Griffin v Dublin City Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Pilkington
• Judgment Date: 10 July 2020
• Neutral Citation: [2020] IEHC 507
• Docket Number: [Record No. 2018/100 J.R.]
• Court: High Court
• Date: 10 July 2020

BETWEEN

KIM GRIFFIN, TONY HENRY, NOEL KELLY

AND

PHILIP HUGHES

APPLICANTS

AND

DUBLIN CITY COUNCIL

RESPONDENT

[2020] IEHC 507

Pilkington

[Record No. 2018/100 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Pilkington delivered on the 10th day of July, 2020

1 By order of Noonan J. dated 5th day of February, 2018, the applicants were granted leave to apply by way of judicial review for the reliefs, now within their Notice of Motion, as follows;

(1) An order of certiorari, by way of judicial review, quashing the decision of the respondent made on the 4th day of December, 2017 and notified to the second named applicant by letter dated 7th December, 2017 (“the decision”), whereby the elected members of Dublin City Council decided to approve a local authority owned development proposal at Croke Villas, Sackville Avenue, Dublin 3, under planning register reference 3857/17 (“the proposed development”);

(2) An order of certiorari, by way of judicial review, quashing the report of the Chief Executive number 400/2017 dated 23rd November, 2017 (“the CE report”) which recommended approval of the proposed development, the subject of the decision;

(3) A declaration, by way of judicial review, that in making the aforesaid decision on 4th December, 2017 to approve the proposed development, the subject of the Chief Executive's report number 400/2017 dated 23rd November, 2017, the respondent erred in law and, in doing so, misdirected itself in law, acted in excess of jurisdiction, and in breach of the rules of natural and/or constitutional justice, and/or acted irrationally and/or unreasonable and, consequently, the aforesaid decision of the respondent is ultra vires the powers of the respondent invalid, and of no legal effect;

(4) A declaration, by way of judicial review, that the recommendation contained within the report of the Chief Executive number 400/2017 dated 23rd November, 2017 to approve proposed local authority owned development, the subject of Dublin City Council planning register reference number 3857/2017 was made unlawfully, and/or in breach of their procedure and/or natural and constitutional justice, and/or is irrational and/or unreasonable, and, consequently, the said report of the Chief Executive number 400/2017 is invalid, void and of no legal effect;

(5) Further or in the alternative, a declaration by way of judicial review that in purporting to propose and to approve this development pursuant to s. 179 of the Planning and Development Act, 2000, as amended, and part 8 of the Planning and Development Regulations, 2001, as amended, the respondent has erred in law and in doing so misdirected itself in law by reason of failing to comply with s. 178(6)(d) and s. 175 of the Planning and Development Act, 2000, as amended;

(6) Further or in the alternative, a declaration by way of judicial review, that the respondent failed to conduct a screening exercise for “appropriate assessment”, and consequently the respondent has erred in law, and misdirected itself in law, by reason of failing to comply with the requirement of Regulation 42 of the European Union (Birds and Natural Habitats) Regulations, 2011 (S.I. No. 477 of 2011);

(7) A declaration by way of judicial review that the proposed development, the subject of planning register reference number 3857/17 requires to be made subject to Environmental Impact Assessment by way of application to An Bord Pleanála pursuant to s. 175 of the Planning and Development Act, 2000, as amended;

(8) An order that the said decision of the respondent dated 4th December, 2017, the subject matter of the proceedings herein before referred, be stayed until the determination of the within application for judicial review or until further order or until the stay of proceedings shall have lapsed by reason of the applicants' failure to serve an originating notice of motion herein within any time period prescribed by this Honourable Court;

(9) If necessary, an order providing for the discovery of documentation which is or has been in the power, possession or procurement of the respondent and which is relevant to any issue in these proceedings;

(10) An order directing that s. 50B of the Planning and Development Act, 2000, as amended, applies to the within proceedings;

(11) Thereafter, what might be described as standard reliefs, including further and other reliefs and costs.

2 At the hearing the applicants confirmed they were not pressing and no longer relying upon arguments relating to the requirement of Regulation 42 of the European Union (Birds and Natural Habitats) Regulations, 2011 (S.I. No. 477 of 2011).

3 This development relates to local authority development, created by s. 179 of the Planning and Development Act 2000 and Part VIII of the Planning and Development Regulations 2001. The Orders sought seek to quash the decision of the respondent on 7th December, 2017 in respect of planning proposal 3857/17.

