Hennessy -v- An Bord Pleanála, [2017] IEHC 678 (2018)

Docket Number:2017 No. 927 JR
Party Name:Hennessy, An Bord Pleanála
 
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THE HIGH COURT

JUDICIAL REVIEW[2017 No. 927 J.R.]

BETWEEN

RAY HENNESSYAPPLICANTAND

AN BORD PLEANÁLA RESPONDENTAND

CORK COUNTY COUNCIL

AND CPFMNOTICE PARTIESJUDGMENT of Ms. Justice Murphy delivered on the 27th day of November, 2018

Introduction

  1. The applicant is a solicitor and the owner of a dwelling house situate on lands at Ballylickey, Bantry, Co. Cork. The original planning permission for the dwelling house granted in 2000, restricted its use to that of a caretaker’s lodge servicing a hostel built on the same lands. Both the hostel and the dwelling were contained in Folio CK33776 of the Register of Freeholders of the County of Cork, of which the applicant and his wife were registered owners. In September, 2009 the lands in Folio CK33776 were transferred to Marine Hostels Company Limited, a company owned and controlled by the applicant and his wife. In 2010 the portion of the lands on which the dwelling house is situate were hived off from the main folio and were transferred to the applicant solely, and a new Folio CK144415F was created. The balance of the lands in Folio CK33776, containing the hostel, were sold by a receiver appointed by AIB to CPFM Limited, the second notice party, in February, 2016. Later the same year, in November, the applicant applied to Cork County Council for planning permission for retention of the dwelling house with permanent use. In effect, he was seeking a change of use from a caretakers’ lodge, servicing the hostel, to permanent residential use. The second notice party objected to the proposed change. Cork County Council granted permission for retention with permanent use on 28th March, 2017. The second notice party appealed that decision to An Bord Pleanála. The Board gave its decision on 5th October, 2017 refusing permission for the proposed development. It set out its reasons as follows:-

    “Matters Considered

    In making its decision, the Board had regard to those matters which, by virtue of the Planning and Development Acts and Regulations made thereunder, it was required to have regard. Such matters included any submissions and observations received by it in accordance with statutory provisions.

    Reasons and Considerations

    The development for which retention is sought is located in a village which does not have a public wastewater treatment plant. The development is currently served by a wastewater treatment system located off-site, which has not been demonstrated to be available to the applicant, and therefore, (the development) does not have access to a suitable private wastewater treatment system over which it has sufficient rights to operate maintain and take corrective action as necessary. The development cannot provide an on-site wastewater treatment system to comply with the “Code of Practice: Wastewater Treatment and Disposal Systems Serving Single Houses (p.e.≤10)”-Environmental Protection Agency, 2009. The development for which retention is sought would, therefore, be prejudicial to public health and contrary to the proper planning and sustainable development of the area.”

  2. In this application the applicant seeks an order of certiorari quashing the decision of the respondent dated 5th October, 2017. Secondly, the applicant seeks an order remitting the said decision (Reg. Ref. PL04.248373) to the respondent to be determined in accordance with law and in accordance with such directions and/or observations as to this Court seems meet.

    Detailed factual background to application

  3. In order to understand the decision of the court it is necessary to set out in some detail the factual background to the planning application and appeal.

  4. On 18th March, 1994 the applicant and his wife were registered as owners of land contained in Folio CK33776 of the Land Registry of the County of Cork containing .69 hectares, situate in the townland of Ballylickey, in the barony of Bantry. By order dated 28th January, 1997, the first notice party Cork County Council (the council) granted the applicant planning permission for a hostel and wastewater treatment plant together with an outfall to the sea at Ballylickey, Bantry, Co. Cork (Reg. Ref. W/96/2776). Conditions of that planning which are relevant to this application for judicial review are conditions 8 and condition 9 attached to that permission.

    Condition 8 required:-

    “Foul drainage shall be by means of a proprietary small treatment system which shall meet the requirements of the Irish Agreement Board Certificate No. 92/0033 (second edition). Full details of this including location on site, design, structure, quality and means of disposal of final effluent shall be submitted and agreed before development commences. The capacity of the effluent treatment plant shall be not less than 70 persons equivalent. The exact route of the sewage outfall pipe shall be agreed with the Planning Authority. Discharges of treated effluent shall only take place within a period of one hour following high tide to four hours following high tide.

