Kinsella v Dundalk Town Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 03 December 2004
• Neutral Citation: [2004] IEHC 373
• Court: High Court
• Docket Number: IEHC 373/[2004]
• Date: 03 December 2004

[2004] IEHC 373

THE HIGH COURT

IEHC 373/[2004]

No. 842 JR/2004

KINSELLA v. DUNDALK TOWN COUNCIL

COMMERCIAL

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT, 2000 (AS AMENDED) AND IN THE MATTER OF AN

APPLICATION BY WAY OF JUDICIAL REVIEW

BETWEEN

DONAL KINSELLA

APPLICANT

and

DUNDALK TOWN COUNCIL

RESPONDENT

and

COVERFIELD DEVELOPMENTS LIMITED

NOTICE PARTY

Citations:

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35(1)(c)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35(1)

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

G V DPP 1994 1 IR 374

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33

R V CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155

FLOOD V GARDA SIOCHANA COMPLAINTS BOARD 1997 3 IR 321

MCEVOY & SMITH V MEATH CO COUNCIL 2003 1 IR 208 2003 1 ILRM 431

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

WHITE V DUBLIN CITY COUNCIL 2004 1 IR 545 2004 2 ILRM 509

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 17(3)

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

PLANNING & DEVELOPMENT ACT 2000 S50(3)

ABENGLEN PROPERTIES, STATE V DUBLIN CORP 1989 IR 381

MCGOLDRICK V BORD PLEANALA 1997 1 IR 497

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Judicial Review

Remedies - Adequacy of alternative remedy - Applicant appealed the decision to grant planning permission to An Bord Pleanala - Test for determining whether judicial review or appeal to An Bord Pleanala is more appropriate - Whether court in application for leave to apply for judicial review should take into consideration adequacy of alternative remedy - Appeal to An Bord Pleanala preferable remedy (2004/842JR - Kelly J. - 3/12/2004) [2004] IEHC 373

Kinsella v Dundalk Town Council

PLANNING AND ENVIRONMENTAL LAW

Permission

Request for further information - Requirement to publish notice of receipt of significant additional data - Whether further information submitted contained significant additional data - Whether decision that significant additional data submitted is matter of planning expertise to be decided upon by planning authority - White v Dublin City Council [2004] 1 I.R. 545 considered - Leave refused

(2004/842JR - Kelly J - 3/12/2004) [2004] IEHC 373

Kinsella v Dundalk Town Council

the notice party had applied for planning permission to which the applicant had made several objections. Consequently, the respondent required the notice party to submit further information pertaining to the application. It was also informed that if the information contained significant additional data, a fresh notice would be required in accordance with article 35 of the Planning and Development Regulations 2001 and the four week period for determining the application would begin to run from date the notice was published. The respondent’s executive planner held that the information submitted by the notice party did not contain significant additional data and granted permission without considering further submissions from the applicant. The applicant appealed that decision to An Bord Pleanála and issued judicial review proceedings in respect thereof. He contended that the respondent’s decision to treat the additional information submitted by the notice party as not being significant was irrational and unreasonable and unsupported by information which was before him and that the executive planner had asked himself the wrong question.

Held by Kelly J in refusing leave that, 1, whether additional information submitted by a planning applicant was significant was primarily a matter of planning expertise to be decided upon by the planning authority.

2. That incorrect self-interrogation by an executive decision maker could be a species of unreasonableness or irrationality but that there was no evidence of it in the present case.

3. That, the court when considering the existence of an adequate alternative remedy, had to determine whether the applicant would suffer an injustice if left to such alternative remedy.

Reporter: P.C.

Judgment of

Mr. Justice Kelly

delivered the 3rd day of December, 2004

1 On 3^rd August, 2004, Dundalk Town Council (the Town Council) granted planning permission to Coverfield Developments Limited (Coverfield) for a very substantial development at Dowdallshill, Dundalk, County Louth.

2 The development will consist of a factory outlet centre containing 81 retail units with associated mall, snack bars, playground, crèche, public toilets and management suite. Parking for 1,120 cars and 20 coaches forms part of the planned development. The planning permission was subject to no fewer than 109 conditions.

