O'Mahony v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard
• Judgment Date: 27 November 2015
• Neutral Citation: [2015] IEHC 757
• Docket Number: [2015 No. 636 J.R.]
• Court: High Court
• Date: 27 November 2015

O'MAHONY DEVELOPMENTS LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

[2015] IEHC 757

Humphreys J.

[2015 No. 636 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Local Government – Planning & Development – The Planning and Development Act, 2000 – Denial of planning permission – Judicial review – Whether planning decisions be barred by res judicata

Facts: Following the grant of the planning permission to the applicant by the concerned County Council for housing development and then the reversal of the County's decision by the respondent on appeal by the third-party, the applicant now sought leave ex parte to apply for an order of certiorari for quashing the decision of the respondent.

Mr. Justice Richard Humphreys dismissed the application for leave to seek judicial review. The Court held that the decision of the respondent was rational and legitimate. The Court held that environment protection, including proper planning and development, reflected a core element of a civilised community. The Court opined that in general, the respondent was bound to give reasons when it choose not to follow an earlier decision on the same issue; however, where it was clear from the decision as to what considerations were brought warranting a change of view, there was no obligation to give reasons. The Court held that it was not appropriate that the planning decision, which was made for the common good and which affects not only the present but the future generation, be based on res judicata.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of November, 2015

1 One of the underlying consequences of our common citizenship in the democratic society postulated by the Constitution is a shared duty to promote a high level of environmental protection, both in the natural and built environment. In the planning context, the commitment to proper planning and sustainable development is not simply a statutory threshold to be overcome in the context of individual planning decisions, but a reflection of fundamental objectives of any democratic community, not simply for the benefit of the present generation but because the environment in all its dimensions is held in trust for those yet to come. These considerations now find expression in a number of legal instruments, not least Article 37 of the Charter on Fundamental Rights of the European Union which emphasises that a high level of environmental protection must be ensured in accordance with the principle of sustainable development. This provision is binding in contexts where the State is implementing EU law, but, even outside that sphere, can be considered as reflective of a basic democratic commitment to proper stewardship of the natural and built environment.

2 Given those wider environmental considerations, there can be no general inherent legal right to carry out any particular development. In principle it is the entitlement and duty of the State and its appropriate organs to provide for strong and effective planning control measures in order to further the principles of environmental protection, proper planning and sustainable development.

The facts

3 The applicant company is the owner of a large parcel of land of 6.9 hectares at Glounthaune, a village in the Blarney electoral area in Co. Cork. While located within the formal boundary of Glounthaune, the lands were, in the view of the board, at a remove from the village itself. The lands in question are zoned for residential development.

4 In 2008, the applicant sought and obtained planning permission for a significant housing development on this site consisting of 248 units.

5 In 2009, the Minister for the Environment, Heritage and Local Government adopted Guidelines on Sustainable Residential Development in Urban Areas. This included provision, at para. 2.3, in terms that ‘zoning shall extend outwards from the centre of an urban area, with undeveloped lands closest to the core and public transport routes being given preference, encouraging infill opportunities …’.

6 In 2011, Cork County Council adopted the Blarney Local Area Plan (LAP) which set out, among other provisions, certain objectives for the Glounthaune area. Included in these was Objective DB-01(b), which was to the effect that no one proposal for residential development should be greater than 40 units.

7 On 12th December, 2014, the applicant applied for planning permission for a development consisting of 40 units which related only to a smaller subsection, an area of 2.37 hectares, of its wider landholding. The application was accompanied by ‘an indicative plan of future development on the landholding’ (affidavit of Tom Halley, para. 23) which showed an intention to develop 148 units (para. 26) on that wider overall landholding.

8 The County Council granted the permission sought. The second to fifth named proposed notice parties then brought third-party appeals to An Bord Pleanála.

9 Mr. Stephen Dodd, B.L., who appeared for the applicant, emphasised that the County Council's executive planner and senior planner were both of the view that the application came within the ‘ cap’ of 40 units. The board's inspector appears to have taken a similar view to the Council. However, when the matter came before the board proper, it decided to allow the appeals and refuse permission. This refusal was embodied in a decision dated 15th September, 2015.

10 The refusal is based on five main reasons which I can summarise as follows:

(i) The site is at a significant remove from and in an isolated location relative to Glounthaune village. The development would therefore be contrary to the ministerial guidelines and to proper planning.

(ii) Access to the site from a road with an 80 km/h speed limit would endanger public safety.

(iii) The development was part of a wider scheme of more than 40 units and therefore was out of scale with the character and pattern of the village, and not in accordance with the LAP and ministerial guidelines.

(iv) The application failed to meet the criteria of the Minister's Urban Design Manual, and involves ‘ a poor design concept that is unimaginative in its form, scale and layout’ and would not positively contribute to the village.

(v) Boundary treatments proposed would seriously compromise the stated intention to retain the mature trees, fail to given meaningful consideration to historic boundary features, and fail to appropriately respect the existing character of the site.

11 Following this refusal, the applicant sought leave ex parte to apply for an order of certiorari to remove the board's decision for the purpose of being quashed, and related relief by way of judicial review, and that is the application which I now consider.

12 In accordance with the Planning and Development Act, 2000 s. 50A(3)(a) (as amended by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006), the appropriate standard is that there be ‘ substantial grounds’ for the application before leave can be granted. I have regard to the decision of Laffoy J. in McNamara v. An Bord Pleanala [1995] 2 I.L.R.M. 125 at p. 130 as to the meaning of this expression.

13 Mr. Dodd challenged the decision under four broad headings and I will deal with each of these below.

Misinterpretation of Blarney Local Area Plan

14 It is submitted on behalf of the applicant that the board has clearly misinterpreted the Blarney Local Area Plan 2011, Objective DB-01(b), which proposes a cap of 40 units for any one proposed residential development. The board took the view that the present application was in reality only phase 1 of an overall scheme involving a larger number of units. The board was therefore of the view that the present application, while on its face confined to 40 units, was not in accordance with the relevant objective of the local area plan.

15 It is important in this context to recall that the proposed development, the subject matter of this application, only relates to a part of the site owned by the applicant. The planning history alone, let alone the indicative plan for the remainder of the site, make it abundantly clear that the longer-term intention is to carry out a larger development overall.

16 In the circumstances, it seems to me that not only was the conclusion that the present application was part of an overall scheme for a larger number of units reasonably open to the board, but that conclusion was overwhelming obvious. It would completely undermine the spirit and purpose of a limitation on residential development such as that contained in the relevant objective for a developer to be allowed to split up a large scheme into smaller elements, any one of which could potentially pass muster when measured, in isolation, against a cap of this kind. The suggestion that the board erred in their interpretation of the plan is unmeritorious and misconceived.

17 Reliance was placed on a comment of Barr J's in Tennyson v. Corporation of Dun Laoghaire [1991] 2 I.R. 527 at p. 534 that the High Court has ‘ exclusive jurisdiction’ to interpret the development plan. This cannot, of course, be read literally, because in many planning contexts, a planning authority or the board must, to some degree, interpret the development plan. I think the reference to the role of the court must be read as an expression of the view that the court has ‘ ultimate’ rather than ‘ exclusive’ jurisdiction to decide what a development plan means.

18 Reliance was placed on the decisions in Wicklow Heritage Trust Limited v. Wicklow County Council (Unreported McGuinness J., 5th February 1998) pp. 6-7 and Cicol Limited v. An Bord Pleanála [2008] IEHC 146, which was said to be supportive of the proposition that the court, itself, must take a view on what the development plan means. To my mind, it is...