HYNES v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 30 July 1998
• Neutral Citation: [1998] IEHC 127
• Court: High Court
• Docket Number: No. 317JR/1997
• Date: 30 July 1998

HYNES v. AN BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

ANNE HYNES

APPLICANT

AND

AN BORD PLEANALA PATRICK JOYCE AND THE MAYOR ALDERMEN AND BURGESSES THE COUNTY BOROUGH OF GALWAY IRELAND AWO THE ATTORNEY GENERAL

RESPONDENTS

[1998] IEHC 127

No. 317JR/1997

THE HIGH COURT

Abstract:

Judicial Review — Certiorari — Planning application — Whether application fundamentally flawed — Whether developer had sufficient interest in property to make valid application — Importance of public knowledge of and participation in planing process — Whether officials of third respondent conniving with developer — De Minimis rule — Local Government (Planning and Development) Act, 1963 (as amended), sections 26, 82 — Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994), articles 18, 19, 23.

On the facts of the case the developer had sufficient interest in the property to make a valid application for planning permission. There was no evidence of either wrongful connivance or of officials acting without proper authority. Minor infringements of the regulations would not be fatal to the validity of the application provided the error did not deliberately mislead the public or work to the disadvantage of the planning authority or the public. Exact compliance with article 18(1)(d) of the 994 Regulations was not required in all cases. The decision of the first respondent was not rendered invalid by the mis-description contained in the planning application form. The High Court so held in refusing the relief sought.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 18

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 18(1)(d)

MONAGHAN UDC V ALF-A-BET 1980 ILRM 64

FRESCATI ESTATES LTD V WALKER 1975 IR 177

MCGARRY, AG V SLIGO CO COUNCIL 1991 1 IR 99

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(2)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)

TOFT, STATE V GALWAY CORPORATION 1981 ILRM 439

MARRY V CONNAUGHTON UNREP O'HANLON 25.1.1984 1984/5/1516

MCCABE V HARDING 1984 ILRM 105

GRANGE DEVELOPMENTS V DUBLIN CO COUNCIL 1987 ILRM 753

MOLLOY V DUBLIN CO COUNCIL 1990 1 IR 96

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 29

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

KEANE V BORD PLEANALA UNREP SUPREME 22.4.1998

FINGLAS INDUSTRIAL ESTATES, STATE V DUBLIN CO COUNCIL UNREP SUPREME 17.2.1983 1983/2/421

INVER RESOURCES LTD V LIMERICK CORPORATION 1987 IR 159

NCE LTD, STATE V DUBLIN CO COUNCIL 1979 ILRM 249

MCDONAGH V GALWAY 1995 1 IR 191

MCCABE V HARDING INVESTMENTS LTD 1984 ILRM 105

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 18(1)(d)

Mrs Justice McGuinness

1 In these Judicial Review proceedings the Applicant seeks an Order of Certiorari to quash a decision of the first named Respondent, An Bord Pleanala ("the Board") made on the 25th day of June, 1997 to grant planning permission to the second named Respondent ("the Developer"), together with certain ancillary Orders. Leave to apply for Judicial Review was granted pursuant to Section 82 of the Local Government (Planning and Development) Act,1963(as amended) by Laffoy J., who gave Judgment on the 10th day of December, 1997. The Order granting leave was made on the 19th day of December, 1997. The grounds upon which the Applicant was given leave were those set out at N(i) to (xxv) in the originating Statement, to which I shall refer later.

2 The chronology of events which led up to the decision of the Board of the 25??? June, 1997 was succinctly and helpfully summarised by Laffoy J. in her Judgment of the 10??? December, 1997 and I can do no better than to rely in the main on that Judgment in setting out the factual background to this application. However, during the period which elapsed between that Judgment and the hearing of this matter before me in July, 1998, a number of further Affidavits were filed on behalf both of the Applicant and of the Respondents, with the result that some additional factual evidence was available to this Court at the hearing of the Judicial Review application. I would summarise the factual background, therefore, as follows:-

