Noel Ross and Another v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] IEHC 256 |
| Court | High Court |
| Date | 23 April 2015 |
[2015] IEHC 256
THE HIGH COURT
BETWEEN
AND
Judicial review – Order of certiorari – Planning permission – S. 154 of the Planning and Development Act 2000 (as amended) – Exception.
Facts: The respondent had determined that the replacement of a mobile home following fire was a ‘development’ and it was not an exempted development. An application for retention planning permission for the newly constructed mobile home was made in September 2013. The application was refused by Wexford County Council. In the appeal, the applicants claimed that the replacement of the mobile home was justified on the basis of extenuating circumstances. The applicant contended that the development had minimal visual impact on the local environment. In February 2014, the respondent granted permission for the development stating that it would not seriously injure the visual and recreational amenities and character of the area. The respondents in the permission imposed conditions and restriction. The applicants now applied for an order of certiorari quashing the part of the decision of the respondent relating to conditions imposed.
Mr. Justice Noonan held that the application for an order of certiorari quashing the part of the decision of the respondent granting the planning permission would be dismissed. The Court held that the conditions and restrictions imposed were not severable and therefore, the imposition was rational and understandable. The Court held that the respondent had granted the requested permission. The Court stated that if the request had been permission for the entire year the application would have been denied.
JUDGMENT of Mr. Justice Noonan delivered the 23rd day of April, 2015.
1. In the within proceedings, the applicants seek an order of certiorari quashing that part of the decision of the respondent granting planning permission, being retention of a replacement mobile home at Ballinoulart, Cahor, County Wexford, dated the 27 th of February, 2014 that requires compliance with Condition 2. The applicants further seek a declaration that the respondent acted ultra vires the provisions of the Planning Acts 2000-2013 in granting the permission or alternatively, a declaration that insofar as the powers of the respondent purporting to permit the limitations on the use of private property as set out in the decision, the same are in breach of Articles 40.1, 40.3.2 and 43 of the Constitution. With regard to the latter relief, the applicants accept that the court cannot adjudicate on that claim in the absence of the Attorney General being joined as a notice party.
2. The first named applicant owns a small plot of land comprising 0.1010 hectares (approximately a quarter of an acre) situated at Ballinoulart, Kilmuckridge, County Wexford. The site is situate in a coastal location south of Courtown. The first applicant purchased the site in 1973 together with a mobile home which had been located thereon since in or about 1959. On acquiring the property, he placed a new mobile home on the site. It is accessed by an unpaved track. There are no services. Since that time, the first applicant together with his family, including the second applicant, his son, have used the property as a holiday home enjoying many vacations there.
3. In the summer of 2010, the mobile home was irreparably damaged by fire and was replaced by a new mobile home of the same dimensions and in the same location as the original.
4. On the 20 th of January, 2011, the planning authority, Wexford County Council ("the Council"), served a notice on the first applicant warning him that an enforcement notice under s. 154 of the Planning and Development Act 2000 (as amended) ("the PDA") may be issued against him. Arising from this warning letter, the second applicant, on behalf of his father, made a number of submissions and observations in a letter of the 8 th of February, 2011. In this letter, the second applicant pointed to the fact that many family holidays had been spent in the mobile home since 1973 and he enclosed photographic evidence. The first applicant had become aware in June, 2010 that a fire had severely damaged the mobile home leading to the necessity for its replacement. He submitted that this did not involve a breach of any planning regulation given that there had been a mobile home on the site since 1973 and probably 1959. He further submitted that the structure had been on the land in excess of five years and in the event of proceedings being taken by the local authority, they would be vigorously defended.
5. In a letter of the 10 th of August, 2011, the local authority accepted that the original mobile was in situ for many years and was destroyed by fire damage. It was suggested that the replacement mobile home however was larger and in a new location on the site and it remained the Council's view that planning permission was required. Notwithstanding that view, the Council indicated that it intended referring the case under s. 5(4) of the PDA to the respondent for a determination as to whether the development in issue was exempted development. The applicants were further informed that no enforcement action would be taken until a decision was issued by the respondent.
6. Arising from the s. 5 referral, the second applicant made further written observations to the respondent. He clarified some factual matters and made legal submissions as to why planning permission was not required.
7. The respondent made its decision on the s. 5 referral on the 25 th of January, 2012 and determined that the replacement of the mobile home was development and was not exempted development. The respondent's decision was accompanied by a notice advising that its decision may be challenged by way of judicial review only. No application in that regard was made by the applicants.
8. Instead, the second applicant lodged an application for retention planning permission for the mobile home on the 23 rd of September, 2013. This was grounded on a planning application form dated the 15 th of September, 2013. This is a pro forma document where information was furnished under various headings including the following:
2 "9. Description of proposed development:
(Brief description of nature and extent of development)
Retention of replacement of mobile home …
15. Where the application refers to a material change of use of any land or structure or the retention of such a material change of use:
Existing use (or previous use where retention permission is sought)
Mobile home
Proposed use (or use it is proposed to retain)
Replacement mobile home
Nature and extent of any such proposed use (or use it is proposed to retain)
The retention for replacement of mobile home proposal is for the same use it has been used since 1973 and that is for use for holidays during summer."
9. The first applicant completed a further document furnishing supplementary information required in the case of single rural housing applications. In this, he indicated a willingness to accept an occupancy condition for a period of five years and further referred to the fact that his wife was a member of the local community going on holidays in the area her whole life.
10. In its decision of the 15 th of November, 2013, Wexford County Council refused the application for the following reasons:
2 "1. The development is considered contrary to Objective CZM09 in the Wexford County Development Plan 2013 - 2019, which states that it is an objective of the Council to restrict development outside the boundaries of existing coastal settlements to that which is required to be located in that particular location. A mobile home does not have this particular locational requirement and, therefore, would be contrary to this policy and therefore, contrary to the proper planning and sustainable development of the area.
2. The development is considered contrary to Objective TM 34 in the Wexford County Development Plan 2013 - 2019, which states that it is an objective of the Council to prohibit the replacement of individual mobile homes and caravans in rural or urban areas except in extenuating circumstances. It is considered that the applicant has not demonstrated sufficient extenuating circumstances in this instance. Therefore, the development would be contrary to the proper planning and sustainable development of the area."
11. The decision referred to two objectives of the Wexford County Development Plan 2013-2019 which are as follows:
"It is an objective of the Council:"
Objective CZM09
To restrict development outside the boundaries of existing coastal settlements to that which is required to be located in that particular location such as:
· Development to support the operation of existing ports, harbours and marinas;
· Agricultural development;
· Tourism related facilities appropriate to the particular coastal location (other than new build holiday home accommodation) where there is a demonstration of a location or resource based need;
· Other developments where an overriding need is demonstrated.
New development shall be prohibited where it poses a significant or potential threat to coastal habitats or features, and/or where the development is likely to result in adverse patterns of erosion or deposition elsewhere along the coast and where it is likely to affect the integrity of Natura 2000 sites…
Objective TM34
To prohibit the replacement of individual mobile homes and caravans in rural or urban areas except in extenuating...
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