Kenny -v- Dublin City Council, [2009] IESC 19 (2009)

Docket Number:06/05
Party Name:Kenny, Dublin City Council
Judge:Fennelly J.
 
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THE SUPREME COURT

Appeal No. 006/2005

(Record No. 383 JR/2002)Fennelly J.

Macken J.

Peart J.JUDICIAL REVIEWBetween:JAMES KENNYApplicantAnd

DUBLIN CITY COUNCILRespondentAnd

THE PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGENotice Party

And by order of the Court made on 20th January 2003

MICHAEL McNAMARA & COMPANYNotice Party

JUDGMENT of Mr. Justice Fennelly delivered the 5th day of March, 2009.

1. By a decision of 4th January 2000 the respondent (Dublin City Council, hereinafter "the Council"), certified compliance by the notice party (hereinafter "Trinity") with the terms of planning permission for the building of Trinity Hall. This is an appeal against a High Court decision (Murphy J) refusing to quash that decision at the instance of the appellant (hereinafter "Mr Kenny"). 2. This is not the first and may not be the last case in which Mr Kenny contests the building by Trinity of its new Trinity Hall buildings. My judgment of 10th April 2008 in Kenny v The Provost, Fellows and Scholars of the University of Dublin, Trinity College [2008] 2 I.R. 40, mentioned the "saga of litigation in which Mr Kenny, through a multiplicity of proceedings, contests the validity of a planning permission granted to Trinity in 1999 to redevelop Trinity Hall, the University's hall of residence in Dartry."

Planning history

3. On 12th April 1999, Trinity applied for planning permission for a development consisting of the construction of new student halls of residence at Trinity Hall. 4. The development was large and complex. It covers an area of approximately 25,000 square metres and comprises, inter alia, three new student-residence buildings ranging in height from three to seven storeys to accommodate 832 bedrooms arranged in 180 apartments, a 400 seater dining facility, a launderette, a students' shop, the refurbishment of Trinity Hall, a listed building, the removal of a gate lodge, a new atrium between Trinity Hall and the sports hall and further and other associated buildings, works and facilities.

5. One of the buildings is opposite Mr Kenny's residence. He and the Dartry and District Preservation Association, of which he is a member, opposed the development. In the course of the planning process the Council made a request to Trinity to submit revised plans under Article 35 of the Local Government (Planning and Development) Regulations, 1994. Trinity complied on 7th October 1999.

6. On 11th November 1999, the Council (under its former description, Dublin Corporation) made a decision to grant planning permission subject to 14 conditions.

7. Mr Kenny and the Association appealed the decision to An Bórd Pleanála ("the Board"). Mr Kenny was represented at the oral hearing. On 4th August 2000 the Board made a decision to grant planning permission subject to 19 conditions.

8. The planning conditions relevant to the present appeal are:

Condition 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.

Reason: In the interests of clarity."

Condition 2

"The western arm of Building Number 3, that is on the full Dartry Road elevation, shall be reduced in height by the omission of the first floor. Revised drawings incorporating this modification to Building Number 3 shall be submitted to the planning authority for agreement prior to the commencement of development.

Reason: In the interest of visual amenity."Condition 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.

Reason: In the interest of orderly development."

Condition 9

"Existing trees shall be retained and areas shown as open space on the lodged plans shall be planted and landscaped in accordance with the plans submitted to the planning authority. The open areas shall be available for use by the students on completion of the proposed residential units. All landscaping works shall be carried out within 12 months of the completion of the buildings in the proposed development. Services and utilities shall not be laid within 10 metres of the bole of any of the trees to be retained. Prior to the commencement of the development the developer shall submit details and agree with the planning authority measures necessary to protect the trees to be retained. All trees to be retained shall be protected during the development by a timber post and rail fence which shall enclose the crown spread of the trees.

Reason: To protect the existing trees and in the interest of visual and residential amenity."

