ILLIUM PROPERTIES Ltd v an Bord Pleanála & DUBLIN CITY COUNCIL

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 16 December 2004
• Neutral Citation: [2004] IEHC 403
• Docket Number: 301 JR/2003
• Date: 16 December 2004

[2004] IEHC 403

THE HIGH COURT

T.C. SMYTH

301 JR/2003

ILLIUM PROPERTIES LTD v. AN BORD PLEANALA & DUBLIN CITY COUNCIL

JUDICIAL REVIEW

ILLIUM PROPERTIES LIMITED

Applicant

And

AN BORD PLEANÁLA

Respondent

and

DUBLIN CITY COUNCIL

Notice Party

Citations:

READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1999 S8

SWALLOW & PEARSON LTD V LONDON CO COUNCIL 1953 1 AER 580

MOUSDEN V WEYMOUTH & WELCOME REGIS BC 1960 1 QB 645 1960 1 AER 538

DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD 1982 ILRM 534

DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD UNREP SUPREME 17.5.1983 1983/7/1849

WALSH PLANNING & DEVELOPMENT LAW PARA 4.07

SOUTHEND-ON-SEA CORPORATION 1962 1 QB 416 1961 2 AER 46

DUBLIN CORPORATION V MCGRATH 1978 ILRM 2

SOUTH BUCKS DC V FLANAGAN 2002 1 WLR 2601

XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION 1987 ILRM 659

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

JACKSON WAY PROPERTIES LTD V MIN FOR ENVIRONMENT UNREP GEOGHEGAN 2.7.1999 1999/14/3977

KENNY V BORD PLEANALA 2001 1 IR 565

R V LANCASHIRE COUNTY COUNCIL 1986 2 AER 941

TOWN & REGIONAL PLANNING ACTS 1934–1939

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28

ILLIUM PROPERTIES LTD V DUBLIN CITY COUNCIL UNREP O'LEARY 15.10.2004

APPROVED JUDGMENT OF

MR. JUSTICE T.C. SMYTH

DELIVERED ON THURSDAY, THE 16TH DAY OF DECEMBER 2004

1 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

MR. JUSTICE T.C. SMYTH

2 The applicant seeks leave to apply by way of judicial review against the decision of the Respondent ("the Board") to refuse planning permission for the retention or completion of the installation of a dumb waiter and electrical riser at basement, ground, first, second and third floor at 71 Merrion Square, Dublin (Planning Reg. Ref. 3567/01) which was determined on 6th march 2003. The Applicant advances no less than 15 grounds upon which the relief should be granted.

3 The premises were built sometime in the 1790's and a return was built thereto in approximately the 1850's. It is one of a number of houses forming part of a Georgian square of international renown. It is a listed building, enjoys protected status and is in a conservation area. Before the Applicant acquired both leasehold and freehold of the premises in the year 2000 they had been occupied and used for personal and business premises by a couturier of international reputation for approximately 40 years. During those 40 years a number of alterations were made to the premises (including the installation of air-conditioning).

4 The Applicant in the person of a businessman, one Dermot Desmond, was minded to restore the premises for domestic use when he acquired them in the year 2000 and in that regard engaged a leading firm of Architects to attend to the design and restoration works. That firm advised the Applicant to retain the professional services of a specialist conservation Architect insofar as restoration works were concerned and such expertise was engaged.

5 Furthermore, the Applicant engaged a Project Architect familiar with similar restorations in London and he, with the senior partner in the firm of Architects, were responsible for the drawing up of plans and particulars with regard to the refurbishment of the house. A firm of Planning Consultants were engaged to seek the requisite permission(s) and/or consent(s) necessary to sanction the intended restoration. To date a sum of approximately €6 million has been spent on the project.

The relevant planning history of the premises is as follows:-

6 a (A) Application 3824/00.

"For development consisting of change of use from part business premises and part residential use; and alterations/refurbishments of the property which is a protected structure, comprising of: Interior alterations and refurbishment of windows, railings and elevations; removal of glazed conservatory to rear, demolition of part of two story return and creation of stepped terrace; internal refurbishment of mews dwelling to rear, refurbishment of windows and elevation to mews".

This sought permission-

7 Permission issued subject to conditions on 16th may, 2001.

8 (b) Application 2105/01.

