Griffin v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2008] IEHC 394 |
| Court | High Court |
| Date | 05 December 2008 |
[2008] IEHC 394
THE HIGH COURT
AND
AND
AND
PLANNING & DEVELOPMENT(STRATEGIC INFRASTRUCTURE) ACT 2006 S13
PLANNING & DEVELOPMENT ACT 2000 S50
PLANNING & DEVELOPMENT(STRATEGIC INFRASTRUCTURE) ACT 2006 S50A(2)B
KSK ENTERPRISES LTD APPLICANT v AN BOARD PLEANALA & 1994 2 IR 128
McCARTHY & ORS v AN BORD PLEANALA 2000 IR 42
MURRAY v AN BORD PLEANALA 2000 IR 58
PLANNING & DEVELOPMENT ACT 2000 50A(3)(a)
ARKLOW HOLIDAYS LTD v BORD PLEANALA 2007 1 ILRM 125 2006/3/413 2006 IEHC 15
PLANNING & DEVELOPMENT(STRATEGIC INFRASTRUCTURE) ACT 2006 S50A(9)
HARRINGTON v BORD PLEANALA 2006 1 IR 388
FRIENDS OF THE CURRAGH ENVIRONMENT LTD v BORD PLEANALA (NO 2) 2007 1 ILRM 386 2006/24/5090 2006 IEHC 390
PLANNING & DEVELOPMENT ACT 2000 S37(1)(b)
PLANNING & DEVELOPMENT ACT 2000 S146
O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39
PLANNING & ENVIRONMENTAL LAW
Judicial review
Leave - Application for leave - Time limits for service - Whether application served on all mandatory parties within stipulated time limit - Extension of time - Whether good and sufficient reason - No application made to extend time for service - KSK Enterprises Ltd v An Bord Pleanála [1994] 2 IR 128 and Murray v An Bord Pleanála [2000] IR 58 followed; McCarthy v An Bord Pleanála [2000] IR 42 distinguished - Relief - Applicant seeking order directing Board to amend planning conditions imposed - Whether jurisdiction to grant such relief by way of judicial review - Substantial grounds - Function of court in judicial review - Substantial Interest - Issues not raised at oral hearing - Whether issues raised by applicant appropriate for judicial review - Whether issues uniquely in competence of Board - O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Arklow Holidays Ltd v An Bord Pleanála [2006] IEHC 15, (Unrep, Clarke J, 18/1/2006), McNamara v An Bord Pleanála [1995] 2 ILRM 125, Harrington v An Bord Pleanála [2005] IEHC 344, [2006] 1 IR 388 and Friends of the Curragh Environment Ltd v An Bord Pleanála (No. 2) [2006] IEHC 390, [2007] 1 ILRM 386 applied - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), ss 13(6), 13(8), 50A(2)B and 50A(9) - Planning and Development Act 2000 (No 30), ss 37(1)(b), 50 and 146 - Application for leave refused (2008/884JR - MacMenamin J - 5/12/2008) [2008] IEHC 394
Griffin v An Bord Pleanála
Facts: The applicant, a lay litigant, sought to challenge a decision of the respondent to grant permission for a retail development where the Board had imposed 16 conditions. The applicant sought an order of certiorari and an order directing the Board to actually amend the conditions. The applicant sought inter alia a reduction in the building height, an increase in separation distance between floors and the specification of noise levels. An issue arose as to the adequacy of service of the proceedings on a notice party.
Held by MacMenamin J. that the conditions sought by the applicant could not be granted by the Court in the course of judicial review. The applicant was debarred from raising any issue as to floor height. The separation distance between floors was not raised then and could not be raised now. Certain questions that had not been raised by the applicant within time had in fact been dealt with subsequently. A relevant party had not been served and no application had been sought to extend time. The application for leave would fail.
Reporter: E.F.
JUDGMENT of Mr. Justice John MacMenamin dated the 5th day of December 2008.
1. In these proceedings, brought by notice of motion dated 28 th May, 2008, the applicant, who represents himself, seeks to challenge a decision of the respondent (the Board) granting permission for a retail development in Waterford, to Primark/Penneys, the first notice party. This decision was made by the Board on 8 th April, 2008. It has been agreed between the parties that the leave and substantive applications be heard at the same time.
