McGoldrick v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1997
• Neutral Citation: 1995 WJSC-HC 2825
• Docket Number: [1993 No. 276 JR],No. 276 J.R./1993
• Court: High Court
• Date: 01 January 1997

MCGOLDRICK v. BORD PLEANALA

BETWEEN

SEAMUS McGOLDRICK

PLAINTIFF

AND

AN BORD PLEANALA

DEFENDANTS

1995 WJSC-HC 2825

No. 276 J.R./1993

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Procedure

Propriety - Application - Dismissal - Applicant - Choice - Appeal - Lodgment of appeal by applicant - Judicial review granted to applicant despite appeal - (1993/276 JR - Barron J. - 26/5/95) [1997] 1 IR 497

|McGoldrick v. An Bord Pleanala|

PLANNING

Reference

Determination - Board - Procedures - Fairness - Contemporaneous planning application and appeal - Reference determined after consideration of file in planning application - Determination on point not raised specifically with developer - Judicial review of determination - Whether lodgment of appeal a bar to judicial review - Local Government (Planning and Development) Act 1963, s. 5 - (1993/276 JR - Barron J. - 26/5/95) [1997] 1 IR 497

|McGoldrick v. An Bord Pleanala|

NATURAL JUSTICE

Fair procedures

Application - Determination - Basis - Departure - Planning - Development - Whether works were exempted development - Reference of question to planning board - Board's determination of reference - Determination on basis other than that contemplated by applicant - Applicant not informed of new basis - (1993/276 JR - Barron J. - 26/5/95) [1997] 1 IR 497

|McGoldrick v. An Bord Pleanala|

TRIBUNAL

Decision

Basis - Error - Procedure - Fairness - Application - Dismissal - Planning - Development - Whether works were exempted development - Reference of question to planning board - Board's determination of reference - Determination on basis other than that contemplated by applicant - Applicant not informed of new basis - (1993/276 JR - Barron J. - 26/5/95) [1997] 1 IR 497

|McGoldrick v. An Bord Pleanala|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SCHED 3 PART I CLASS 1

NOVA COLOUR GRAPHIC SUPPLIES LTD V EMPLOYMENT APPEALS TRIBUNAL (EAT) 1987 IR 426

UNFAIR DISMISSALS ACT 1977 S10(4)

P & F SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 ILRM 565

ABENGLEN PROPERTIES, STATE V CORPORATION OF DUBLIN 1984 IR 381

MYTHEN V EMPLOYMENT APPEALS TRIBUNAL (EAT) 1989 ILRM 844

1 Judgment of Mr. Justice Barron delivered on the 26th day of May, 1995.

2 The Applicant purchased the premises 65, Ashfield Road, Ranelagh on the 17th August, 1990. It is his case that at the time of its purchase it was let out in several holdings, a use which existed at the date of coming into operation of the Local Government (Planning and Development) Act, 1963.

3 The Applicant is a builder and specialises in the refurbishment of old buildings. Following his purchase, the Applicant says that he carried out development to the premises in two specific areas. At the front there was an archway which was enclosed by garage gates. This he filled in with bricks and windows to match the existing facade of the building and incorporated the storage area behind into one of the rooms of the building. At the back there was a single storey annex. This had three different sections of roofing and its North wall was in need of repair. He removed the roofs and replaced them with a single flat roof. He also replaced the plaster on the North wall of the annexe with brick.

4 He believed that these works constituted exempted development. He discussed the work to the annexe with the planning department of Dublin Corporation. He was informed that as he was not increasing the floor area he did not need planning permission.

5 When the work was nearing completion, a warning notice dated 23rd May, 1991, was served on him requiring him to remove the annexe and to restore the archway. Following discussion with an official of Dublin Corporation it was agreed that an application should be made for retention permission in relation to the new roof and the North wall of the annexe.

6 Following this agreement an application for retention was made on the 23rd May, 1991. The work which it was sought to retain was: "retain new roof elevation and North wall elevation to existing annexe at rear" of 65, Ashfield Road, Ranelagh, Dublin.

