Moore v Minister for Arts, Heritage and the Gaeltacht

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan
Judgment Date14 February 2018
Neutral Citation[2018] IECA 27
Docket Number[C.A. Nos. 294 & 296 of 2016],Neutral Citation Number: [2018] IECA 27 Record No. 2016/294 Record No. 2016/296
Date14 February 2018

[2018] IECA 27

THE COURT OF APPEAL

Hogan J.

Peart J.

Birmingham J.

Hogan J.

Neutral Citation Number: [2018] IECA 27

Record No. 2016/294

Record No. 2016/296

BETWEEN/
COLM MOORE
APPLICANT / RESPONDENT
- AND -
THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT
FIRST NAMED RESPONDENT / APPELLANT
- AND -
DUBLIN CENTRAL LIMITED PARTNERSHIP
NOTICE PARTY
BETWEEN/
COLM MOORE
APPLICANT / RESPONDENT
- AND -
THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT
FIRST NAMED RESPONDENT /
- AND -
DUBLIN CENTRAL LIMITED PARTNERSHIP
APPELLANT

Planning and development - Injunctive relief - Demolition - Appellant seeking to appeal against High Court order - Whether the development at issue was development in relation to which the High Court ought to have exercised its discretion and withheld relief

Facts: The appellant, the Minister for Arts, Heritage and the Gaeltacht, joined by the notice party, Dublin Central Limited Partnership, appealed to the Court of Appeal against an order of the High Court (Barrett J) of 8th April 2016 granting injunctive relief pursuant to s. 160 of the Planning and Development Act 2000. The order restrained the demolition of 13, 18 and 19 Moore Street and also restrained the development of a commemorative centre at 14 -17 Moore Street, Dublin, on the basis that the development was unauthorised. The Minister's case was essentially as follows: 1) the development at issue was the subject of the grant of a planning permission and had been authorised by a valid consent pursuant to s. 14 of the National Monuments Acts 1930-2004; 2) s. 260 of the Planning and Development Act 2000 expressly disapplies the entire 2000 Act in relation to development that has been the subject of such a consent and it follows that the development did not amount to unauthorised development; 3) in any event, the development at issue was, in planning terms, an immaterial deviation from the development that was authorised by the planning permission; 4) it was said that the development at issue was, in all the circumstances, development in relation to which the Court ought to have exercised its discretion and withheld relief.

Held by Hogan J that the Minister's proposals in relation to Nos. 14-17 Moore Street amounted to significant changes in terms of both physical structures and use in respect of development as compared with the original planning permission obtained by Chartered Land, the predecessor in title to Dublin Central Limited Partnership; those proposals had not been subject to appraisal from a planning perspective, so that the views of potential third parties could be assessed. Viewed from those general planning perspectives, Hogan J found it hard to say that they did not constitute a material variation from the terms of that original planning permission; to that extent he would uphold the reasoning of Barrett J in that respect. Hogan J held that the requirement in the s. 14 consent that substantive works must be carried out within three months was at most a directory requirement, the breach of which did not invalidate the condition, at least in the absence of identifiable prejudice on which the objector might rely; in the absence of any such prejudice, s. 14 consent was accordingly not rendered invalid by reason of non-compliance with that time requirement. Hogan J held that the fact that the s. 160 proceedings may have been commenced by the applicant for reasons unconnected with the proper planning and development but simply to avail of an opportunity to block a development of which he did not personally approve was not, so far as the facts of the case were concerned, a decisive consideration. Hogan J held that the effect of s. 260 of the 2000 Act was to disapply the provisions of the planning regime in respect of works at or near a national monument, provided that the appropriate consent had been granted for the purposes of s. 14 of the National Monuments Act 1930; it follows that the Minister was accordingly entitled to construct a new commemorative centre comprising the entirety of Nos. 14-17 Moore Street without the necessity for planning permission at all, provided that the requisite consent envisaged by s. 14 of the 1930 Act was in place. In light of these conclusions Hogan J held that the proposed works did not amount to a breach of the Planning Acts. It was for that reason that he considered that Barrett J was in error in granting the relevant order restraining this proposed development in accordance with s. 160 of the 2000 Act.

