Jerry Beades Construction Ltd v The Right Honourable Lord Mayor Alderman and Burgesses of the City of Dublin and Others

JurisdictionIreland
JudgeMr. Justice William M. Mckechnie
Judgment Date07 December 2005
Neutral Citation[2005] IEHC 406
Date07 September 2005
CourtHigh Court
Docket NumberRECORD Nos. 283/1995 JR
Between:
Jerry Beades Construction Limited
Plaintiff
and
The Right Honourable the Lord Mayor Alderman and Burgesses of the City of Dublin, an Bord Pleanála, Ireland and the Attorney General
Defendants

2005 IEHC 406

RECORD Nos. 283/1995 JR

1996/1239 P

THE HIGH COURT

JUDGMENT of Mr. Justice William M. Mckechnie delivered on 7 th day of September, 2005.

1

Mr. Jerry Beades, who is the owner of the plaintiff company, has for more than 25 years, either personally or through a corporate entity, carried on the business of a building contractor and developer in the greater Dublin area. As he has exclusive control of that company, I have on occasions in this judgment, where the context permits, used his name and that of the plaintiff interchangeably. The first named Defendant is sued as the planning authority for its administrative area in Dublin with the second named Defendant being a party as the statutory body entrusted to hear and determine appeals, inter alia, from that planning authority. Ireland and the Attorney General have been joined to answer a challenge that a particular section of the then Local Government Planning and Development Act 1963 was unconstitutional. Though starting life as a judicial review application, this case, by direction of the court on the leave application, was converted into and thereafter continued by way of plenary proceedings.

2

The structure within the Planning Department of Dublin Corporation at the relevant time would appear to have been as follows. There was an Assistant City Manager with delegated power to make the ultimate decision on all planning applications. He was Mr. Derek Brady. There was a Dublin City Planner whose name was Mr. McCarron, who had a Deputy called Mr. Patrick McDonnell. Directly underneath Mr. McDonnell were three senior planners each of whom was assigned to a different section of the city. In this case at the relevant time the senior planner for the inner city, where the site in question was and is located, was Mr. Michael Gough. Junior to Mr. Gough were two senior executive planners one of whom was Mr. James Muldowney and more junior still were a number of executive planners and assistant planners. A Mr. Rory O'Byrne was a Planning Inspector. There was then a Principal Officer dealing with planning matters whose name was Mr. Joe Scully. There was also of course the Enforcement Section.

In addition, as part of its wider responsibility Dublin Corporation, which is now titled Dublin City Council had a number of teams or committees who in a variety of ways were involved in the planning and development of the city. One was the Development Coordinating Committee which met monthly and a second was the Development Advisory Team which usually held its meetings on a Tuesday. There were also other groups which met from time to time. Virtually all significant planning decisions and all matters of substance involving the proper planning and development of the city, were raised and discussed at one or other of these said meetings.

As senior planner for the inner city all planning applications for that area, once lodged, would find their way onto Mr. Gough's desk. He would then have the power and responsibility to distribute them to his staff including his executive planners. Normally he himself did not deal with single applications but rather concentrated on the more substantial or technical ones. When dealing with a planning application it would be Mr. Gough's usual practice to consider the documentation as submitted, to review any enforcement file in respect of the property in question or any planning file relative to an adjacent property to carry out a site inspection, to have discussions with the applicant or his agent if so requested, and thereafter, to make a written recommendation in respect of the application. That recommendation could contain a number of conditions whether he was disposed to grant or refuse the permission. It would then be sent to the “Decisions Unit” within the Planning Section. There it would be prepared for submission to the Assistant City Manager and would be accompanied by a “green form”, which in effect amounted to a draft manager's order reflecting the recommendation contained in the report. The ultimate decision would then be made by the said Assistant City Manager.

3

In this case there are a variety of allegations made against Dublin City Council and its officials, in particular Mr. Muldowney and Mr. McDonnell. Broadly speaking it is claimed; firstly that by reason of bias and pre-judgement neither of these individuals should have been involved in the planning retention application made by Mr. Beades; secondly that they acted contrary to natural and constitutional justice in the manner in which they processed that application; thirdly that this unfair and discriminatory treatment heavily influenced the selective documentation which was sent to An Bord Pleanála, to whom Mr. Beades had appealed, and fourthly the Board, though completely innocent when making its decision, was nevertheless oblivious to the true circumstances.

