Gleann Fia Homes Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 14 August 2019
• Neutral Citation: [2019] IEHC 618
• Court: High Court
• Docket Number: [2019/40 JR.]
• Date: 14 August 2019

[2019] IEHC 618

THE HIGH COURT

JUDICIAL REVIEW

Haughton Robert J.

[2019/40 JR.]

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

BETWEEN

GLEANN FIA HOMES LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

URSULA O'SULLIVAN

AND

ALAN DUNLEA

NOTICE PARTIES

Planning and development – Planning permission – Leave to appeal – Applicant seeking an order quashing the decision of the respondent granting the notice parties leave to appeal – Whether the respondent was entitled to grant leave to appeal

Facts: The applicant, Gleann Fia Homes Ltd, sought an order quashing the decision of the respondent, An Bord Pleanála, dated 18th December, 2018 granting the notice parties, Ms O’Sullivan and Mr Dunlea, leave to appeal under s. 37(6) of the Planning and Development Act, 2000 the decision of Cork County Council granting the applicant planning permission for a development consisting of the demolition and removal of six partially completed residential units and the construction of sixty residential houses and associated site works at Gleann Fia, Bawnnafinny, Tower, Blarney, Co. Cork (Reg. Ref. 18/05562). The applicant further sought, if necessary, an order quashing the decision of the Board to accept as valid the appeal in respect of the planning permission submitted by the notice parties on 10th January, 2019. It was not disputed that s. 37(6) establishes three criteria which must be established in order for the Board to be entitled to grant leave to appeal. It was conceded by the Board that the applicant for leave to appeal must meet all three criteria. The applicant in its statement of grounds asserted that there was no factual or evidential basis upon which any of the three criteria were met. As to the first, the applicant asserted that the notice parties’ land could not be regarded as “adjoining” the land in respect of which the decision to grant permission was made as it was at a physical remove from the development site. As to the second, the applicant asserted that there was no material difference between the development as applied for and the development in respect of which a decision to grant permission was made by reason of the conditions imposed, only Conditions 1 and 35 being relevant. As to the third, the applicant asserted that the notice parties’ land was not adjoining, and that there was no evidence of affect or material affect to the notice parties’ enjoyment of their land, and/or no evidence of a reduction in value. The applicant further contended that the Board did not give any adequate reasons for its decision to grant leave to appeal.

Held by the High Court (Haughton J) that there was no basis in fact or in law upon which the Board could have treated the notice parties’ lands as “adjoining”. Haughton J held that there was no factual basis upon which the Board could have concluded that Condition 1 and/or Condition 35 caused the permission granted by the Council to differ materially from that for which the applicants applied initially. Haughton J held that there was some evidence before the Board from which it could objectively have come to the view that Condition 1, including the plans and particulars lodged with the further information, and/or Condition 35 could of themselves have led to a reduction in value of the notice parties’ lands. Haughton J held that the weight to be attached to this evidence was entirely a matter for the Board. In light of the court’s decision that there was no basis in fact or in law upon which the first and second criteria could be met, Haughton J held that it was not necessary for the court to further consider whether the decision should be quashed for failure to give reasons.

Haughton J held that there would be an order of certiorari in the terms of relief no. 1 in the statement of grounds, quashing the decision of the Board dated 18th December, 2018 granting the notice parties’ leave to appeal under s. 37(6) of the Act from the decision from the Council to grant the applicant planning permission under Reg. Ref. 18/05562. Further, as the notice parties purported to submit an appeal to the Board on 10th January, 2019 in respect of the Council’s decision, Haughton J held that it was also appropriate to grant the order sought at no. 2 in the statement of grounds quashing the decision of the Board to accept as valid that appeal. As this judgment found that the notice parties could not satisfy the first two jurisdictional requirements, Haughton J held that there was no point to the court remitting the matter to the Board for any further consideration.

Order granted.

JUDGMENT of Mr. Justice Robert Haughton S.C., delivered on the 14th day of August, 2019.