3 The applicant seeks leave pursuant to s. 50 of the Planning and Development Act, 2000 (as amended) to apply for judicial review of the decision of the Town Council to grant the planning permission in question. If granted leave he wishes to seek an order ofcertiorari quashing the decision of the Town Council of 3^rd August, 2004, to grant the planning permission. Further or in the alternative he seeks an order of certiorari quashing a decision of the Town Council of 25^th June, 2004, whereby it decided that further information submitted on behalf of Coverfield on 24^th June, 2004, did not contain significant additional data and did not therefore require the publication of an additional notice pursuant to article 35 of the Planning and Development Regulations, 2001.

4 In order to make sense, in particular of this second relief, I will have to refer to what happened when Coverfield's application for planning permission was pending before the Town Council.

5 Coverfield's application for planning permission was made on 4^th March, 2004. It was accompanied by an Environmental Impact Statement (EIS) comprising seven documents. One of these was called the Overarching EIS Document to which I will have to return in due course. Curiously enough the grounding affidavit in this case did not exhibit the EIS or any relevant extract from it despite its importance to the issues in suit.

6 On 26^th March, 2004, the applicant submitted his own rival application for outlying planning permission for a factory outlet centre at Dunleer. Neither the fact nor the content of this application was disclosed in the grounding affidavit supporting the present application.

7 On 7^th April, 2004, the applicant made two separate submissions and observations to the Town Council concerning Coverfield's planning application. One was made personally and the other on his behalf by a firm of planning consultants.

8 On 27^th April, 2004, the Town Council wrote to Coverfield requesting it, pursuant to the Planning and Development Regulations, 2001 to provide information/documents as set out in seven numbered paragraphs contained in a schedule to that letter of request. Coverfield was told that its application was deferred pending full compliance with that request. It was also informed that if the Town Council considered that the further information submitted contained significant additional data, Coverfield would be required to give notice in an approved newspaper in accordance with article 35 (1) (c) of the Planning and Development Regulations, 2001. In such circumstances the four week period for determining the application would run from the date that the notice was published.

9 The schedule to the letter of 27^th April, 2004, drew Coverfield's attention to several letters of objection received in relation to the proposed development. Copied of those letters were enclosed. Within the context of the information already supplied in what was called the Environmental Impact Assessment, Coverfield was requested to submit a written statement which would address, assess and comment upon each of the issues and concerns raised within the letters of representation in question. The schedule went on to set out non-exclusive points for consideration by Coverfield.

10 Amongst other things Coverfield was asked to deal with commercial synergy with the town centre; impact upon the town centre vitality and viability – within the context of the issues raised in the letters of representation; sustainable development – in response to the issues raised by the letters of representation and embellishment of s. 2.9.1 of the EIS Overarching Document.

11 The schedule went on to draw attention to s. 2.3.5 of the EIS Overarching Document which outlined the hours of opening of the centre. It pointed out that the proposal referred to one late night opening but did not specify the day or times. Attention was also drawn to s. 2.4.15 of the Overarching Document which mentioned that signage for all units would be "Blade" type and it went on to comment on that.

12 The fourth paragraph of the schedule pointed out that the Town Council and Louth County Council had commissioned independent advice from Brady Shipman & Martin Consultants who had examined the proposal and requested that the following further information be sought:-

"Please give details of the catchment of the proposed centre and the expected number of visitors, in relation to the National Roads Network. Please justify the scale of the overall development and the number of units with particular regard to the nature of factory outlet centres and the type of tenants proposed."

13 Please indicate the measures to be taken to ensure that the goods sold in the proposed development will not be in competition with the town centre in Dundalk.

14 The applicant has not provided the range of detail and analysis to substantiate the conclusions of the assessment of retail impact provided in s. 2.9.25 to 2.9.31 of the EIS. Please provide a revised response to the impacts on the town centres of Dundalk, Drogheda and Ardee with respect to the criteria in para. 65 of the Retail Planning Guidelines".

15 Coverfield was asked...