Martin Mooney v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Bernard J. Barton |
| Judgment Date | 26 March 2015 |
| Neutral Citation | [2015] IEHC 193 |
| Court | High Court |
| Date | 26 March 2015 |
[2015] IEHC 193
THE HIGH COURT
BETWEEN
AND
Order of Certiorari – Planning Permission – Demolition – Bias – Evidence – Practice and Procedures
Facts: In this case, the applicant sought an order of Certiorari to quash the decision of the respondent to grant planning permission for the demolition of existing pre-fabricated school structures and for the construction of a new permanent school building at the junction of Santry Way/Coultry Road, Ballymun, Dublin 9. It was submitted by the applicant that the inspector”s report was biased, disingenuous and defamatory.
Held by Justice Barton in light of the available evidence and submissions presented that the applicant had failed to discharge the onus of proof in relation to the grounds in respect of which he was given leave and which were advanced at the hearing.
JUDGMENT of Mr. Bernard J. Barton delivered the 26th day of March 2015.
1. By Order dated the 13 th of January 2014, the respondent was given leave to apply for judicial review in the matter of appeal reference number PL 29N242229 Development Demolition/removal of all pre-fabricated structures on the site and construction of twelve classroom primary school building at Gaelscoil Bhaile Munna, Junction of Santry Way/Coultry Road, Ballymun, Dublin 9 of the 14 th of November 2013, signed and dated the 19 th of November 2013 and as set forth in the statement of grounds signed by the applicant.
2. In short, the applicant seeks an order of Certiorari to quash the decision of the respondent to grant planning permission for the demolition of the existing prefabricated school structures and for the construction of a new permanent school building ("the school") at the junction of Santry Way/Coultry Road, Ballymun, Dublin 9.
3. The grounds upon which the applicant was given leave to apply may be summarised as follows:
(a) The report of the inspector was biased, disingenuous, and defamatory of the applicant
(b) The report deals primarily with the school aspect of the plans and very little if any attention was paid to the car park beside the applicant's home.
(c) That the inspector misquoted the applicant under the grounds of appeal and was therefore disingenuous.
(d) That the inspector's opinion that the school redevelopment should be held to effective ransom over the agreement of such a scheme was defamatory of the applicant.
(e) That the omission by the inspector of a meeting between Ballymun Regeneration Ltd (BRL) and the school dated the 19 th of January 2012 whereby BRL noted that forming a large vacant lot with parking and play courts between the new school and the existing premises at 380 Coultry Road as per option (E) presented was not appropriate for the site, constituted a bias on the part of the inspector.
(f) That as the applicant was a disabled person with limited mobility with a legal right to gain access to his home without hindrance via the provided access area outside his house, the inspectors opinion that the driveway was not entirely dependant on access from a particular point in the road given the open nature of the intervening ground and that the applicant had no issue with the rebuilding of the school on the same footprint whilst also expressing the view that the applicant held a view that the masterplan did not necessarily intend the Gaelscoil to stay at its location over the longer term constituted conflicting statements and, in the view of the applicant, indicated bias.
(g) That condition 4 of the grant of permission requiring the school to adhere to the requirements of the planning authority in respect of vehicle access arrangements, footpath interface, parking facilities and standards of development contained in the roads and traffic planning division report would, in effect, require significant changes to the plans submitted and that therefore the application should have been refused.
(h) That the applicant did not get an open and fair hearing under Article 6 of the European Convention on Human Rights in that he was not afforded a right to reply to the first party response with which he had issue and that the meeting where the decision to grant permission was made was not a fair and transparent hearing.
(i) That the applicant was denied certain rights under the Aarhus Convention.
(j) That public participation was sought after the fact that the plans were approved by the Department of Education and Skills prior to the public meetings.
(k) That no consideration was given by the respondent to the applicant's personal health and well-being in allowing an open air car park to be placed along and beyond the applicant's boundary wall.
(l) That having regard to the close proximity of the car park and the entrance/exit there should have been an environmental impact statement to assess the potential damage to the applicant's health due to emissions.
(m) That there were inaccuracies in the planning application under the planning and development acts and the planning and development regulations which rendered the application invalid namely that
(i) The application states only the height of the walls and buildings, not the building as required
(ii) The application was for a two storey building when it was in fact a two and a half storey building
(iii) That there were four previous planning applications for the address given but that these could not be found on file
(iv) That the fore mentioned in the application referred to a site beside 380, Coultry Road, Ballymun, Dublin 9, the applicants home
(v) That there were in fact five applications made by the applicant for the site beside 380, Coultry Road, the missing application being the first application where planning was approved by Dublin City Council to erect two pre-fabricated classrooms on the 3 rd of July 1995 and
(vi) Three different addresses were given for the same school.
4. The respondent delivered a statement of opposition dated the 13 th of May 2014 which may be summarised as follows:
(a) That the report of the inspector accurately adequately and fairly reported and summarised the submissions made by the applicant to the respondent and was not biased, disingenuous or defamatory as alleged
(b) That the use of the term "ransom" by the inspector was figurative only, was not defamatory and could not constitute a ground for quashing the boards decision
(c) That there was no requirement to address development option (E), as it did not form part of the application
(d) That as the location of the proposed vehicular access and its distance from the public road was evident from the plans and particulars lodged and the report of the council's roads and traffic division dealing with both the eastern and northern boundaries of the site, the applicant's contention that the comments that the road and traffic planning division report was inconsistent with the plans submitted was incorrect in fact and in law
(e) That the question of illegal parking in front of the applicant's house, its causes, and the extent to which it was a planning matter, was assessed with due care by the board's inspector
(f) That the statements of the inspector in the report were not conflicting but rather that the inspector was merely paraphrasing the applicant's appeal submissions and that accordingly her statement accurately represented the submission made
(g) That as the developer's submission to the respondent was confined to issues already raised by the applicant, the decision of the board under s.131 of the Planning and Development Act not to circulate the developer's submissions to the applicant was entirely consistent with the applicant's right to a fair hearing, moreover the reasons for the decision of the board were sent to the applicant on the 21 st of November 2013
(h) Since the development did not require or involve an environmental impact assessment that no significance was to be attached to the fact that plans were approved by the developer and the Department of Education and Skills which funds the development before being submitted for permission
(i) That the board considered all matters of planning relevant to the issues raised by the applicant in coming to its decision
(j) That there was no evidence before the board relating to the impact on health of car parking in relation to the applicant's property which the board failed to consider
(k) Any challenge to the validity of the planning application on the grounds that it was inaccurate and invalid was out of time. As a ground for judicial review, that was a matter for the planning authority which validated the planning application, and should have been raised against it within eight weeks of its decision.
(l) Without prejudice to the foregoing it was denied that the planning application failed to state the height of the building, that the application misstated the number of storeys in the proposed development, that there was any material misstatement of the number of previous applications or that the applicant was in any way misled by any statement or that the address of the developer was a misstatement. In any event the applicant was not confused by the address details given as he was aware at all times that the application related to the school next door to him and
(m) Finally, insofar as the statement of grounds set out a number of contentions relating to the planning merits of the proposed school those do not constitute grounds of judicial review.
5. It appears that the original and the existing pre-fabricated school on the site opened in 1997. The proposed...
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