NEVILLE v Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Justice Aindrias Ó Caoimh |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] IEHC 119 |
| Court | High Court |
| Date | 31 July 2001 |
[2001] IEHC 119
THE HIGH COURT
BETWEEN
AND
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21(A)
INTERNATIONAL CHARTER FOR THE CONSERVATION & RESTORATION OF MONUMENTS & SITES (THE VENICE CHARTER) ART 5
COUNCIL OF EUROPE CONVENTION FOR THE PROTECTION OF THE ARCHITECTURAL HERITAGE OF EUROPE 1985 (THE GRANADA CONVENTION) ART 11
INTERNATIONAL CHARTER FOR THE CONSERVATION & RESTORATION OF MONUMENTS & SITES (THE VENICE CHARTER) ART 9
INTERNATIONAL CHARTER FOR THE CONSERVATION & RESTORATION OF MONUMENTS & SITES (THE VENICE CHARTER) ART 13
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)
RSC O.120
RSC O.84 r21
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82
FRESCATI ESTATES LTD V WALKER 1977 IR 177
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)
GAVIN V CRIMINAL INJURIES COMPENSATION BOARD 1997 1 IR 132
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S7(3)(1)
KEANE V AN BORD PLEANALA 1998 2 ILRM 241
BUILDING CONTROL ACT 1990
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(11)
CABLELINK LTD V AN BORD PLEANALA 1999 1 IR 596
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(1)
HOWARD V COMMISSIONERS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101
Synopsis
PLANNING AND ENVIRONMENTAL LAW
Development
Proposed development of recital hall on site of real tennis court - Whether applicant had demonstrated "substantial grounds" - Whether decision of respondent unlawful - Whether property listed for protection - Local Government (Planning and Development) Act, 1963 section 82(3A) and (3B) - Local Government (Planning and Development) Act, 1992 (1999/314JR - O Caoimh J - 31/7/01)
Neville v An Bord Pleanála
The applicant brought the present proceedings seeking leave to apply for judicial review in respect of a grant of planning permission by the respondent to the Commissioners of Public Works. The Commissioners of Public Works intended to develop the site, which was a real tennis court, as a recital hall. The applicant claimed that the respondent did not have regard to the provisions of the Dublin City Development Plan in granting the permission and was therefore ultra vires and unlawful. Mr. Justice Ó Caoimh held that the applicant had failed to demonstrate substantial grounds. The applicant had failed to establish that a letter written when the property was granted to the State had legal force. The letter was merely an expression of will on the part of the donor. Furthermore the respondent had correctly concluded that the interior of the property was not listed. The application would be dismissed.
Justice Aindrias Ó Caoimh delivered the 31st day of July, 2001.
This is an application pursuant to Section 82(3A) and (3B) of the Local Government (Planning and Development) Act, 1963as amended by the Local Government (Planning and Development) Act, 1992for leave to apply for Judicial Review in respect of a decision of the Respondent to grant planning permission subject to conditions for the development of a recital hall on the site occupied by a Real Tennis Court at Earlsfort Terrace in Dublin. The Applicant seeks the relief of
1. Certiorari by way of an application for Judicial Review of the decision of An Bord Pleánala granting permission to Commissioners of Public Works in Ireland for a change of use and extension of a Real Tennis court be used as a recital hall at Earlsfort Terrace in the City of Dublin.
2. A declaration by way of application for Judicial Review that An Bord Pleánala acted without jurisdiction in granting the planning permission which when executed will determine or breach the trust under which the real tennis court is held by the State or will otherwise unlawfully contravene the express wishes of the donor.
3. A declaration by way of application for Judicial Review that the Commissioners for Public Works in Ireland acted unlawfully in seeking planning permission from the Planning Authority and from An Bord Pleánala which permission when acted upon will determine or breach the trust under which the real tennis court is held by the State and will contravene the express wishes of the donor.
4. A declaration that any use of the Real Tennis court at Earlsfort Terrace in the City of Dublin for a purpose which excludes the possibility of playing real tennis is a breach of trust.
