Hughes and Another v Dublin City Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 12 June 2024
• Neutral Citation: [2024] IEHC 344
• Court: High Court
• Docket Number: [H.JR.2024.0000052]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000, As Amended

Between:

Bronagh Hughes and Andrew Sinclair

Applicants

and

Dublin City Council

Respondent

and

Red Rock Bprkh Limited

Notice Party

[2024] IEHC 344

[H.JR.2024.0000052]

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT of Humphreys J. delivered on Wednesday the 12th day of June, 2024

1 . Vigilantibus non dormientibus jura subveniunt. That principle underlies many procedural rules, and, to take one example, the law in relation to the jurisdictional criterion of time limits has a helpful analogous read-across to the law in relation to exhaustion of remedies. In Krikke v. Barranafaddock Sustainable Electricity Ltd [2022] IESC 41, [2023] 1 I.L.R.M. 81, [2022] 11 JIC 0303 a time limits case, Woulfe J. said at para. 88 that the CJEU had “clearly set [that it was] ‘settled case-law … that, in the absence of EU rules in the field, it is for the national legal system of each Member State to … lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law’” (para. 88). In that case it was “very difficult for the appellants to argue that the time limits in s. 50 make it in practice impossible or excessively difficult to exercise rights conferred by the EIA Directive, in circumstances where they have never sought to apply for judicial review of the compliance decision and have never tested the operation of the time limit rules” (para. 90). Analogously an applicant who never participated in the planning process or sought to judicially review the failure to seek leave to appeal, or to test the operation of the leave to appeal rules, may also be in a difficult situation. At para. 95, Woulfe J. agreed with Donnelly J. in the Court of Appeal ( Krikke & Others v. Barranafaddock Sustainable Electricity Ltd [2021] IECA 217, [2021] 7 JIC 3001): “Provided that the principles of equivalence and effectiveness are complied with, a Member State is entitled to provide particular procedural routes that a person challenging a development or development consent must take. Section 50(2) applies to both issues of pure domestic law and to matters of EU Law.” Hogan J.'s judgment was to similar effect on these matters (see para. 28): “the applicants cannot realistically complain of any supposed difficulties attending the eight-week period because they never actually sought to apply for judicial review … nor, for that matter, did they seek to extend time” (para. 34). The law is clear that an applicant must generally avail of alternative remedies if she wishes to seek judicial review. These applicants failed to properly investigate the planning non-conformity of property they purchased, did not engage a surveyor or otherwise compare the planning permission with the plans of the development as completed or the situation on the ground, took the developer's statements at face value without checking the situation, and failed to take any steps to seek retention permission themselves, even when they had little choice but to acknowledge the non-conformity. They then failed to participate in the developer's application to regularise that non-conformity, and stood majestically aloof from that process on the wobbly ground that they had not been consulted themselves, thus depriving themselves of the automatic right to have recourse to the board. We don't even need to rely on their failure to seek judicial review of the refusal of leave to appeal the retention decision, their failure to sue the developer or anybody else, or even to co-ordinate with the developer to request the latter to appeal, or their failure to challenge the validity of the statutory test for leave to appeal to the board (s. 37(6)(d) of the Planning and Development Act 2000). The question now is whether the former set of failures individually or cumulatively engage the general doctrine, reinforced by statutory provision in the planning context, that an applicant cannot simply challenge a first-instance decision if there are appropriate alternative procedures available that she could avail of, or that she could have availed of but did not.

Geographical context

2 . The development site is in the Bushy Park Road area of Rathgar/Terenure in Dublin 6. It consists of a multi-unit development of 8 dwellings, with 13 car parking spaces, of which only 12 were authorised.

Facts

3 . Permission for the development was originally sought by application no. 3760-18, which was granted on appeal by the board at reference no. ABP-303532-19.

4 . That permission was later amended by applications nos. 3874-19, and 4788-19. Ultimately the permission granted allowed for 8 dwellings and 12 car parking spaces.

