O'Neill v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 01 May 2009
• Neutral Citation: [2009] IEHC 202
• Court: High Court
• Date: 01 May 2009

O'Neill v Bord Pleanála

BETWEEN:

JOE O'NEILL

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

WICKLOW COUNTY COUNCIL and BLARNEY WOOLEN MILLS

NOTICE PARTIES

[2009] IEHC 202

RECORD NO. 1179 JR/2005

THE HIGH COURT

Abstract:

Planning law - Judicial review - Planning permission - Adequacy of reasons - Planning and Development Act, 2000 - Whether the reasons provided by the respondent for failing to accept the recommendation of the inspector were adequate and sufficient.

Facts: The applicant was a local businessman who lived in close proximity to the development site which formed the subject matter of these proceedings. The applicant sought an order of certiorari quashing the decision of the respondent to grant planning permission to the second named notice party for a development consisting of a craft/retail store on a site at Laragh, Co. Wicklow. The aforementioned planning permission was granted following an appeal by the applicant from the first named notice part’s grant of planning permission. The inspector appointed by the respondent concluded that the proposed development should not be permitted, essentially because it would look too big. As an alternative to rejection of the proposal, the inspector suggested a number of conditions including a reduction in size of the proposed development. Revised plans were submitted for the development and the respondent granted planning permission based on the conclusion that the concerns relating to size as highlighted by the inspector had been remedied in the proposed plans. The applicant had been granted leave to challenge the respondent’s decision on the grounds of the adequacy of the reasons given for failing to accept the inspector’s recommendation to refuse planning permission.

Held by Hedigan J. in refusing the application for certiorari: That applying the general principles that have developed in relation to planning and development law, it was clear that although the reasons provided by the respondent were in some respects quite limited, they were not so insufficient as to be unlawful. The respondent did adequately address its mind to the concerns that were raised by the inspector, namely the size and visual amenity of the proposed development. There was no obligation on the respondent to provide detailed reasoning equivalent to the highly professional and detailed report of the inspector. Only the main reasons were required and they were amply provided. The reasons provided by the respondent were in compliance with s. 34(10) of the 2000 Act.

Reporter: L.O’S.

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 73

PLANNING & DEVELOPMENT ACT 2000 S132

PLANNING & DEVELOPMENT ACT 2000 S34(10)

GREALISH v BORD PLEANALA 2007 2 IR 536 2006/27/5728 2006 IEHC 310

MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

PLANNING & DEVELOPMENT ACT 2000 S34(10)(A)

PLANNING & DEVELOPMENT ACT 2000 S34(10)(B)

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNICATIONS UNREP KELLY 9.9.2008 2008 IEHC 289

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL v PORTER (NO 2) 2004 1 WLR 1953 2004 4 AER 775

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750 1991/5/1081

DUNNE & MACKENZIE v BORD PLEANALA & ORS UNREP MCGOVERN 14.12.2006 2006/16/3370 2006 IEHC 400

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

FAIRYHOUSE CLUB LTD v BORD PLEANALA UNREP FINNEGAN 18.7.2001 2001/9/2432

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

2 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.

3 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.

4 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.

5 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.

6 5. The applicant seeks the following relief:-

7 (a) An order of certiorari quashing the decision of the respondent, dated the 12 ^th of 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;

8 (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

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

I. Factual and Procedural Background

10 6. By application dated the 18 ^th of 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.

11 7. On the 29 ^th of 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:

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

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

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

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

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

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

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

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

20 9. On the 10 ^th of 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.

21 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 4 ^th of 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.

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

23 a "(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.

24 (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 of the area.

25 (c) Having regard to its scale, layout and in particular its floorspace, it is considered that the proposed development would be an unacceptable form of development at this unique tourism resource and would contravene the provisions of the current County Development Plan."

26 12. The main concern of the inspector, therefore, was that the proposed development was, and would look, too big. This meant that it would be: out of character with the area; damaging to visual amenities, particularly certain protected structures; and contrary to the Development Plan. In the alternative to an outright rejection of the proposal, the inspector suggested a number of conditions, among them an emphatic reduction of the floor space to no more than 600 square metres and a requirement of retention of woodland along the western side of the development to a minimum width of 18 metres.

27 13. By letter dated the 19 ^th of May 2005, the respondent notified the second named notice party of a direction under Article 73 of the Planning and Development Regulations 2001 ('the 2001 Regulations'), inviting it to submit a revised proposal involving a reduction of 300 square metres in the retail space of the development. The respondent expressed the view that while the original proposal might involve an excessive floor area, it...