Grealish v an Board Pleanala

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 02 February 2005
• Neutral Citation: [2005] IEHC 24
• Court: High Court
• Docket Number: No. 695 J.R./2003
• Date: 02 February 2005

[2005] IEHC 24

THE HIGH COURT

No. 695 J.R./2003

GREALISH v BORD PLEANALA

JUDICIAL REVIEW

BETWEEN/

THOMAS GREALISH

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S50

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA & ORS 1995 2 ILRM 125

PLANNING & DEVELOPMENT ACT 2000 S34(10)(a)

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 511989 ILRM 104

WADE ADMINISTRATIVE LAW 8ED 517

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 1142003 2 ILRM 446

PLANNING AND ENVIRONMENTAL LAW

planning permission

Judicial review - Application for leave - Substantial grounds - Duty to give reasons - Adequacy of reasons - Whether reasons must provide rationale for departure from previous decision - Estoppel - Res judicata - Whether previous decision gave rise to res judicata or estoppel - Legitimate expectation - Whether previous decisions gave rise to legitimate expectation - Whether decision unreasonable - Leave granted

The applicant applied for leave to seek by way of judicial review an order of certiorari quashing the decision of the respondent refusing the applicant planning permission for retention for five years of an existing permission relating to a prismatic advertising structure. The applicant also sought a declaration that he had a legitimate expectation that, in the absence of any change in the prevailing circumstances, the respondent would grant planning permission for the proposed developments in the terms as previously granted, and an order of mandamus requiring the respondent to grant such planning permission.

Held by Laffoy J. in granting the relief:

1. That in the circumstances the ground advanced by the applicant that his rights had been breached by the respondent’s failure to provide an explanation for departing from the stance it had adopted previously and its failure to set out the considerations which led to such departure was a substantial ground. Furthermore, the applicant was entitled to challenge the unreasonableness and irrationality of the decision of the respondent.

2. That the ground advanced by the applicant in reliance on the doctrines of res judicata, estoppel and legitimate expectation were wholly unsustainable.

Reporter: L.O’S.

Miss Justice Laffoy

1 This application for leave pursuant to s. 50 of the Planning and Development Act,2000 (the Act of 2000) to seek certain reliefs by way of judicial review is made against the following background and planning history:

2 ••For approximately 30 years there has been an advertising hoarding on the gable wall of the premises at 171 Drimnagh Road in the City of Dublin, a two-storey premises at the junction of Drimnagh Road and Balfe Road, which is now in commercial use. Prior to 1990 the hoarding accommodated static advertisements.

3 ••In 1990 More O'Ferrall Ireland Limited applied to the predecessor of the notice party, as planning authority, for permission to "convert existing advertisement structure to a tri-vision sign …". On 21st May, 1990 the planning authority decided to refuse permission for two reasons stated in its order, which were as follows:

4 2 "1. The proposed development would create a traffic hazard due to its distracting effect on drivers, especially as it is in the line of sight of drivers approaching from the west and as such would be contrary to the proper planning and development of the area.

5 2. The proposed development would be visually obtrusive in the streetscape of Drimnagh Road, seriously injurious to the visual amenities of this area and as such is contrary to the proper planning and development of the area.

6 That decision was appealed to the respondent which, on 26th November, 1990, granted permission subject to two conditions. The first condition stipulated that the tri-vision sign should be capable of displaying three messages only and the frequency of change of the messages should not exceed one change in any period of 20 seconds, so that the total "cycle time" for the display of all three messages should not be less than 60 seconds, and any message, when displayed, should be held on display for a period of not less than 20 seconds. The reason ascribed for the imposition of this condition was to minimise the visual impact of the proposed sign and its potential to distract, to an unacceptable degree, the attention of drivers. The second condition stipulated that the tri-vision sign should be removed from the site not later than 31st December, 1995 and the site should revert to its then current use for static advertising purposes, unless retention permission had been obtained. The reason ascribed for the imposition of this condition was as follows:

"It is considered reasonable, having regard to the nature of the proposed sign and, in particular, its changing display feature, that the planning authority or [the respondent] on appeal should assess the impact of the sign and review the principle of this form of development after a reasonable period of time."

7 The reason ascribed by the respondent for granting the permission subject to the two conditions specified was stated as follows:

"Having regard to the location of the site within a busy commercial district and its long-established use for advertising purposes, it is considered that, subject to compliance with the conditions set out in the Second Schedule hereto, the proposed development would not endanger public safety by reason of traffic hazard, would not be seriously injurious to the visual amenities of the area and would not be contrary to the proper planning and development of the area."

8 ••In 1996 the applicant, who in the interim had acquired an interest in 171 Drimnagh Road, applied to the predecessor in title of the notice party, as planning authority, for "extension of existing planning permission for tri-vision rotating advertising sign on the gable wall". On 4th December, 1996 the application was refused for the reasons stated, which were as follows:

9 2 "1. The proposed development would create a traffic hazard due to its distracting effect on drivers especially as it is in the line of sight of drivers approaching from the west and as such would be contrary to the proper planning and development of the area.

10 2. The tri-vision sign represents an even more strident intrusion on the streetscape than a static sign, detracts from the visual amenities of the area and would be contrary to the proper planning and development of the area."

11 There was an appeal against that decision to the respondent, which on 15th April, 1997 granted permission subject to two conditions. The first condition related to the frequency of the change of the advertisements, stipulating that the total "cycle time" be extended to 90 seconds coupled with a requirement that each advertisement should be displayed for not less than 30 seconds. The second condition dealt with the duration of the permission and provided that the permission was for a period of five years from the date of the order, whereupon the sign should be removed from the site, unless before the end of that period permission for its retention should have been granted. The reason ascribed for that condition was stated to be as follows:

"To enable the effect of the development on the amenities of the area to be reviewed, having regard to the circumstances then prevailing."

12 The reason ascribed for the grant of permission subject to the stipulated conditions was as follows:

"Having regard to the location of the site within a busy commercial district and its long-established use for advertising purposes, it is considered that, subject to compliance with the conditions set out in the Second Schedule, the proposed development would not endanger public safety by reason of traffic hazard, would not seriously injure the visual amenities of the area and would not be contrary to the proper planning and development of the area.”"

13 ••At the beginning of 2003 the applicant applied to the notice party for permission for retention for five years of the existing 6.5m x 3.5m prismatic advertising structure on the gable facing Balfe Road of 171 Drimnagh Road. Once again, by order dated 12th March, 2003, the planning authority, the notice party, refused permission, the single reason ascribed for the refusal being in the following terms:

"It is considered that the proposed sign which measures 6.5m x 3.5m on the gable wall of number 171 Drimnagh Road, fronting onto Balfe Road, is of excessive scale and does not satisfactorily integrate with the design and scale of the building. The proposed sign on the gable elevation would contribute to visual clutter and would seriously injure the visual amenities of the area and would therefore be contrary to the proper planning and development of the area."

14 ••The applicant appealed to the respondent against that decision. An inspector of the respondent reported on the appeal on 21st July, 2003. In her report the inspector described the advertisement structure as being 6.5m x 3.5m in dimension and being located roughly 4m above ground level. She also described it as being illuminated by an overhead light, roughly 6m in length. She concluded that it was excessive in size and scale, being one of three such structures in close proximity. However, given the planning history of this site, she recommended that the structure be retained at a much reduced size. Accordingly, she recommended that permission be granted subject to two conditions: that the structure be reduced in size to a maximum of 3m in height and 4m in width, with the overhead light similarly reduced in width to 3.6m, in the interest of visual amenity; and that the permission be for five years from the date of the order, to...