5 . The development as constructed however did not conform to the permission, both in terms of number of car spaces (13 rather than the permitted 12) but also in terms of the layout – rather than being parallel to the road some were at right angles.

6 . The applicants purchased this land in an agreement with the developer dated 13th August 2021, agreeing to pay €1.640M for the privilege, not to speak of VAT, stamp duty and transaction costs. The fact that despite such outlay, three years later they have ended up in a painful legal tangle over a parking space is something that would activate the sympathy of a court. But it doesn't have the effect of relieving the applicants from choosing the correct legal route to resolve that problem.

7 . The agreement involved sale to the applicants of the lands marked in red on the map attached to that agreement. In relevant part it comprises the applicant's dwelling and two parking spaces.

8 . On 6th September 2021, Robert Turley of DC Turley & Associates consulting engineers signed a certificate (for their client, the developer), provided to the applicants by the developer, stating that “we are of opinion that the Works as constructed are in substantial compliance with the Planning Permission Order as set out in 5 above, insofar as the development is complete”. Section 5 of the document refers to the permissions mentioned earlier in the judgment. Was that accurate? The applicants say not, something I don't have to decide, although one can note in passing that it possibly depends on how much of the development was complete on 6th September 2021.

9 . Normally, during the conveyancing process, any non-conformity with a permission is addressed one way or the other, one assumes generally by a property survey. In this case, the developer provided the certificate just referred to. That doesn't seem to have been meaningfully challenged or investigated on behalf of the applicants, but was accepted with no questions asked, or at least no effective questions asked and apparently no survey conducted.

10 . A planning application was submitted by the developer seeking retention and planning permission from the council on 20th September 2023. This sought permission for alterations to development previously approved under Reg Ref 3760/18 (as amended) as granted on appeal by the board (ABP Ref 303532) dated 26th June 2019.

11 . This grant of permission was subsequently amended by Reg Ref 3874/19 and Reg Ref 4788/19.

12 . On 20th September 2023, the developer applied to the council for retention permission for:

“[A]lterations to development previously approved under Reg. Ref. 3760/18 (and later amended under Reg. Ref. 3874/19 & Reg, Ref. 4788/19) comprising the omission of Condition 13b as attached to Reg. Ref. 3760/18 and the attachment of the replacement Condition to allow for the provision of a management company and retention planning permission for the revision of the site layout plan to provide 1 no. additional car parking space (total no. of car parking spaces increased to 13 no.) with associated general revision to landscaping areas”. (“The Proposed Development”.)

13 . At the time of the submission of the retention application, the developer appears to have been the registered legal owner of the title. While the applicants say that they agreed to buy the freehold and not merely a long lease (which seems to be borne out in relation to the house at least from the deed of transfer), they also say that they are in course of registration rather than that they have actually succeeded in effecting such registration. That implies that the developer remains the registered owner. Indeed as of the date of the hearing, the original folio is shown as intact on landdirect.ie, with 14 pending dealings.

14 . In box 7 of the application the developer lists itself as the ‘Owner’ of the site of the proposed development.

15 . The box at 7(b) which states “If applicant is not the owner, please state name and address of owner and include documentary evidence of consent of the owner to make the application” is left blank.

16 . A Site Notice was erected dated 20th September 2023. The applicants ignored this and, without making submissions, sat through the procedure, the outcome of which they now complain about.

17 . The council's Road Planning Division prepared a report on 27th October 2023 which recommended:

“Only 12 no. car parking spaces is permitted for the development, and car parking space no. 7 adjacent as per As Built Site Layout Plan dwg. Ref. COM-003.02 shall be omitted”.

18 . This was for stated reasons as follows:

“The current standards apply, therefore the provision of an additional space is in excess of Development Plan Standards, and is not acceptable. However, this division has no concerns with the relocation of the car parking spaces from the east to the northern boundary. Parking space no. 7 adjacent to the vehicular entrance shall be omitted. The space is not suitable for cycle parking due to conflicts with parking and vehicular entrance, however landscaping proposal could be conditioned.”

19 . No submissions were received in response to the...