[emphasis added]

9. Mr Kenny has contested the validity of the planning permission. Those judicial review proceedings ended with the decision of this Court on 10th April 2008, mentioned above. Certain conditions of the planning permission required Trinity to submit certain matters to the Council for agreement. The present proceedings concern compliance with conditions of the permission.10. In August 2001, Trinity's architects, Murray O'Laoire, made a planning-compliance submission of some seventy pages to the Council. An addendum of some twenty five pages was submitted in November 2001.

11. By report dated 24th December 2001, Patrick McDonnell, Dublin City Council Planning Office, reported that the details submitted by the developer were satisfactory and complied with the requirements of of the relevant conditions.

12. The Council, by a decision of 4th January 2002, determined that the compliance submissions were satisfactory and in compliance with the relevant conditions of the planning permission. That is the decision which Mr Kenny challenges in the present appeal. I will call it the Council decision

Judicial Review

13. On 4th July 2002, Mr Kenny obtained leave ("the leave order") from the High Court (O'Caoimh J) to apply for judicial review of the Council decision. Mr Kenny claims that the Council permitted major changes to the permitted development. The decision was, therefore, made without or in excess of jurisdiction and ultra vires. I will examine these features of the Council decision in greater detail. The judicial review concerns essentially four aspects of the Council decision, namely:

1. The Council permitted compliance with Condition No. 2 by the omission of a floor other than the first floor of the western arm of Building No 3 as was required by that condition;2. The Council approved the installation of boilers and boiler rooms in the roof spaces of buildings nos 2 and 3, which was not allowed by the permission and so as to alter the roof design and profile and to depart from revised plans submitted in October 1999;3. The Council permitted an increase in the number of bed spaces permitted in building no. 3;4. The Council permitted the laying of services and utilities within ten metres of the bole of trees and the erection of timber post-and-rail fences which fail to enclose the crown spread of trees which were to be retained.14. Murphy J, by his judgment of 8th September 2004, refused the application for judicial review. The learned judge based his decision primarily on Mr Kenny's delay in seeking judicial review together with the prejudice suffered by Trinity. The college openly carried out the development during the period of delay. Secondly, and alternatively, the learned judge concluded that, in any event, the agreement of the Council was reached within the scope of the conditions imposed in the planning permission.

15. Mr Kenny, in his notice of appeal, challenges the decision of the High Court both in respect of the finding of delay and the determination that the Council had, in its decision of 4th January 2002, acted within jurisdiction and intra vires the planning permission granted by An Bórd Pleanála.

16. The contested planning issues involve the interpretation of the planning permission and the limits to the discretion which may be exercised by the planning authority in approving compliance with conditions.

Legal principles

17. To begin with, some simple matters of common sense need to be mentioned concerning planning permissions. I make these preliminary remarks, because Mr Kenny asks the Court to examine, at least in certain respects, the fine details of the development. 18. There will inevitably be small departures from some or even many of the plans and drawings in every development. There can be discrepancies between and within plans, drawings, specifications and measurements; there can be ambiguities and gaps. It seems improbable that any development is ever carried into effect in exact and literal compliance with the terms of the plans and drawings lodged. If there are material departures from the terms of a permission, there are enforcement procedures.

19. However, planning laws are not intended to make life impossible for developers, for those executing works such as architects, engineers or contractors or for the planning authorities in supervising them. Nor are they there to encourage fine-tooth combing or nit-picking scrutiny of the works. I will mention later one or two examples of this type of exercise in the present case. The exchange of affidavits amounts to some 300 pages.

20. While the planning authority or An Bórd Pleanála on appeal grants the permission, it is a common feature of permissions, especially for large developments, that additional detail is necessary in order to carry the development into effect and such detail, often in the form of further plans, drawings, specifications or other explanations, will require approval by the planning authority prior to commencement of the development. There is an obvious practical necessity for a procedure whereby matters of...

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