Contents

Page:
1.	Factual Background.	6
2.	The Leave to Appeal Application and Decision.	23
3.	First Issue – s.37(6)(a) – ‘interest in land adjoining land in respect of which a decision to grant permission has been made.’	27
4.	Discussion.	31
5.	Decision.	42
6.	Second Issue – s.37(6)(d)(i) – Material Changes Imposed by Conditions.	43
7.	Third Issue – s.37(6)(d)(ii) – Effect on Enjoyment of Value of Land.	53
8.	Fourth Issue – Lack of Reasons.	56
9.	Orders.	56

1 In these proceedings the applicant seeks an Order quashing the decision of An Bord Pleanála (‘the Board’) dated 18th December, 2018 granting the Notice Parties leave to appeal under s.37(6) of the Planning and Development Act, 2000 as amended (‘the Act’), the decision of Cork County Council granting the applicant planning permission for a development consisting of the demolition and removal of 6 partially completed residential units and the construction of 60 residential houses and associated site works at Gleann Fia, Bawnnafinny, Tower, Blarney, Co. Cork (Reg. Ref. 18/05562) (the ‘planning permission’).

The applicant further seeks, if necessary, an Order quashing the decision of the Board to accept as valid the appeal in respect of the planning permission submitted by the Notice Parties on 10th January, 2019.

2 These proceedings concern the circumstances in which the process by which the Board may permit a person who has not made submissions or observations in respect of a planning application to a local planning authority, may nonetheless be granted leave to appeal a decision to grant a permission to the Board. It concerns the correct interpretation and application of s.37(6) of the Act.

3 The provision that entitles an applicant for planning permission, or a party making observations or submissions, to appeal to the Board appears in s.37(1)(a), which states: -

‘(1)(a) An applicant for permission and any person who made submissions or observations in writing in relation to the planning application to the planning authority in accordance with the permission regulations and on payment of the appropriate fee, may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34.’

4 While this subsection would exclude from the appeal process any member of the public who did not raise any objections or make any submissions or observations, there is an exception provided for in s.37(6), the relevant parts of which read as follows: -

‘(6)(a) Notwithstanding subsection (1)(a), a person who has an interest in land adjoining land in respect of which a decision to grant permission has been made may, within the appropriate period and on payment of the appropriate fee, apply to the Board for leave to appeal against a decision of the planning authority under s.34.

(b) An application under paragraph (a) shall state the name and address of the person making the application, the grounds upon which the application is made, and a description of the person's interest in the land.

(c) […]

(d) The Board, or any member or employee of the Board duly authorised by the Board in that behalf, shall, where an applicant under this subsection shows that–

(i) the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject, and

(ii) that the imposition of such conditions will materially affect the applicant's enjoyment of the land or reduce the value of the land,

within 4 weeks from the receipt of the application grant the applicant leave to appeal against the decision of the planning authority under subsection (1).

(e) […]’

5 It was not disputed that s.37(6) establishes three criteria which must be established in order for the Board to be entitled to grant leave to appeal: -

(a) The applicant for leave to appeal must have ‘an interest in land adjoining land in respect of which a decision to grant permission has been made’;

and

(b) the development in respect of which the decision to grant permission has been made must differ materially from the development as applied for because of conditions imposed by the planning authority;

and

(c) the imposition of such conditions will materially affect the applicant's enjoyment of the adjoining land in which he or she has an interest, or reduce the value of that land.

It was conceded by the Board that the applicant for leave to appeal must meet all three criteria.

6 The applicant in its Statement of Grounds asserts that there was no factual or evidential basis upon which any of the three criteria were met. As to the first, the applicant asserts that the Notice Parties” land could not be regarded as ‘adjoining’ the land in respect of which the decision to grant permission was made as it is at a physical remove from the development site. As to the second, the applicant asserts that there is no material difference between the development as applied for and the development in respect of which a decision to grant permission was made by reason of the...