7 By letter dated the 17th July, 1991 the planning authority sought further information. The letter was as follows:-

"Dear Sir,"

8 With reference to your application for permission for the above development, I am directed by the Assistant City Manager to require you to submit .... the following further information:

9 1. The proposed development relates to the retention of new roof elevation and North wall elevation to rear annexe and indicate that the annexe is in use as "existing living". The annexe represents a self-contained living area separate from the main premises which would appear to be in multiple dwelling application. The Applicant is requested to submit the following:

10 (i) Evidence that the existing single storey annexe was used as living accommodation.

11 (ii) Details in relation to the current living arrangements in the annexe in view of the self-contained nature of the "as constructed" annexe. In this regard the Applicant should clarify whether the annexe is in use as a self-contained flat or flats. If the annexe is in use as a self-contained flat or flats, the Applicant should submit a revised public notification clearly identifying the nature of the proposed development. A further fee may be required in this regard.

12 (iii) Details in relation to the internal layout of the annexe including (on plans) any W.C.'s, bathrooms, wash-hand basins or other drainage arrangements.

13 2. The Applicant is requested to submit details of:

14 (i) The number of residental flat units within the main house, including evidence of permission under the Planning Acts for such development.

15 (ii) Private open space to serve the flat units in accordance with Development Plan standards.

16 (iii) Details of permission under the Planning Acts to infill the entry arch to the front of the dwelling thereby providing additional living accommodation.

17 3. The South wall of the rear annexe would appear to seriously encroach on the site of the adjoining southerly residental property. The Applicant is required to submit details of his legal right to carry out the "as constructed" development.

18 Please note that the effective lodgment date of your application for permission will be the date on which this notice is complied with. Any further queries should be addressed to the Area Planner."

19 This was replied to by letter dated the 2nd October, 1991 which was a follows:-

"Dear Sir,"

20 I refer to your request, for further information dated the 17th July, 1991 in respect of the above application. I wish to state that as a result of an inspection by a corporation official and after discussions with the same official in the presence of my Solicitor, it was agreed that no extra floor area had been provided and a planning application for retention should refer to the roof elevation and North wall elevation only. The entire building has been let in flats prior to the introduction of the 1963 Planning Act and the annexe referred to has always been let and its status has not been altered.

21 Reference was then made to the work on the archway and the letter continued:-

"With regard to the South wall of the rear annexe referred to in your letter, this wall has always been in existence and the only work carried out to it was replastering. In support of my application I enclose herewith letters from both owners of the adjoining properties and an affidavit from the previous owner of 65 Ashfield Road which confirms that the annexe to the property has always been in existence and that the only works carried out were re-roofing and refurbishment of same.

I hope that the information I have supplied is adequate to enable you to grant permission for the retention of the roof and wall elevation. However, should you require any further information other than that now supplied, I would greatly appreciate the opportunity to provide same."

22 No further information was sought by the planning authority. The affidavit which was furnished with this letter was as follows:-

"I, John Gannon, of 40 Ashfield Road say as follows:-

I am the previous owner of 65 Ashfield Road and I say I purchased the said property on the 18th November, 1960. I owned the said property until the date of the sale in 1990 to Seamus McGoldrick.

I say that as per my statutory declaration sworn on 16th August, 1990 that the said property was let in ten units.

The annexe at the rear has always been there but has since been gutted out internally and refurbished with a new flat roof constructed on same proportion with the apex roof that was removed.

I understand Mr. McGoldrick has also bricked up the front of the entrance to the right-hand side of the premises. This previously consisted of a double garage door with an internal solid wall.

I have no objection to these renovation works carried out by Mr. McGoldrick. The re-roofing and refacing of the front and removal of the garage doors merely improves and enhances the property."

23 The letters furnished by the occupiers on either side of the property were as follows:-

24 I, P. Atkinson of 67 Ashfield Road, Ranelagh, Dublin 6 have lived at the aforementioned address for some time. I am aware of the property known as 65 Ashfield Road, Dublin 6 and of the fact that there are renovation works being carried out on the South property. I am also aware to the extent of the annexe at the rear of the property. This annexe is of the same size and construction that was always in existence there. I understand that the building was re-roofed and refurbished recently and I have no objection whatsoever to this renovation and re-roofing."

"I, Kenny Worn of 63 Ashfield...