    Reason: In the interests of public health.”

    Condition 9 provided:-

    “The small treatment plant referred to in the above condition shall be operated and maintained in perpetuity to the satisfaction of the Planning Authority and before development commences, written evidence of a maintenance contract to ensure the continuous operation of the treatment plant shall be submitted and agreed with the Planning Authority.

    Reason: In the interest of public health.”

  5. In 2000, the applicant applied for further planning permission to construct a dwelling house and a domestic garage on the same lands, adjacent to the hostel and the wastewater treatment plant in respect of which planning had been granted on 28th January, 1997.

  6. By order dated 30th May, 2000, the council granted the applicant planning permission for a dwelling and a domestic garage at Ballylickey, Bantry, Co. Cork (Reg. Ref. W/00/1050). Condition 4 of the grant of permission for the dwelling house and garage restricted the use to which the development could be put. It provides:-

    “The proposed premises shall be used solely as a caretaker’s residence and a change of this use shall not take place without the prior Permission/Approval of the Planning Authority…”

    The reason given for the condition was to regulate the use of the development in the interest of orderly development.

  7. Condition 8 of the planning permission for the dwelling house required that the development be connected to the existing effluent treatment plant. This is a reference to the effluent treatment plant required under condition 8 of the grant of the planning permission for the hostel and wastewater treatment plant given on 28th January, 1997. As the entire site was then owned by the applicant and his wife, compliance with this condition presented no difficulty.

  8. In or about September, 2009 all of the lands in Folio CK33776 were transferred to a company called Marino Hostels Company Limited, and it was registered as the sole owner of the lands on 14th September, 2009. Marino Hostels Company Limited was a company owned and controlled by the applicant and his wife.

  9. On 27th January, 2010 Marino Hostels Company Limited transferred to the applicant the lands on which the dwelling house was built. The land area measured .056 hectares and a new folio was created, being Folio CK144415F. The applicant was registered as full owner of those lands on 8th February, 2010. The court notes that when the house and lands on which it was built were sold by his company to the applicant, they were classified as “non-residential”. Stamp duty on the transfer was assessed on that basis. The court notes that the applicant and his wife signed the deed of transfer on behalf of Marino Hostels Company Limited.

  10. In addition to transferring the lands to the applicant, Marino Hostels Company Limited also granted the following easements to the applicant:-

    (1) A general right of way for all purposes over, through and along that part of the retained property on the said Folio as is coloured yellow on the said map and marked “C-D” together with the right, but without imposing an obligation, to keep, repair and maintain the surface thereof.

    (2) The right to place, keep and maintain a sewer pipe over, through and along the line coloured green on the said map and marked with the letters “N-M” together with the right to connect up to the chamber and treatment plant as is coloured green on the said map and together with the right to inspect, repair and maintain the said pipe and for that purpose to enter on to the retained property so affected with or without workmen and equipment but reinstating any damage caused in the exercise of such rights.

  11. At the time of the creation of these easements, the applicant controlled both the dominant and servient tenements, and therefore was at large in relation to the nature and extent of the easements which he created for the benefit of the dwelling house. The court notes, for example, that he conferred on himself the right but not the obligation to “keep, repair and maintain the surface” of the right of way, but did not create a similar right without obligation to keep, repair and maintain the treatment plant.

  12. As of 8th February, 2010 Marino Hostels Company Limited owned that part of the lands which remained in Folio CK33776 and on which the hostel and wastewater treatment plant were situate, and the applicant personally owned the lands that had been carved from Folio CK33776 and put into Folio CK1444515F. The applicant’s easements were registered as a burden on the hostel folio.

  13. Sometime subsequent to that date a receiver appointed by Allied Irish Banks took possession of the lands in Folio CK33776 and on 18th February, 2016 the hostel lands were sold to the second named notice party, CPFM Limited. Some months after that occurred the applicant applied to Cork County...

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