All of this means, accordingly to the Plaintiff that both individually and/or collectively the decision making process adopted by the planning authority, and/or the decision of that body and/or the decision of An Bord Pleanála were all tainted with unlawfulness which in the circumstances of the case should attract from this court the relief sought.

In addition, at the commencement of these proceedings, the plaintiff company faced the not inconsiderable obstacle of the two month time limit imposed by s. 82 (3A) and (3B) of the 1963 Act as inserted by s. 19 (3) of the Local Government (Planning and Development) Act, 1992. As the judicial review papers were not lodged until 11 months after the decision of An Bord Pleanála and so evidently even longer after the decision of the planning authority, it was obvious that the defendants would raise this statutory time bar. Hence the constitutional challenge. However at the conclusion of the evidence it was noted that the High Court was about to deliver judgment on an identical point in the case of White v. Dublin Corporation [2004] 1 I. R. 545 and as a result, all of the parties requested this court to defer judgment, until that decision and any appeal therefrom, had been determined. In June 2004 the Supreme Court declared this time limit to be unconstitutional with the result that this statutory provision is not now relevant to this case. Accordingly whilst I have heard submissions from the parties on what consequences might follow from the White decision, I do not believe that the previously existing time bar has any further relevance and consequently in my view, this matter is no longer a live issue in the case.

4

At the junction of Dorset Street Lower and Hardwicke Place Dublin 1, there stands a licensed premises know as “Kavanaghs” or “The Temple”. Immediately adjacent towards the Hardwicke Place direction, there is a site known as No. 2 Hardwicke Place, which property is now the subject matter of this application. In 1992/1993 both properties were owned by Mr. Beades' Mother-in-Law, though the public house was held in the name of her family company. Having carried out urgent and substantial works of repair, renovation and improvement to that premises, Mr. Beades was offered, in lieu of payment, site No. 2. This lose arrangement was sufficient to enable Mr. Beades to explore the development potential of the property. Accordingly, having engaged architects, a planning application was lodged with Dublin City Council on 6 th May, 1993. Being aware of the adjacent Hardwicke Place flats, Mr. Beades always intended that the roof of any building on site No. 2 should be at least one floor level above the roof of the adjoining flats. This, so as to prevent access being gained, by way of the roof tops, and accordingly the developer saw this feature as a security measure. This view was reflected in the original drawings submitted to Dublin City Council.

5

In setting out the following, as a bald chronology of the formal dates and events surrounding this application, it is necessary to immediately indicate that these facts do not by themselves demonstrate the essence of the dispute between the parties. Further matters must be outlined and these appear later in this judgment.

  • • 6/ 5/1993: A planning application is lodged seeking “retention of existing archway and entrance door at ground floor and erection of two bedroom apartments at first second and third floors”, on the site in question. The reference to “retention” does not imply the existence of a previous planning application,

  • • 24/6/1993 & 30/6/1993: Revised plans are lodged including a significant alteration in roof space and style,

  • • 27/7/1993: Notification by Dublin City Council of its decision to grant permission subject to conditions,

  • • 15/9/1993: Actual grant of permission issued from the Council,

  • • 9/1993: Work started on the site,

  • • 12/93: During the course of construction certain alterations and variations were made to the building. It has always been agreed that the same are unauthorised and are not covered by the pennission as granted,

  • • 13/5/1994: Planning retention application made by Mr. Beades. This covered an alteration in roof design, the construction of an additional apartment on the fourth floor facilitated by the raising of the roof, and other alterations to the elevation which include changes in the window style and in the security gate.

  • • 11/7/1994: Notification by the planning authority of its decision to refuse permission indicating four reasons therefor,

  • • 4/8/1994: Mr. Beades lodged an appeal to An Bord Pleanála,

  • • 11 /8/1994: Letter from An Bord Pleanála to the planning authority requesting certain documents relevant to the appeal,

  • • 7/9/1994: The planning authority responded by way of submitting a report,...

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