Irish Hardware Association -v- South Dublin Co. Co., [2001] IESC 5 (2001)

Docket Number:266/00
Party Name:Irish Hardware Association, South Dublin Co. Co.
Judge:Keane C.J.
 
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The Supreme Court

Keane C.J.

Denham J.

Murphy J.

Murray J.

McGuinness J.

266/2000

BETWEEN:

IRISH HARDWARE ASSOCIATIONApplicant/AppellantandSOUTH DUBLIN COUNTY COUNCILRespondentandBARKHILL LIMITEDNotice Party/RespondentandTHE ATTORNEY GENERALNotice Party

JUDGMENT of the Court delivered the 23rd day of January 2001 by

Keane C.J.

The history of this matter is as follows. On the 18th March 1998, the notice party applied to the respondent for permission for a development consisting of retail warehousing at Liffey Valley Town Centre, Fonthill Road, Clondalkin, Co. Dublin. The original application was for five retail warehousing units amounting to some 12,165 square metres, all of which units were to be accommodated under one roof. The respondent sought further information from the notice party and, in its reply, the latter proposed a significant alteration to the former plan in that, instead of five retail warehouse units, there was now to be one "giant unit" of some 9,650 square metres with, on one side, a garden centre of some 2,100 square metres and on the other side a dry goods store of some 1,912 square metres. On the 19th May 1999, the respondent issued a notification of its decision to grant permission and, as no appeal was lodged within the prescribed time, a grant of permission was issued on the 1st July 1999.

The applicant was unaware of the alteration in the plans until shortly before the institution of these proceedings.

On the 11th October 1999, the High Court (Barr J.) gave the applicant leave to apply by way of an application for judicial review for an order of certiorari quashing the decision of the respondent to grant planning permission for the development. While leave was given on a number of grounds, those most strongly relied on by the applicant were:

(1) That the development for which permission was granted was significantly different from the development which was the subject of the application and that, accordingly, the decision to grant permission was unlawful and ultra vires;

(2) That, before deciding to grant any such permission, the respondent should have required the notice party to notify the public of the alterations in the plans for the development;

(3) That the respondent, in dealing with the application, failed to take into account the criteria laid down for such developments in the relevant statutory instrument, because of what was claimed to be a mistaken assumption on their part that, permission having already been granted for the use of the site as a retail park by a permission granted in 1997, the planning issues had thereby been resolved.

Statements of opposition having been filed on behalf of the respondent and the notice party, the application for judicial review came on for hearing before Butler J. In a reserved judgment delivered on the 19th July last, he dismissed the applicant's claim, holding inter alia that the development for which permission was granted was not materially different from that which was the subject of the application but that, in any event, a planning authority was entitled to grant permission for a development substantially different from that originally applied for. The learned trial judge also said that he was satisfied that anyone...

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