Hogan J held that he would discharge the s. 160 injunction and allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of February 2018
1

In this separate judgment I propose to address the planning issues arising in the separate proceedings brought by Mr. Moore under s. 160 of the Planning and Development Act 2000 ('the 2000 Act'). This judgment pre-supposes that the reader is familiar with the judgment in the National Monuments Act proceedings which has just been delivered this morning. The present judgment is, in effect, a sequel to that earlier judgment and cannot really be understood save by reference to it.

2

In this appeal, the appellant, the Minister for Arts, Heritage and the Gaeltacht ('the Minister')(and joined by the notice party, Dublin Central Limited Partnership) appeals against an order of the High Court (Barrett J.) of 8th April 2016 granting injunctive relief pursuant to s. 160 of the Planning and Development Act, 2000, (as amended)('the 2000 Act'). Put simply, the Minister is appealing against an order that restrained the demolition of 13, 18 and 19 Moore Street and also restrained the development of a commemorative centre at 14 -17 Moore Street, Dublin, on the basis that the development was unauthorised.

3

The appeal presented is potentially wide-ranging, but at its heart the Minister's case is essentially as follows: First, the development at issue was the subject of the grant of a planning permission and has been authorised by a valid consent pursuant to s. 14 of the National Monuments Acts 1930 - 2004. Second, s. 260 of the Planning and Development Act 2000 expressly disapplies the entire 2000 Act in relation to development that has been the subject of such a consent and it follows that the development did not amount to unauthorised development. Third, in any event, the development at issue was, in planning terms, an immaterial deviation from the development that was authorised by the planning permission. Finally, it is said that the development at issue was, in all the circumstances, development in relation to which the Court ought to have exercised its discretion and withheld relief.

4

In order to appreciate the context in which these submissions are made it is necessary first to understand the background facts.

5

On the 24th April 2008 Chartered Land Limited (the predecessor in title of Dublin Central Limited Partnership) applied for planning permission for a large mixed-use development comprising retail, recreational and commercial and residential development, as well as extensive demolition and conservation works on a site of 2.17 hectares which consists of most of the block enclosed by Upper O'Connell Street, Henry Street, Moore Street, O'Rahilly Parade and Parnell Street in Dublin 1. The proposed development included, inter alia, 109 retail units, an anchor store, and 108 apartments, all to be comprised in four distinct blocks, new north-south and east-west streets, three public spaces and a sloping roof-garden. The proposed blocks thus comprised: (i) Block "A" with a building adjoining Moore Street, Henry Street and Block C; (ii) Block "B" facing onto Moore Street, O'Rahilly Parade, and the north-south street; (iii) Block "C", the retail anchor store, facing onto O'Connell Street, the plaza adjoining the east-west street, and Moore Lane, and (iv) Block "D", facing onto O'Connell Street at the plaza and east-west street. There was a proposed net floor area of 72,068m2 within the overall development, of which 77 per cent (55, 593m2) was to be allocated to retail use.

6

Planning permission was first granted by Dublin City Council. An appeal to An Bord Pleanála was conducted by way of an oral hearing. An inspector for An Bord Pleanála prepared a report of June 2009 which recommended refusal of the permission, though he noted that An Bord Pleanála might consider requesting revised plans under s.132 of the 2000 Act. At a meeting on the 10th August 2009 An Bord Pleanála decided to issue a notice to Chartered Land requiring it to submit amended drawings to address certain issues. In response to this last-mentioned notice, on the 9th November 2009, Chartered Land submitted amended plans to An Bord Pleanála. In February 2010 these amended plans were the subject of a further report by An Bord Pleanála inspector.

7

On the 24th March 2010, An Bord Pleanála granted planning permission to Chartered Land in respect of the amended plans that had been submitted to it ('the 2010 permission'). That 2010 permission provided for, inter alia, 83 retail units, 14 café/restaurant units and an anchor restaurant/café, 22 residential units, office space of circa 4, 296m2, a gallery, an assembly hall, a new public street, car parking, bicycle parking, and a commemorative centre. The permission provided that:

'All other buildings, other than the protected structures and façades, national monuments and other non-protected structures and façades noted above, are to be demolished.'

8

As I have just noted in the National Monument judgment, Nos. 14-17 Moore Street had already been made the subject of a preservation order in January 2007 by the Minister pursuant to s. 14 of the National Monuments Act 1930 ('the 1930 Act'). The preservation order did not then extend to Nos. 13, 18 and 19 Moore Street. The 2010 permission contained the following...

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