3 (a) In or about the 26th day of April, 1996 Mr Gus McCarthy, Executive Planning Officer of the third named Respondent ("the Corporation") was contacted by Michael Condon of M J Condon Limited, Architectural and Industrial Consultants, on behalf of Patrick Joyce, the Developer. He discussed with Mr McCarthy the possibility of the development, by his client, of lands at Shangort, Knocknacarra, Galway, and informed Mr McCarthy that his client's lands adjoined land owned by Galway Corporation. Mr McCarthy, who was unaware at the time of these lands, confirmed with the relevant section of the Corporation that the lands in question had in earlier years been acquired by Galway County Council by Compulsory Purchase Order for road widening purposes. The land had come into the ownership of the Corporation due to a subsequent extension of the boundaries of Galway County Borough. It appears that some of the land originally acquired had in fact been used for road widening purposes, but according to Mr McCarthy (in his Affidavit sworn the 19th March, 1998) the remaining lands were "never likely to be used for road improvement purposes and were in effect redundant." On the 8th May, 1996 Mr McCarthy had a meeting with Mr Condon at which Mr Condon showed him a drawing of the proposed development, which at that stage referred only to the developer's own lands. Mr McCarthy states that"it was agreed between myself and Michael Condon that it would be a good idea from the point of view of proper planning and development of the area that his clients would include the said lands belonging to Galway Corporation as part of their planning proposal. I say and believe that this was a sensible approach to take from a planning point of view although in stating this I was not giving him any undertaking, promise or commitment that Galway Corporation would convey these lands to him." In late May or early June, 1996 Mr Condon showed Mr McCarthy a further drawing which included proposals for the inclusion of the Corporation's land in the proposed development. Mr McCarthy had no further input in the entire matter and at no stage was any account of these pre-application negotiations placed on the planning file of the application which was eventually decided by the Board on the 25th June, 1997. I accept, however, that these discussions did take place and indeed Mr McCarthy's evidence as to the discussions is not challenged by the Applicant.

4 (b) On 15th July, 1996 the Corporation received an application for planning permission from the Developer. The application which was dated 12th July, 1996 was on the Corporation's standard Planning Application Form. The proposed development was briefly described as the erection of three detached houses, one manager's apartment, a community centre, shops/retail areas including related offices and storage, banking facilities and petrol filling station. The postal address of the site was given as Shangort, Galway, and its area was given as 1.69 hectares. Question 4 on the form required the Applicant to state the Applicant's legal interest in the estate or site (freehold, leasehold etc) and there followed a caveat that, if the Applicant was not the owner, to "enclose from owner a consent form to making of application". The answer given to question 4 by the Developer was"owner". The application was accompanied by six drawings, one of which, drawing 1, was a site plan. This depicted a roughly triangular shaped site bounded on the north by Shangort Road, on the west by Clybaun Road and on the south by a road from Galway city centre to Barna - the Kingston Road. Part of the area for development shown on the site plan was indicated as being represented by the letters a - b - c - d - a and as being "land subject of CPO by Galway County Council for future road widening". The part in question is not easily identifiable (and indeed even with the additional evidence available at the full hearing it was clear that the demarcation of the Corporation's actual lands posed a considerable problem). It constituted a strip of land on the Clybaun Road frontage widening out into a roughly triangular shaped area at the junction of Clybaun Road and Kingston Road. The size of this triangular shaped area was indicated by Junior Counsel for the Applicant, Mr Comerford, as being not large enough to accommodate a house but possibly large enough to accommodate a kiosk. The development, as depicted on the site plan, on this part, which I will refer to as "the Corporation lands", would have comprised a planted and grassed area and about a dozen car parking spaces. It is common case that that area was not and is not owned by the Developer. It was, as I have said, owned by the Corporation, having earlier been acquired by Galway County Council for road widening purposes and having subsequently devolved to the Corporation in consequence of the alteration of the County Borough Boundary. The evidence adduced by the Applicant is that the overall area of the development site is 3.9 acres, and that the Corporation land measures about .75 acres. The evidence adduced by the Corporation is that overall the development site comprises 4.176 acres whereas the Corporation lands measure .58 acres. It is not necessary for me to resolve this conflict of fact as to the exact areas of land concerned. It is sufficient to say that the Corporation land formed a relatively small proportion of the lands in question and that in the main it consisted of a narrow strip, in some places as little as two feet wide.

5 (c) There...