"For development comprising revisions to development previously permitted under Reg. Ref. 3824/00 for alterations/refurbishment of a property which is a protected structure. Revisions to comprise: The removal and replacement of gable wall to rear of original return and including new fenestration; retention of partial removal of floor joists and floorboards, the provision of gallery (plus a void over ground floor), at upper ground floor of rear section of return; retention of removal of secondary staircase and a replacement with replica staircase; reconfiguration of light well and kitchen at basement at rear of house; reconfiguration of permitted new room layout at basement and part of upper ground floor return; alterations to opes inside wall of rear return; alteration to ope at main rear ground floor room to provide access to terrace via new walkway, minor alterations to internal features and finishes; alterations to terrace materials new skylight to roof of return; all at no. 71 Merrion Square, Dublin 2".

This sought permission -

9 This application was the subject of requests for additional information and eventually on 6th November 2001 the Planning Authority purported to issue a notification of a decision to grant permission subject to seven conditions. Condition (6) read as follows-

"(6) The dumb waiter and electrical riser on either side of the fireplace in room RMG. 04 shall be omitted from the development.

REASON: To clarify the extent of the proposed development."

10 This purported decision was challenged within three weeks in judicial review proceedings (record no. 2001 no. 711 JR) taken by the Applicant against the Planning Authority, Dublin City Council. Those proceedings were determined on 15th October 2004, when O'Leary J., in a very detailed and analytical judgment held that the Applicant had planning permission by default in accordance with the plans and particulars first lodged therefor; with the conditions — including condition (6) deleted from the document that issued.

11 Effectively this was an unconditional permission but permitted only that development for which permission was sought in the plans, particulars and specifications.

12 (c) Application 3567/01.

"Development comprising the retention and completion of installation of a dumb waiter and electrical riser at basement, ground, first, second and third floor of no. 71 Merrion Square, which is a protected structure".

This sought permission for—

13 It is of the first importance to note that the Letter of Application dated 4th December 2001 of McHugh Consultants, the firm of planning consultants stated (inter alia) as follows:-

"The need for this planning application arises from the recent notification of decision to grant planning permission given by Dublin corporation under register reference no. 2105/01 on 6th November 2001 condition 6 of which expresslypurported to exclude these two particular items from the development being permitted. The decision of Dublin corporation is acknowledged under protest. This office and the Applicant do not accept that the excluded items were not adequately specified in the statutory planning public notices. However, the Applicant does not have the time required to lodge an appeal to An Bord Pleanála and to wait doing no further work at no. 71 Merrion square until such appeal is determined."

[My emphasis]

14 The issue of the dumb waiter and the electrical riser is specifically taken up in paragraphs 5 and 6 of that letter in this way:-

"It is noted that this condition (i.e. 6 of 2105/01) does not omit the dumb waiter and electrical riser from the basement or the first floor as shown on the drawings submitted. Thus, it would appear that the planning authority have granted permission for the dumb waiter and electrical riser in the basement and the first floor.

(6) Obviously the dumb

waiter/electrical riser in the basement or first floor cannot be practically used without permission also on the ground floor. Thus, this application now seeks full planning permission for a dumb waiter and electrical riser in the basement, ground and first floors and also extending to the second and third floors of the building (the dumb waiter runs from basement to second floor and the electrical riser runs from ground floor to third floor)."

15 The argument is advanced further in paragraph 7 of the letter. This letter is clearly in the nature of a "without prejudice" application — although the Planning Acts do not provide for an application of that character. The letter is written after the High Court proceedings 2001 no. 711 JR where begun; Kelly J. having on 26th october 2001 granted leave to the Applicant to apply for judicial review against the decision of the Planning Authority and also after the Planning Authority itself had filed a Notice of opposition on 30th November 2001 in those proceedings.

16 The Planning Authority, some seven months later on 9th July 2002 (after a number of elements of information, reports and inspection(s)) issued a refusal for two stated reasons. That decision was appealed to the Board who determined the appeal on 6th march 2003 (some 15 months after the making of the application). The Board refused the Applicant permission for the reason set out in the schedule to the decision, which is in the following terms:-

"Number 71 Merrion Square is a protected structure included in the record...