Kenny v an Bord Pleanála (No 1)

• Jurisdiction: Ireland
• Judge: McKechnie J.
• Judgment Date: 15 December 2000
• Neutral Citation: [2000] IEHC 146
• Court: High Court
• Docket Number: [2000 No.532 JR]
• Date: 15 December 2000

KENNY v. BORD PLEANALA & ORS

JUDICIAL REVIEW

BETWEEN

JAMES KENNY

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

DARTRY AND DISTRICT PRESERVATION ASSOCIATION, MATT CROTTY, THE PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESS OF DUBLIN

NOTICE PARTIES

[2000] IEHC 146

No. 532 JR 2000

THE HIGH COURT

Synopsis:

Planning

Planning; challenge to grant of planning permission; applicant seeks leave to apply by way of an application for judicial review for certain reliefs; whether there are substantial grounds for contending that planning decision is invalid or ought to be quashed; whether the question of reasonableness of defendant's decision is material; whether condition imposed by defendant allowing for agreement in writing between developer and planning authority on modifications to approved development plan is too wide and, as a result, ultra vires; whether development for which planning permission has been obtained is unknown or cannot in all material respects be identified; whether, in deciding whether or not to regulate an aspect of a proposed development, defendant is entitled to afford a developer, subject to consent of planning authority, a degree of flexibility, particularly if intended scheme involves complex enterprise; whether, once procedural statutory requirements have been satisfied, the Court should concern itself with qualitative nature of Environmental Impact Statement or debate on it before Inspector; whether, when under a statutory scheme a process has been commenced, those involved or affected thereby have a right to see process through to a conclusion under the law as it was at date of its commencement; whether statutory scheme introduced subsequent to issue of Notice of Intention to grant Planning Permission, but prior to appeal hearing, which would give special protection to structure it is proposed to demolish as part of the development, should be interpreted so as to have retrospective force; s.82(3A), Local Government (Planning and Development) Act, 1963, (as inserted by s.19(3), Local Government (Planning and Development) Act, 1992); Art. 15.5 of the Constitution.

Held: Leave refused.

Kenny v. Bórd Pleanála - High Court: McKechnie J. - 15/12/2000 - [2001] 1 IR 565

The applicant sought judicial review of decision by An Bord Pleanála to grant planning permission of a development to Trinity College, Dublin at a grounds in Darty. McKechnie J held that the applicant had not reached the specified threshold and therefore the application would be refused.

Citations:

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

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 35

EEC DIR 85/337

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1999 S8(10)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

SCOTT V BORD PLEANALA 1995 1 ILRM 424

BYRNE V WICKLOW CO COUNCIL UNREP KEANE 3.11.1994

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

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

ROADS ACT 1993 S55(A)

ROADS (AMDT) ACT 1998 S6

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 IR 128

G V DPP 1994 1 IR 374

MATTER OF THE ARTICLE 26 REFERENCE OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE

RSC O.84 r20

R V INLAND REVENUE COMMISSIONERS EX PARTE NATIONAL FEDERATION OF SELF EMPLOYED AND SMALL BUSINESS LTD 1982 AC 617

RE XJS INVESTMENTS LTD 1987 ILRM 659

BOYNE GROVE FRUIT LTD V J MURPHY DEVELOPMENTS LTD UNREP EX TEMP LAFFOY (NOTED IN O'SULLIVAN & SHEPHARD IRISH PLANNING LAW & PRACTICE)

O'CONNOR v DUBLIN CORPORATION & BORG DEVELOPMENTS 2001 1 ILRM 58 1999/20/6299

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(4)(g)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

WICKLOW TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINESS 5.2.1998

GREGORY V DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP GEOGHEGAN 16.7.1996 1998/20/7705

GREGORY V DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP SUPREME 28.7.1997 1998/20/7685

HOULIHAN V BORD PLEANALA UNREP MURPHY 4.10.1993 1993/12/3737

BOLAND V BORD PLEANALA 1996 3 IR 435

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1999 S42(3)

