Mahon v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms.. Justice Dunne
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IEHC 495
• Docket Number: [No. 92 J.R./2009]
• Court: High Court
• Date: 21 December 2010

Mahon v Bord Pleanala & Ors

[2010] IEHC 495

JUDICIAL REVIEW

IN THE MATTER OF S. 50 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

KEN MAHON

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK CITY COUNCIL, BISHOPSTOWN COMMUNITY ASSOCIATION, CLASHDUV ESTATE RESIDENTS ASSOCIATION, JIM COLLINS, EAMON O'MAHONY, M.F. BRODERICK, MARIAN O'SULLIVAN, RAY O'SULLIVAN, MAUREEN O'BRIEN, SEAMUS COLLINS, MICHAEL BOURKE, MERCY O'CALLAGHAN, MARY SHIELS, NEASAN O'SHEA, DANIEL COKELY, LAURA EAGAR, JOHN BUTTIMER, COMMUNITIES FOR SUSTAINABLE DEVELOPMENT, GEORGE DWYER, BALLINEASPAIG FIRGROVE WESTGATE RESIDENTS ASSOCIATION, BOZENA HALY, ELIZABETH WARE AND LOWER BISHOPSTOWN RESIDENTS ASSOCIATION

NOTICE PARTIES

[2010] IEHC 495

[No. 92 J.R./2009]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Refusal - Lands zoned as public open space - Surrounded by housing estate - Private lands - Variation to development plan deeming open space public open space - Jus spatiandi - Whether policy applied to privately owned land - Ultra vires - Right to private property - Absence of compensation - Collateral attack on policy - Challenge to validity of policy - Failure to obtain covenant from developer - Intention of planning authority - Effect of zoning - Whether zoning resulted in unjust attack on property rights -- Telescoped hearing - Re XJS Investments Limited [1986] IR 750; Kenny v An Bord Pleanala [2001] 1 IR 565; Readymix (Eire) v Dublin County Council (Unrep, SC, 30/7/1974); Tennyson v Corporation of Dun Laoghaire [1991] 2 IR 527; Wicklow Heritage Trust Limited v Wicklow County Council (Unrep, McGuinness J, 5/2/1998); Smeltzer v Fingal County Council [1997] 1 IR 279; Finn v Bray Urban District Council [1969] IR 169; Ferris v Dublin City Council (Unrep, SC, 7/11/1990); Dublin City Council v Liffey Beat Ltd [2005] IEHC 82, [2005] 1 IR 478; Houlihan v An Bord Pleanála (Unrep, Murphy J, 4/10/1993); Goonery v County Council of Meath (Unrep, Kelly J, 15/7/1999) and Cicol v An Bord Pleanála [2008] IEHC 146, (Unrep, Irvine J, 8/5/2008) considered - Planning and Development Act 2000 (No 30), ss 10 and 50 - Reliefs refused with further submissions to be heard (2009/92JR - Dunne J - 21/10/2010) [2010] IEHC 495

Mahon v An Bord Pleanála

Facts: Two sets of proceedings related to a green area. In the first set of proceedings an order of certiorari was sought to quash the decision of the respondent to refuse the appeal of the applicant against a refusal of planning permission. In the second set of proceedings, an order was sought inter alia to quash the decision of the respondent to zone the applicants lands as a public open space. The respondent had refused an appeal from a decision of Cork City Council to refuse permission for 44 apartments. The question arose about the designation of an area as a public open space and the Development Plan.

Held by Dunne J. that the applicant was not entitled to the reliefs sought given the view that the zoning was future looking and to some extent aspirational. The applicant was not deprived of ownership of the land. The Court could not see a basis for saying that the zoning as public open space was not permissible having regard to the Planning and Development Act 2000. The Court would hear the parties further on the question of proportionality and the Development Plan.

Reporter: E.F.

PLANNING & DEVELOPMENT ACT 2000 S50

XJS INVESTMENTS LTD, IN RE 1986 IR 750 1987 ILRM 659 1986/8/1935

KENNY v BORD PLEANALA (NO 1) 2001 1 IR 565 2000/11/4343

READYMIX (EIRE) LTD v DUBLIN CO COUNCIL & MIN FOR LOCAL GOVT UNREP SUPREME 30.7.1974 2007/53/11334

TENNYSON & ORS v DUN LAOGHAIRE CORP 1991 2 IR 527 1991/13/3390

WICKLOW HERITAGE TRUST LTD v WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

PLANNING & DEVELOPMENT ACT 2000 PART V

PLANNING & DEVELOPMENT ACT 2000 S10

PLANNING & DEVELOPMENT ACT 2000 S13

SMELTZER v FINGAL CO COUNCIL 1998 1 IR 279 1998 1 ILRM 24 1998/30/12248

PLANNING & DEVELOPMENT ACT 2000 S10(2)(A)