5. A declaration by way of application for Judicial Review that the real tennis court at Earlsfort Terrace in the City of Dublin is unlawfully listed on List 2 of the Dublin City Development Plan 1999 and that the said structure is listed on List 1 of the said plan.
The grounds upon which the relief is sought can be summarised as follows:-
a 1.(a) Section 26(5) of the Local Government (Planning and Development) Act, 1963requires An Bord Pleánala to have regard to the provisions of the Development Plan in determining an appeal.
(b) An Bord Pleánala did not have regard to the provisions of the Development Plan in determining the appeal in issue.
(c) In 1999 Dublin City Development Plan was adopted on the 22nd March, 1999. The oral hearing at An Bord Pleánala in relation to the planning permission, the subject matter of appeal to An Bord Pleánala was held on the 20th April, 1999. The report of An Bord Pleánala's Inspector is dated June, 1999. The decision of An Bord Pleánala is dated the 8th June, 1999.
(d) In failing to have regard to the 1999 Dublin City Development Plan in determining the appeal in issue, An Bord Pleánala's decision is ultra vires and unlawful.
2. An Bord Pleánala may only determine a planning appeal for lawful reason or reasons.
(a) The reason or reasons given by An Bord Pleánala for its decision to grant permission for the proposed development as set forth in the first schedule to the decision of An Bord Pleánala are as follows:-
"It is considered that subject to compliance with the conditions set out in the second schedule, the proposed change of use and extension of this List 2 structure would be an appropriate form of development of the site and would be in accordance with the proper form of development of the site and would be in accordance with the proper planning and development of the area."
(b) As a matter of law the structure at issue was not on List 2 of the Development Plan as it had been unlawfully removed from List 1 and placed on List 2.
(c) Section 21(A) of the Local Government (Planning and Development) Act, 1963provides that where a proposed amendment of a Draft Development Plan would be a material alteration of the Draft Development Plan, the Planning Authority is advised to cause notice of the proposed amendment to be published in the Iris Oifigiúil and in a newspaper circulating in its area and to place the proposed amendment of the Draft Development for public inspection for at lease one month.
(d) Amongst the amendments made to the 1998 Draft Development Plan was a proposal that the Real Tennis court at Earlsfort Terrace be placed on List 1 of the plan which had it been accepted would have ensured its preservation as a Real Tennis court. This proposal was put on public display for one month as required by law.
(e) Dublin Corporation sought to further amend the said Draft Development Plan by rejecting the proposal to list the building on List 1 and instead to place it on List 2. This particular proposed amendment to the Draft Development Plan was neither advertised nor placed on public display.
(f) The proposal to remove the structure at issue from List 1, where it would have been preserved as a real tennis court, to List 2, where it would enjoy mere protection, was a material alteration of the Draft Development Plan. The provisions of Section 21(A) of the 1963 Act was referred to above were not complied with and consequently the downgrading of the proposed listed status of this structure was unlawful. As a further result of the said legality the ultimate listed status of the structure is unlawful. The said structure having been unlawfully removed from List 1, must, as a matter of law be said to remain on List 1.
(g) The recital of the fact that the said structure is on List 2 of the Dublin City Development Plan by An Bord Pleánala in granting planning permission constitutes an error of law by An Bord Pleánala. An Bord Pleánala further acted unlawfully and without jurisdiction as it was alerted to the legality surrounding the alleged listed status of the structure and nature during the oral hearing and failed to give due consideration to the issue or in the alternative wrongly concluded that the building was on List 2 of the Development Plan. At page 20 of his report, An Bord Pleánala's Inspector says:-
"…the building is included at List 2, buildings to be protected - in the new Development Plan. The interior of the building is not listed. The Inspector concluded that the interior of the building was not protected. This conclusion was wrong in law. The Inspector's error is highlighted by his own report. At page 21 of the report the Inspector notes "the building is included in List 2. Policy CA3 [of the Dublin City Development Plan] states "it is the policy of Dublin Corporation to prevent the demolition or any material alteration, without planning permission, of buildings and structures included in List 2, Volume 2."
(h) The Board and its Inspector unlawfully concluded that the interior of the building was not listed, notwithstanding the fact that the Inspector had detected the relevant provision of the Development Plan which made it...
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