Michelle Morrison v Dun Laoghaire-Rathdown County Council :
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 07 October 2010 |
| Neutral Citation | [2010] IEHC 385 |
| Court | High Court |
| Date | 07 October 2010 |
[2010] IEHC 385
THE HIGH COURT
Between
PLANNING & DEVELOPMENT ACT 2000 S50A(3)
PLANNING & DEVELOPMENT ACT 2000 S50
KITTERICK, IN RE 1971 105 ILTR 105
SIMONS PLANNING & DEVELOPMENT LAW THOMSON ROUNDHALL 595
CUMANN THOMAS DAIBHIS v SOUTH DUBLIN CO COUNCIL UNREP O'NEILL 30.3.2007 2007/ 13/2621 2007 IEHC 118
PLANNING & DEVELOPMENT ACT 2000 S50A(3)(B)(I)
CASEY v BORD PLEANALA UNREP MURPHY 14.10.2003 2003/9/1747
MOUNTBROOK HOMES LTD v OLDCOURT DEV LTD UNREP PEART 22.4.2005 2005/40 8224 2005 IEHC 171
O'CONNELL v DUNGARVAN ENERGY LTD UNREP FINNEGAN 27.2.2000 2001/18/5119
EIRCELL LTD v BERNSTOFF UNREP BARR 18.2.2000 2000/6/2314
WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374
LEVER FINANCE v WESTMINISTER LBC 1971 1 QB 222
PLANNING & DEVELOPMENT ACT 2000 S160
TOFT, STATE v GALWAY CORP 1981 ILRM 439
RSC O.84 r21
PLANNING & DEVELOPMENT ACT 2000 S160
XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1987 ILRM 659 1986 IR 750
TENNYSON v CORPORATION OF DUN LAOGHAIRE 1991 2 IR 527
CRADDOCK LTD v KILDARE CO COUNCIL UNREP DUNNE 31.7.2007 2007/10/2070 2007 IEHC 336
HARDING v CORK CO COUNCIL 2008 2 ILRM 251
MCNAMARA v BORD PLEANALA (NO 1) 1995 2 ILRM 125
PLANNING AND ENVIRONMENTAL LAW
Unauthorised development
Compliance submission -Removal of trees - Condition requiring notice parties to replace trees - Interpretation of condition - Visual amenity and privacy of dwelling - Discretion of court - Application to amend statement of grounds - Time limit - Whether substantial grounds - Whether substantial interest - Whether decision invalid or ultra vires - Whether compliance submission complied with planning permission - Whether belated compliance possible - Whether unauthorised development - Whether alternative remedy - Whether error de minimus - Whether applicant suffered loss or prejudice - Re Thomas Kitterick (1971) 105 ILTR 105; Cumann Thomas Daibhis v South Dublin County Council [2007] IEHC 118, (Unrep, Peart J, 14/6/2007); Casey v An Bord Pleanála (Unrep, Murphy J, 14/10/2003); Mountbrook Homes Ltd v Oldcourt Development Ltd [2005] IEHC 171, (Unrep, Peart J, 22/4/2005); O'Connell v Dungarven Energy Ltd (Unrep,Finnegan J, 27/2/2001); Eircell Ltd v Bernstoff (Unrep, Barr J, 18/2/2000); White v McInerney Construction Ltd [1995] 1 ILRM 374; Lever Finance v Westminster LBC [1971] 1 QB 222; The State (Toft) v Galway Corporation [1981] ILRM 439; In re XJS Investments Ltd [1986] IR 750; Tennyson v Dun Laoghaire Corporation [1991] 2 IR 527; Conroy v John Craddock Ltd [2007] IEHC 336 (Unrep, Dunne J, 31/7/2007); Harding v Cork County Council [2008] IESC 27, [2008] 2 ILRM 251 and McNamara v An Bord Pleanála (No 1) [1995] 2 ILRM 125 considered - Planning and Development Act 2000 (No 30), s 50 - Planning and Development (Strategic Infrastructure) Act 2006 (No 27) - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Leave granted (2009/1103JR - Hanna J - 7/10/2010) [2010] IEHC 385
Morrisson v Dun Laoghaire Rathdown County Council
Facts The applicant and the notice parties were owners and occupiers of adjoining residential properties. The applicant brought judicial review proceedings seeking to quash the decision of the respondent approving a compliance submission made by the notice parties in respect of a condition attached to a planning permission. The dispute centred around the removal of trees and other works by the notice parties on their property. The applicant contended that this was in breach of the planning permission granted to the notice parties. Of particular issue was whether or not the trees in question were felled before or after the filing of the compliance submission by the notice parties. In addition the applicant contended the compliance drawing was not in accordance with the relevant planning condition. On behalf of the applicant it was submitted once a person had demonstrated that their property was sufficiently proximate to the proposed development to be affected by the development, they were entitled to insist that any decision to grant permission or to issue a compliance decision was reached in accordance with law. The applicant also contended that the compliance drawing submitted by the notice parties indicated the location of an unauthorised entrance which had been the subject of an enforcement notice. The planning authority should not have endorsed the unauthorised development by agreeing a compliance submission referable to such unauthorised development. The respondent submitted that the applicant did not have a substantial interest in the matter and had failed to file any affidavit demonstrating a substantial interest within the statutory eight week time period. Even if there was non-compliance with pre-commencement conditions, it did not follow that the entire development was an unlawful development. Not every deviation from permitted development constituted an unauthorised development. The notice parties submitted that none of the grounds advanced by the applicant constituted substantial grounds for contending that the respondent's decision was invalid and ought to be quashed.
