O'Neill -v- An Bord Pleanála, [2009] IEHC 202 (2009)

Docket Number:2005 1179 JR
Party Name:O'Neill, An Bord Pleanála
Judge:Hedigan J.






Judgment of Mr. Justice Hedigan, delivered on the 1st day of May, 2009

1. The applicant is a businessman, who lives in Laragh Village in the County of Wicklow. His residence is in close proximity to the development site which forms the subject matter of these proceedings.

2. The respondent is an independent appellate body, established under the Local Government (Planning and Development) Act 1976 for the determination of certain matters arising under the Planning and Development Acts 2000 to 2006.

3. The first named notice party is a local authority with responsibility for the administrative area of County Wicklow. Its functions include the management of building developments in the county, in particular by means of the grant or refusal of planning permission.

4. The second named notice party is a limited liability company specialising in the sale of Irish gifts and memorabilia. Its proposed development in County Wicklow forms the subject matter of these proceedings.

5. The applicant seeks the following relief:-

(a) An order of certiorari quashing the decision of the respondent, dated the 12th September, 2005, to grant planning permission for a development consisting of a craft/retail store on a site at Laragh in the County of Wicklow;

(b) A declaration that the respondent determined the application other than in accordance with the statutory scheme as set out in the Planning and Development Acts, 2000-2004; and

(c) A declaration that in determining the application the respondent failed to accord the applicant fair procedures.

I. Factual and Procedural Background

6. By application dated the 18th December, 2003, the second named notice party applied to the first named notice party for planning permission in respect of a proposed three-storey craft and retail centre at Laragh East, Laragh, County Wicklow. The proposed development, which was designed to include a mixture of restaurants and retail outlets, measured 3,257 square metres in total, including 1,806 square metres of retail space.

7. On the 29th January, 2004, the applicant filed a submission with the first named notice party setting out his grounds of objection to the proposed development. His primary complaints in relation to the proposal were:

(a) that it would constitute overdevelopment of the site;

(b) that it would seriously damage the qualities, setting and character of a landmark;

(c) that it would seriously injure the visual amenities of the area;

(d) that it would endanger public safety by reason of traffic hazard;

(e) that it would materially contravene the county development plan;

(f) that it would materially contravene the national, regional and county retail strategies; and

(g) that it would contravene the national spatial strategy and the strategic planning guidelines for the greater Dublin area.

8. Despite the objections of the applicant, the first named notice party nonetheless proceeded to grant permission for the proposed development on the 7th December, 2004.

9. On the 10th January, 2005, the applicant appealed the decision of the first named notice party to the respondent. In support of this appeal, he filed a detailed submission from a planning consultant which alleged inter alia: breaches of the retail planning guidelines and regional and local retail strategies; breaches of the Wicklow County Development Plan ('the Development Plan') policies on heritage, landscape and visual amenity; and breaches of the Development Plan's zoning requirements.

10. For the purposes of assessment of the applicant's appeal, the respondent appointed as inspector, Ms. Oznur Yucel-Finn ('the inspector'). She submitted a detailed report on the 4th May, 2005 which included a review of: the site for the proposed development and its location; the nature and scale of the proposed development; the Council's decision; the applicant's grounds of appeal and the second named respondent's replies to those grounds; other observations received; the provisions of the Development Plan; and applicable policy guidelines.

11. The inspector concluded that the proposed development should not be permitted and submitted three reasons in the following terms:

"(a) Having regard to its height, footprint and generally excessive scale, it is considered that the proposed development, located on exposed and rising ground in an area of high visual amenity would seriously injure the visual amenities of the area and be contrary to proper planning and development of the area.

(b) It is considered that the proposed development by reason of its large floor space, mall style design, terraces and large car park would constitute a form of development out of character with the development pattern of the immediate area, characterised by Protected Structures. The proposed development would therefore be contrary to the proper planning and sustainable development...

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