Hoburn Homes Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 2121
• Docket Number: 131 J.R./1991
• Court: High Court
• Date: 01 January 1993

1992 WJSC-HC 2121

THE HIGH COURT

131 J.R./1991

HOBURN HOMES LTD v. BORD PLEANALA

Judicial Review

BETWEEN

HOBURN HOMES LIMITED AND GORTALOUGH HOLDINGS LIMITED

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1990

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 3 PARA 3

RSC O.84 r26(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

Synopsis:

PLANNING

Development

Permission - Refusal - Reason - Validity - Compensation - Exclusion - Premature development because of priorities in development plan - Ground of refusal ~ultra vires~ planning board - Local Government (Planning and Development) Act, 1990, s. 12 & 3rd schedule, para. 3 - (1991/131 JR - Denham J. - 14/5/92)1993 ILRM 368

|Hoburn Homes Ltd. v. An Bord Pleanala|

WORDS AND PHRASES

"Development"

Planning - Permission - Refusal - Reason - Validity - Applicant - Compensation - Exclusion - Premature development because of priorities in development plan - Ground of refusal ~ultra vires~ planning board - (1991/131 JR - Denham J. - 14/5/92) [1993] ILRM 368

|Hoburn Homes Ltd. v. An Bord Pleanala

1 Judgment given by Mrs. Justice Denham on the 14th day of May 1992 .

2 This is an application for Certiorari by the Applicants by way of Judicial Review in respect of a decision made on the 8th day of April 1991 whereby the Applicants herein were refused planning permission for the erection of 171 dwelling-houses at Maryborough Hill, Douglas, County Cork.

3 Leave to apply for Certiorari was granted by Mr. Justice Carney on the 5th of June 1991 on the following grounds:

4 (1) That it is ultra vires An Bord Pleanala the Respondent herein and the provisions of the Planning Acts 1963 to 1990 in that the Cork County Development Plan contains no order of priority for developments such as is mentioned in the first of the reasons set out in the decision of the Respondent.

5 (2) That it was made on the basis of an error both of fact and law, namely that the Cork County Development Plan indicated a priority of the kind referred to in paragraph 1 of the Schedule of Reasons attached to the said decision, the development plan containing no such indication.

6 (3) That it is ultra vires and of no force or effect by reason of an error, namely the error mentioned above, on the face of the record.

7 (4) That it was made without jurisdiction.

8 (5) That it was made by An Bord Pleanala, the Applicant, on the basis of an error as to jurisdiction.

9 (6) That it is invalid and unreasonable and that it amounts to an attempt to deprive the Applicants of a lawful right to compensation and in depriving the Applicants of the said right the Respondent proceeded to rely on a reason upon which it was not empowered to rely and to exercise a jurisdiction which it was not empowered to exercise.

10 Hoburn Homes Limited applied to Cork County Council for planning permission for a residential development of 171 houses at Maryborough Hill, Douglas, Cork. The application was refused by Cork County Council. Hoburn Homes Limited appealed the said decision of Cork County Council, and an oral hearing was held at the City Hall, Cork on the 27th of February 1991. Following the said hearing An Bord Pleanala by Notice dated the 8th of April 1991 refused permission for the development for the reasons set out in the Schedule to its decision.

11 The decision of An Bord Pleanala was:

"Decision; Pursuant to the Local Government (Planning and Development) Acts, 1963to 1990, permission is hereby refused for the said development for the reasons set out in the Schedule hereto."

12 Schedule

13 (1) Development of the kind proposed on the land would be premature by reference to the order of priority for development indicated in the Cork County Development Plan, which seeks to minimize population expansion in excess of targets in the area in which the proposed development is located.

14 (2) It is considered that, by reason of the proposed layout and density of development in an area designated scenic landscape in the Cork County Development Plan, the proposed development would be visually obtrusive in the scenic rural backdrop of hills and the exposed escarpment south of Douglas, contrary to the reasonable policy stated in the development plan and the proper planning and development of the area.

15 (3) The proposed development, on land not zoned for development, would be premature pending the normal development plan review process and would therefore be contrary to the proper planning and development of the area."

16 The Applicant is opposed to the first reason given in the decision of An Bord Pleanala. It is this reason which is in issue in this case.

17 It is the Applicants' case that the Cork County Development Plan gives no priority whatsoever to the lands in question, that there is no priority for development in respect of these lands, and that there is no indication in the Development Plan that the development proposed is premature by reference to any order of priority for development in the Development Plan. That as there is no indication of any order of priority of development in the development plan in relation to this site the Respondent had no basis in law to find this ground applicable. That thus there was an error of law. That the Respondent acted ultra vires and in excess of jurisdiction insofar as the first reason contained in the Schedule to the decision herein.

18 The Respondent made the case that the first reason for the Board's decision was valid as the priority to which the Board was referring was the global priority as set out in the development plan to minimize the population expansion in excess of certain targets. It was argued that there is a priority list, that the Applicants are on the list even if at the bottom as they are in a scenic area, where the development plan seeks to minimize population explansion in excess of targets.

19 The first reason given by the Respondent for refusing planning permission tracks paragraph 3 of the Third Schedule of the Local Government (Planning and Development) Act 1990, and states:

20 2 "(1) Development of the kind proposed on the land would be premature by reference to the order of priority for development indicated in the Cork County Development Plan, which seeks to minimize population expansion in excess of targets in the area in which the proposed development is located."

21 Paragraph 3 of the Third Schedule of the Local Government (Planning and Development) Act 1990is thus critical to the issues here. The paragraph must be construed carefully. The first words of the said paragraph are "Development of the kind proposed". In this case it is the proposed residential development of 171 dwelling-houses at Maryborough Hill, Douglas, County Cork. The next phrase in paragraph 3 and in the reason given herein is "would be premature". The word "premature" in its general meaning indicates that something is done too early. The word "premature" is defined in the Concise Oxford Dictionary, New Edition, as:

22 a "1 (a) occurring or done before the usual or proper time; too early (a premature decision);

23 (b) too hasty (must not be premature)."

24 This meaning indicates that the action it refers to can be done at a later date but that as yet it is too early to take this action.

25 The next phrase in paragraph 3 of the Third Schedule reads:

"by reference to the order of priority, if any,"

26 This indicates that there may be an order of priority indicated, or there may not be. The fact that no priority is indicated is not a reason for not using this paragraph. Thus the order of priority, if any, is not a decisive factor, the decisive factor must be found elsewhere.

27 The balance of paragraph 3 of the Third Schedule states:

"for development indicated in the development plan."

28 This clearly ties the matter to the Development Plan. The development plan in issue here is the Cork County Development Plan 1986.

29 Thus the key is the word "development" in paragraph 3 of the...