MCKEOWN ESTATE V DUBLIN CO COUNCIL 1995 2 ILRM 283

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 199O PART III

WOOD V WICKLOW CO COUNCIL 1995 1 ILRM 51

CRAISE ON STATUTE LAW 7ED 387

HAMILTON V HAMILTON 1982 IR 466

GARDNER V LUCAS 1878 3 AC 582

REID V REID 1886 31 CH D 402

ATHLUMNEY'S CASE 1898 QB 547

DUBLIN CO COUNCIL V GREALY 1990 1 IR 77

DOYLE V AN TAOISEACH 1986 ILRM 693

CONSTITUTION ART 15.5

1 JUDGMENT of McKechnie J. delivered the 15th day of December, 2000

2 1. This is an application made pursuant to Section 82(3A) of the Local Government (Planning and Development) Act 1963, seeking leave to apply by way of an application for Judicial Review, for certain reliefs, which, if successful, would result in a specified decision of An Bord Pleanala to grant a planning permission being declared invalid and ultra vires. That permission, granted to the third named Notice Party (Trinity College) authorised a development, of approximately 25,000 square meters in area, comprising inter alia three new buildings ranging in height from three to seven storeys to accommodate 832 bedrooms arranged in 180 apartments, a 400 seater dining facility, laundrette, students shop, the refurbishment of Trinity hall which is a List 2 buildings, the removal of a single storey gate lodge to facilitate a relocated entrance, a new atrium between Trinity hall and the sports hall and further and other associated buildings, works and facilities. As the Applicant, who lives nearby and as the first and second Notice Parties all have a vested interest in the immediate location of this proposed development and as they allege adverse consequences to their persons, property and environment, they bring or support the bringing of, these said proceedings.

3 2. The following dates and events are relevant to a consideration of the matters at issue in this application:-

31/3/99:	required notices appear in the public newspapers,
31/3/99:	seven technical reports including service engineers reports are finalised,
/3/99:	the Environmental Impact Statement (EIS) is completed,
12/4/99:	the planning application is submitted together with the appropriate documentation,,
9/7/99:	additional information, unsolicited, is furnished to the planning authority,
14/9/99:	an Article 35 request for additional information is issued,

7/10/99:	this request is responded to inter alia by submitting revised plans, a revised EIS, technical reports including the service engineers reports, elevation drawings, other particulars and documents all in the context of revised notices having been published in the relevant newspapers and a revised site notice placed on the site,
11/11/99:	notification of decision by the planning authority to grant the permission sought, subject to fourteen conditions,
/11/99:	Appeals all within time to An Bord Pleanala by the Applicant and others opposed to the planning permission and also by Trinity College in respect of certain matters not further relevant to this case,
24,25,26/5/00:	An Oral hearing is conducted by a senior planning inspector at which all of the relevant parties are present or represented,
26/6/00:	the Planning Inspector's report is submitted, and
4/8/00::	An Bord Pleanala issues a decision to grant permission for the aforesaid development subject to a total of nineteen conditions,

4 3. The three conditions most relevant to this Judgment are those numbered 1,8 and 16. Together with the reasons given for their imposition, these conditions, as appearing in the Second Schedule to the said Grant, read as follows:-

5 No. 1. "the proposed development shall be carried out in accordance with the revised plans submitted to the planning authority and received on the 7th day of October 1999, in response to a request for revised plans under Article 35 of the Local Government (Planning and Development) Regulations 1994, except as may otherwise be required in order to comply with the following conditions.

6 Reason: In the interest of clarity.

7 No.8. Revised drawings of the proposed development, with floor plans and elevations corresponding in detail, shall be submitted to and agreed in writing by the planning authority prior to the commencement of development.

8 Reason: In the interest of orderly development.

9 No. 16. Noise levels emanating from plant serving the proposed buildings shall not exceed a maximum level of 45 d B (A) leq when measured over any 15 minute period at any location at the site boundaries.

10 Reason: To protect the amenities of residential properties in the vicinity.

11 4. The challenge in these proceedings to the validity of the decision so given has been made, essentially on four grounds, which in brief terms can adequately be described as follows:-

(A) Ground No. 1 - Condition No.8

12 This alleges that condition No. 8 is and amounts to an unlawful delegation by the Bord, of its decision making power, to a planning authority and is thus ultra vires. It is claimed that as a result of such a condition the developer and the planning authority is at large, as to the appearance, nature and scale of the ultimate development, all of which matters can be agreed in private without any input from, or access by, members of the public.

13 Graphically, it is stated that a planning permission has been granted for what is, in effect, an unknown development.

(B) Ground No.2 - The Boiler House:-

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