2. On 8 th April, 2008, the respondent decided to grant permission for the demolition of front portions of an existing Penneys store in Waterford and to construct a new three storey building including sales area, stock rooms, office, and staff areas. The planning authority, Waterford City Council, had previously granted a conditional permission. The applicant appealed that decision to the Board. The Board decided to conduct an oral hearing. An inspector nominated by the Board conducted this hearing on 13 th February, 2007. The focus in these proceedings is on what occurred at this hearing. The Board in granting permission on 8 th April, 2008, imposed sixteen conditions.
3. The applicant lives at 2 Blackfriars, Waterford, in close proximity to the development. He challenges the decision of the Board on a number of grounds. He seeks not only an order of certiorari quashing the Boards decision but additionally, an order directing the Board to actually amend the conditions. One issue which the Court must decide is whether there is jurisdiction to grant such relief by way of judicial review.
4. Among the conditions which the applicant seeks to have imposed by the Court are the following:-
(a) a reduction in the building height in the vicinity of his place of residence;
(b) an increase in the separation distance between the first floor of the proposed development on the upper floors;
(c) a requirement that the side walls of the proposed "open roof area" be finished in white coloured render and that the floor plan be finished in light coloured slabs so as to ensure that it reflects light into the rear of the adjoining properties;
(d) a specification that the noise levels from the site measured at noise sensitive locations in the vicinity should not exceed certain specified amounts;
(e) a further specification that no construction or excavation shall take place on specified dates on the site and that there should be a noise attenuation scheme in specified fashion.
5. As a matter of fact, the decision of the Board already includes a number of conditions similar but not identical to those sought by the applicant. These include conditions 12 and 13 which relate to construction, excavation and demolition plans; condition 4, treatment of an open roof area, as well as condition 8, treatment of windows overlooking the applicant's property.
6. The Boards substantive response to the applicant's case is that:-
(i) the conditions now sought to be imposed are planning matters within the specialised expertise of the Board;
(ii) judicial review proceedings are not designed as a substantive appeal in respect of planning matters; and
(iii) the applicant is not entitled to agitate the desirability or otherwise of conditions chosen by the Board on planning grounds in these proceedings.
(iv) The matters on which relief is now sought were not raised at the Board hearing.
(v) There is, additionally, an issue with regard to the service of the parties dealt with at para. 11 of this judgment.
7. The applicant describes himself as being an agent or as being retired. I infer from his submissions in Court that while a lay litigant, he is experienced in litigation over a long number of years.
8. I had the advantage of having been provided with the papers prior to this case being heard in the Commercial Court. I specifically brought to Mr. Griffin's attention a range of consequences that might arise were his application to be unsuccessful. Nonetheless, he decided, even after a period given for reflection, to proceed with this application. It is in many ways misconceived.
9. It will be helpful to set out a chronology of events.
| 3 rd June, 2005: | Planning application lodged with Waterford County Council. |
| 26 th July, 2006: | Application granted subject to conditions by the County Council. |
| 21 st August, 2006: | The applicant lodged an appeal to the Board against such decision and seeks an oral hearing. |
| 13 th February, 2007: | Oral hearing. It is undisputed that the applicant left the oral hearing before its conclusion. It is clear some of the issues |
| raised at the hearing and in these proceedings were dealt with in significantly greater detail after he had left. | |
| 21 st January, 2008: | Inspector's Report submitted. |
| 25 th January, 2008: | Report considered by the Board. The Board decided to defer consideration to a further meeting. |
| 29 th January, 2008: | Board issued direction seeking revised plans pursuant to s. 132 of the Act of 2000, emphasising redesign of front elevation. |
| 31 st January, 2008: | Board issued a notice to the developer under s. 132 regarding design including, inter alia consideration of altered floor levels. |
| 26 th February, 2008: | Developer responded to the Board's request. The Board noted that floor level of the building had been raised to the level of 4.9 ordnance datum with corresponding increase in the height of the building of 400 millimetres. |
| 28 th February, 2008: | Response circulated by the Board stipulating that the last day for reply was 26 th March, 2008. On 25 th March, 2008, the Board received the applicant's only reply, briefly stating that he had sought advice as to the further implications that this would have and seeking a deferment to 26 th... |
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