FINN v BRAY URBAN DISTRICT COUNCIL 1969 IR 169

FERRIS v DUBLIN CO COUNCIL UNREP SUPREME 7.11.1990 1998/19/7023

DUBLIN CITY COUNCIL v LIFFEY BEAT LTD 2005 1 IR 478 2005/17/3447 2005 IEHC 82

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

PLANNING & DEVELOPMENT ACT 2000 S10(2)

GOONERY v MEATH CO COUNCIL & ORS UNREP KELLY 15.7.1999 1999/12/2990

PLANNING & DEVELOPMENT ACT 2000 S45

CICOL LTD v BORD PLEANALA UNREP IRVINE 8.5.2008 2008/7/1231 2008 IEHC 146

CONSTITUTION ART 40.1

Ms.. Justice Dunne

1 This is a matter in respect of which two sets of proceedings were brought before the court. The other proceedings are entitled the High Court, Judicial Review, Record Number 2009/645 J.R., In the matter of s. 50 of the Planning and Development Act2000, Between Ken Mahon, Applicant and Cork City Council, Respondent.

2 Both proceedings relate to a green area in the vicinity of 1 Parkgate Villas, Bishopstown Road, Cork. The first set of proceedings seek an order ofcertiorari quashing the decision of the respondent to refuse the applicant's appeal against a refusal of planning permission for a development on his property at 1 Parkgate Villas, Bishopstown Road, Cork. A declaration was also sought that Policy NHR 11 of the Cork City Development Plan 2004, does not apply to the plaintiff's said land.

3 The relief sought in the second set of proceedings included:

4 (a) an order ofcertiorari quashing the decision of the respondent to zone the applicant's lands in the 2009 Cork City Development Plan at 1 Parkgate Villas, Bishopstown Road in the City of Cork as public open space;

5 (b) a declaration that zoning of the applicant's lands at 1 Parkgate Villas, Bishopstown Road, in the City of Cork as public open space is not an appropriate zoning for the purposes of the Planning and Development Act2000;

6 (c) a declaration that the zoning of the applicant's lands at 1 Parkgate Villas, Bishopstown Road, in the City of Cork as public open space is not an appropriate zoning for the purposes of the Planning and Development Act in the circumstances where the lands are private lands, has no designation for public purposes and are in part occupied by a house and the curtilage of a dwelling house;

7 (d) a declaration that the zoning of the applicant's lands as public open space is void for uncertainty.

8 Ancillary relief was also sought.

9 The matter came on for hearing before me on the basis that there was to be a combined hearing of the leave application and the substantive application for judicial review.

10 In order to have an understanding of the issues that arise in this particular matter it is important to set out something of the background to this particular matter. The applicant herein is the owner of land and premises known as 1 Parkgate Villas, Bishopstown Road, Cork, together with one Jason Healy. The lands and premises consist of a dwelling house and a green area of in or about 0.66 hectares in total. The applicant acquired the interest in the property together with Jason Healy by an indenture of conveyance dated the 28^th October, 2008, made between John McCarthy, Adelaide McCarthy and Jean Morel and Denis McCarthy of the one part and Ken Mahon and Jason Healy of the other part. In the affidavit grounding this application the applicant stated that the property is identified as being zoned "Residential, Community and Local Services" on the Cork City Development Plan. He said that the subject property was not taken in charge by the local authority and so is not part of a housing estate built in that area but rather remains private land originally retained in the ownership of the builder who built the housing estate at Bishopstown, Cork.

11 The decision being challenged in the first set of proceedings is the decision of An Bord Pleanála (hereinafter referred to as "the Board") to refuse the appeal of the applicant against the decision made on the 8^th July, 2008, by Cork City Council to refuse permission for "construction of 44 apartments in 2 buildings, 22 apartments to each building, varying in height from 2 to 3 story, with underground car park and ancillary areas to service same, including gardens, roof gardens, private and public open space, boundary treatments and all other associated site works with connection to all main services all at Bishopscourt Drive, on part of the lands at 1 Parkgate Villas, Bishopstown, Cork."

12 In the course of its decision, An Bord Pleanála stated that the matters considered were:

"In making its decision, the Board had regard to those matters to which, by virtue of the Planning and Development Acts and Regulations made thereunder, it was required to have regard. Such matters included any submissions and observations received by it in accordance with statutory provisions."

13 The reasons and considerations given by An Bord Pleanála for its decision were as follows:-

"The Board noted that, from the time of construction of the surrounding houses, in 1966, in accordance with the terms of the original permission (granted under Planning Authority Register Reference No. 228/65) the site of the proposed development has been continuously used and maintained as a public recreation/amenity space by the residents of this housing estate. Furthermore, the Board noted that the proposed apartment development would result in the loss of the greater part of this landscaped open area which constitutes an essential community facility for the residents of the nearby dwellings and also, which contributes positively to the visual character of the area. Accordingly the Board considered that the proposed development would seriously injure the amenities of properties in the vicinity and the visual amenities of the area and would, thereby, materially contravene policy NHR 11 of the current development plan for the...