6 (c) 5 three-bedroomed town houses.

7 (ii) A two-storey block comprising a restaurant of 205 sq. metres;

8 (iii) Associated car parking, landscaping and other associated external works; and

9 (iv) A connection to a foul water treatment plant.

10 2. The location of the development was shown on plans and particulars submitted to the respondent by the notice party at the time of the application and in further information furnished on the 18th February, 2005 and 13th May, 2005. The applicants, who own a public house across the road from the proposed development objected to the application.

11 3. On the 8th June, 2005, the respondent granted permission to the notice party to carry out the development. The applicants appealed the decision.

12 4. On the 15th December, 2005, An Bord Pleanála granted permission for the proposed development subject to conditions. There were 20 conditions imposed. For the purposes of this case, the following conditions are relevant:

"1. The development shall be carried out in accordance with the plans and particulars lodged with the application as amended by further plans and particulars received by the Planning Authority on the 18th February, 2005 and the 13th May, 2005, except as may otherwise be required in order to comply with the following conditions.

Reason: In the interest of clarity.

11. The two mature walnut trees and the mature beech tree in the vicinity of the agricultural access (as originally proposed) shall be retained on site. These trees shall be protected during the construction period by the erection of stout timber fences which shall extend to the branch spread of each tree. The areas beneath the trees shall not be used for the storage of any soil, topsoil, spoil, waste, construction materials or machinery, site compound or offices, car parking or any other use which could cause damage to the root systems of the trees.

Reason: To protect these trees which contribute in a significant way to the character of the site and of the wider village, in the interests of visual amenity.

15. Alterations to the alignment of the N63, as provided for in the additional information submitted to the Planning Authority on 18th February, 2005, shall be carried out at the expense of the developer, to the standards of, and with the agreement of, the Planning Authority.

Reason: In the interest of traffic safety."

13 5. The notice party responded to the planning section of the respondent through its engineer, Mr. Mark Cunningham. The date of the letter is not clear but it has been stamped by the planning department of the respondent as having been received on 8th January, 2007. In that letter Mr. Cunningham deals with the relevant conditions as follows:-

" Condition No. 1:

The developer shall comply fully with the Condition No. 1 in full from start to completion, accept (sic) as may otherwise be required in order to comply with the following conditions.

Condition No. 11:

In relation to the existing two mature Walnut Trees located to the rear of the site together with the mature Beech Tree, we as Acting Consulting Engineers would like to point out that the existing mature Beech Tree is in our opinion not located on the developer's landholding and in any event in our opinion it is dead. In our opinion it should be removed as soon as possible as it is located in close proximity to the road frontage. In relation to the two mature Walnut Trees please note that the rear of the proposed structure is located approximately 4 to 5 metres away from the centre of the trees and we as Acting Consulting Engineers for the above-mentioned development have appointed a tree surgeon so as to monitor the two existing Walnut Trees and prepare a report on how best to ensure that these trees are protected during the course of construction. In addition, please note that the developer will construct a stout timber fence around the trunk of each tree out as far as possible so as to ensure that the branch spread of each tree is protected as much as possible during the course of construction. Please also note that the area beneath the trees shall not be used for storage of any soil, topsoil or other construction materials or machinery during the course of construction so as to ensure that no damage is caused to the root system of the trees.

Condition No. 15:

In relation to Condition No. 15 of the enclosed grant of Planning Permission by An Bord Pleanála in Appendix A, please note that it is our opinion that the building should be relocated in the north-eastern direction, i.e. in the direction of Longford, so as to facilitate a larger localised carriage widening so as to allow the safe negotiating of the nearby bend for larger articulated vehicles. In our opinion the relocating of this building in the north-eastern direction should be by approximately 2m past the building line of the right-hand gable wall of the building on the opposite side of the road in the south-eastern direction. In relation to the proposed finished floor level of the above-mentioned development, it is our opinion that the finished floor level should be located at a minimum of 150mm above the highest point of the adjacent public footpath."

14 6. On 22nd February, 2007 Mr. Cunningham wrote again to the respondent with particular reference to conditions 11 and 15 (which he erroneously referred to as conditions 10 and 14). He made reference to an arboricultural assessment carried out by J. M. McConville & Associates on behalf of the notice party, which he refers to as " Appendix A" in which it is recommended that the proposed building should be repositioned approximately 14.5m in the north-western direction in order to ensure the protection of the two walnut trees. A revised site layout drawing described as " Appendix B", showing the repositioning of the proposed building in accordance with the recommendations of J.M. McConville & Associates was enclosed. I have already indicated that the reference in the letter to conditions 10 and 14 clearly should have been to conditions 11 and 15. A further error crept in to the letter which seems to have had its origin in the report of J.M. McConville & Associates. This was a reference to the repositioning of the buildings 14.5 metres to the north-west. When the various drawings and plans were produced in the course of the hearing it became immediately apparent that the building could not have been moved to the north-west for two reasons. In the first place it would have brought the building closer to the N63 and secondly it would have encroached upon the walnut trees. It is difficult to understand how this fundamental error was allowed to appear in a report from the arboricultural consultants and then be repeated in the correspondence from a consulting engineer. Sadly, one of the features in this case was a significant element of vagueness and uncertainty in the positioning of buildings, trees and other relevant fixed data on the drawings and maps.

15 7. When An Bord Pleanála...