Nestor v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IEHC 547
• Docket Number: [2014 703 J.R.]
• Court: High Court
• Date: 30 July 2018

[2018] IEHC 547

THE HIGH COURT

JUDICIAL REVIEW

Noonan J.

[2014 703 J.R.]

BETWEEN

JERRARD NESTOR

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

CLARENCE QUINN

AND

JOHN WALSHE

NOTICE PARTIES

Planning and development – Planning permission – Judicial review – Applicant seeking judicial review – Whether the applicant discharged the burden of proof

Facts: The applicant, Mr Nestor, was the owner of property situated at 134 College Road, Galway City. In 2013, he applied to Galway City Council for planning permission to redevelop the property and to retain existing development. The application was approved by Galway City Council and against that approval the notice parties, Mr Quinn and Mr Walshe, appealed to the respondent, An Bord Pleanála. In its decision of the 3rd March, 2014, the respondent refused permission for the development. The applicant sought leave to apply for judicial review to the High Court (McDermott J) on 24th November, 2014. On that date the matter was adjourned and ex parte application for leave came on for hearing before Humphreys J on the 3rd December, 2014, when it was refused. The applicant appealed to the Court of Appeal against that refusal and by its order made on 11th April, 2016, the Court of Appeal substituted its order extending the time to apply for judicial review and granted leave to the applicant to do so. The applicant, in his statement of grounds dated 24th November, 2014, raised the following issues: 1) the respondent’s inspector in her report on the application referred to the vehicular access to the rear car park as having a width of 1.3 metres when in fact it was at its narrowest 2.5 metres wide; 2) the inspector referred to the development not meeting a minimum floor to ceiling height of 2.7 metres specified in the building guidelines which related to new buildings and not existing buildings and the inspector treated this requirement as being mandatory rather than a recommendation; 3) the respondent should have issued a split decision granting the retention element; 4) the respondent failed to have regard to Galway City Council’s road section report which had no objection to the proposal.

Held by the High Court (Noonan J) that the applicant had not discharged the burden of proving in the context of the erroneous measurement that the respondent took account of an erroneous fact or irrelevant consideration in reaching its determination; similarly, there was no evidence that the issue of floor to ceiling height played any part in the decision of the respondent. Noonan J held that no legal authority had been advanced by the applicant for the proposition that there was an obligation upon the respondent to issue a split decision with regard to the retention aspect of the application, nor did he believe that there was such authority or obligation on the respondent. Noonan J held that there was no evidence to support the proposition that the respondent failed to have regard to a relevant consideration being the local authority’s road section report; the applicant fell short of meeting the required standard.

Noonan J held that he would dismiss the application.

Application dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 30th day of July, 2018

1 The applicant is the owner of property situated at 134 College Road, Galway City. The property consists of a three storey dwelling house together with three apartments to the rear. In 2013, the applicant applied to Galway City Council for planning permission to redevelop the property and to retain existing development. In a very brief summary, he proposed to convert the dwelling house into three new apartments and carry out alterations to the existing apartments with associated ancillary works. The application was approved by Galway City Council and against that approval the notice parties herein appealed to the respondent.

2 In its decision of the 3rd March, 2014, the respondent refused permission for the development for the following reasons and considerations stated in its decision:

‘1. Having regard to the nature of development in the area, it is considered that the proposed front (north) elevation would be discordant in relation to nearby and neighbouring structures by reason of excessive height and inappropriate scale, particularly of the staircase feature. Furthermore, it considered that the proposal to locate balconies on the side (eastern) elevation, together with the window features already located in this elevation, overlook the neighbouring property and compromise future development of that property. It is considered that the proposed development would, therefore, seriously injure the residential amenities of properties in the vicinity and would be contrary to the proper planning and sustainable development of the area.

2. Having regard to the provision of private open space balconies at the side boundary overlooking a neighbouring property together with the narrow access arrangement serving six apartments, it is considered that the proposed development would...