Held by Hanna J in granting the application. The application had been brought on the last day of the relevant statutory time limits but it was nonetheless brought within time. The applicant had substantial interest in the decision the subject matter of the proceedings. The disputed decision related to development work being carried out in a site adjacent to the applicant's property. The removal of trees by the notice parties clearly affected or had the potential to affect the applicant's enjoyment of and amenity in her own home. It was quite clear at the leave stage that the Court had to go no further than been satisfied that the grounds adduced by the applicant were "substantial". If it were the case that non-compliance with pre-commencement conditions could never be regarded as a good or arguable or weighty point, then any challenge made in reliance on such a complaint could not be substantial. The approach the Court might ultimately take to the issue of the failure to comply with condition number 5, including whether there was any such failure was a matter for substantive hearing at a later stage.
Reporter: R.F.
Judgment of Mr. Justice Hanna delivered the 7th day of October, 2010
This is an application for leave to seek judicial review and, if successful at the leave stage, the orders the applicant seeks are, inter alia, an order of certiorari quashing the decision of the respondent dated 3 rd September, 2009 ("the decision") purporting to approve a compliance submission made by or on behalf of the Notice Parties arising out of a condition (condition No. 5) attached to decision of An Bord Pleanála dated 24 th August, 2007 and a declaration that the said decision is ultra vires, void and of no legal effect.
The applicant and the notice parties are owners and occupiers of adjoining residential properties in Dalkey in Co. Dublin. The substance of the dispute the subject matter of the proceedings concerns the removal of trees and other works by the notice parties on their property contrary, the applicant alleges, to the planning permission granted to them. The planning process engaged in by the notice parties (including, it must be observed, involvement by and on behalf of the applicant) was somewhat protracted and involved a number of planning decisions. I do not propose to recite here the entire history of this process.
On or about 19 th June, 2009, a compliance submission for the purposes of condition No. 5 of what was the third permission was received by the respondent planning authority from the notice parties. The said compliance submission enclosed a drawing which was referred to in the proceedings as the Ledbetter compliance drawing, being a compliance drawing prepared for the purpose of condition No. 5 of the third permission by G.T. Ledbetter Design. The said compliance drawing showed trees Nos. 1938, 1940, 1932, 1943,1944, 1945,1947 and 1949 ("the 1940 series") as being retained as per the Murray landscape plan on foot of which the third permission was granted.
The compliance submission made under or pursuant to condition No. 5 is at the heart of this dispute. Condition No. 5 specifically required the developer/notice parties to carry out replacement tree planting and provided as follows:
2 "5. Replacement tree planting shall take place in the first planting season after construction of the proposed dwellinghouse. Details in this regard shall be submitted to and agreed in writing with the planning authority prior to commencement of development.
Reason: In the interest of visual amenity."
Condition 1 is also relevant and it refers back to two earlier permissions and provides as follows:
2 "1. The development shall be carried out in accordance with the terms and condition attached to the planning permissions granted under An Bord Pleanála appeal Ref. Nos. PL06D.209177 and PL06D.217012, except as amended to conform with the plans and particulars lodged in connection with this application and with the following conditions.
Reason: In the interest of clarity."
Condition No. 1 of the third permission/the permission the subject of these proceedings required a landscape plan which was submitted with the first planning application, described throughout this judgment as "the Murray landscape plan", save to the extent that this plan may have been necessarily modified by the two subsequent permissions.
The applicant's case is essentially that the compliance...
To continue reading
Request your trial