4 In broad terms the proposal relates to development within the immediate environs of Croke Park and is part of an overall development set out within Dublin City Development Plan 2016-2022, which deals with this and other developments within this area, some of which have already been undertaken.

5 This development itself (3857/17) affects the areas of Croke Villas, Ardilaun Square, Ardilaun Road, Sackville Avenue and Sackville Gardens. The Council approval is in the following terms: -

“Location: Croke Villas, Sackville Avenue, Dublin 3

Proposal LAW: Planning and Development Act, 2000 (as amended), Planning and Development Regulations, 2001 (as amended) – Part 8. Proposal: Pursuant to the requirements of the above, notice is hereby given of proposed development within the Strategic Development and Regeneration Area at Croke Villas, Sackville Avenue, Dublin 3.

The works comprise the following:

The clearance of walls and perimeter fencing at Sackville Gardens, Sackville Avenue, Ardilaun Square and Ardilaun Road at the Croke Villas site, the clearance of an existing wall along the boundary between Croke Villas and Irish Rail lands, the construction of a new boundary wall/fence adjacent to Irish Rail lands with new pavement treatments, carriageway, trees, lamp standards, planters and ancillary works along a proposed extension of Sackville Gardens.

The construction of a new Boulevard on Sackville Avenue from the junction with Ballybough Road to Croke Park Stadium, comprising new pavement treatments, carriageway, trees, lamp standards, planters and ancillary works.

The upgrading of pavement finishes, carriageway, street lighting and ancillary items along Ardilaun Road and Ardilaun Square.

The construction of 61 no. apartments in two blocks, Block A along proposed extension of Sackville Gardens and Block B along Sackville Avenue. Area – Block A circa 3355 sq.m, Area – Block B circa 1849 sq.m; with underground parking garage containing parking for 36 cars and 54 bicycles, ancillary plant rooms and storage room, accessed off Sackville Avenue… and ancillary perimeter walling to car park ramp.

Block A is five storeys high along the proposed extension to Sackville Gardens and Ardilaun Square and comprises 2 no. 3 bed apartments on two levels, 1 no. 2 bed apartment on two levels; 27 no. 2 bed apartments, 7 no. 1 bed apartments and 1 no. studio apartment; Block B is four storeys high along Sackville Avenue and the access road to underground car park, and comprises 1 no. 3 bed apartment on two levels, 9 no. 2 bed apartments, 12 no. 1 bed apartments and 1 no. studio apartment.”

6 The applicants have all clearly asserted that their principal area of concern is in respect of that portion of the Part 8 decision which relates to Sackville Gardens, where most of them reside.

7 Sackville Gardens is a small cul-de-sac of six late Victorian houses, built in or around 1850. The houses are two storeys over basement, with cellars running underneath the roadway. It is a narrow road, some four metres in width. The only paved footpath is on the side adjacent to the houses. On the opposite side, there is no footpath but a wall which forms the boundary with the railway. Beyond the railway lies the Royal Canal. It appears there is very little through traffic and the roadway is, in effect, used by its residents and for visitor parking.

8 The cul-de-sac at one end of Sackville Gardens appears to have been established over time by way of a gate or fencing.

9 The impugned approval 385/17 is broadly in three parts: -

a) The construction of 61 new apartments, served by an underground carpark with access from a new laneway to be constructed off Sackville Avenue and running behind the residential properties of Sackville Gardens.

b) The main spectator route to and from Croke Park stadium, described as a “processional boulevard” to be on Sackville Avenue, running from the junction with Ballybough Road to the stadium.

c) With regard to Sackville Gardens, it is proposed that there will be an extension of it as far as Ardilaun Square. Retractable bollards are to be installed for pedestrian access only. The only exception is that Sackville Gardens will be available for emergency service vehicles to Croke Park on what are described as event days. On such days, the route linking Sackville Gardens with Ardilaun Road would become the designated emergency vehicle access route to the stadium. At all other times it is a pedestrian access route.

10 The applicants contend that the proposed development will radically alter Sackville Gardens by transforming what is described by them as a small sleepy quiet cul-de-sac into a major new thoroughfare for pedestrian traffic and also a dedicated route for emergency vehicles.

11 This overall development is within the SDRA (Strategic Development and Regeneration Area) pursuant to the 2016-2022 Dublin City Development Plan and is zoned Z14. The land use zoning of Z14 is: -

“To seek the social, economic and...