North Wall Property Holding Company Ltd v Dublin Docklands Development Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 20 January 2009
• Neutral Citation: [2009] IEHC 11,[2008] IEHC 305
• Date: 20 January 2009
• Court: High Court
• Docket Number: 2007 1527 JR [2007 No. 188 COM]

North Wall Property Holding Company Ltd v Dublin Docklands Development Authority

JUDICIAL REVIEW

COMMERCIAL

BETWEEN

NORTH WALL PROPERTY HOLDING COMPANY LTD. AND SEAN DUNNE

APPLICANTS

AND

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY

RESPONDENT

AND

NORTH QUAY INVESTMENTS LTD.

NOTICE PARTY

[2008] IEHC 305

[No. 1527 J.R./2007]

[No. 188 COM/2007]

THE HIGH COURT

Abstract:

Planning and development law - Judicial review - Certiorari - Dublin Docklands Development - Agreement - Fair procedures - Bias - Consistency with Planning Scheme - Public Docklands Development Authority Act 1997

Facts: The applicants had contractual rights to property adjacent to the lands of the notice party and were the subject of the dispute in respect of a certificate issued pursuant to s. 25 of the Docklands Development Authority Act 1997. The applicants were granted leave for judicial review, seeking an order of certiorari in respect of the certificate. The applicants contended inter alia that the decision to grant the certificate was in breach of fair procedures, in that no opportunity was given to adjoining landholders to make submissions, that the decision was not consistent with the Planning Scheme of the area and was made in breach of the rule against apparent bias.

Held by Finlay Geoghegan J. that an order of certiorari would be granted in respect of the decision to grant a certificate and a declaration would be granted that the Agreement between the respondent and notice party was ultra vires the respondent. The executives of the Authority had committed themselves to a particular viewpoint and it had created a reasonable apprehension of bias in the decision made. The decision had been taken without affording adjacent landowners the opportunity of making submissions. The respondent was confined to considering the Planning Scheme only and so the decision taken was not consistent with that Scheme, given that it related to a larger site and not the size of site contemplated in the Scheme.

Reporter: E.F.

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25

RSC O.63A r4

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S14(1)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S14(2)(a)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S14(3)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S19

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S20

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S21

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18(b)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S20(1)(a)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S20(1)(b)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S20(1)(c)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S24(2)(b)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S24(3)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S24

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S24(5)

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2002 S22

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(7)(c)(ii)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(8)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(7)(a)(ii)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(7)(c)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S27

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S42

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(5)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(2)(b)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(2)(c)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S21(1)(a)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18(1)(b)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18(1)(a)

PLANNING AND DEVELOPMENT ACT 2000 S5

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S24

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(3)(e)

MCGARRY, AG v SLIGO CO COUNCIL 1991 1 IR 99

TENNYSON v D ÚN LAOGHAIRE CORPORATION 1991 2 IR 527

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

GRIANÁN AN AILEACH INTERPRETATIVE CENTRE CO LTD v DONEGAL CO COUNCIL 2004 2 IR 625

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(7)(c)(iii)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25(7)(a)

IN RE XJS INVESTMENTS LTD 1986 IR 750

ASHBOURNE HOLDINGS LTD v BORD PLEANÁLA & CORK CO COUNCIL 2003 2 IR 114

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963 S2(a)

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18(1)

PLANNING AND DEVELOPMENT ACT 2000 S34

SPIN COMMUNICATIONS LTD T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & MAYPRIL LTD 2001 4 IR 411

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION COMMISSION (I.R.T.C.) 1997 2 IR 291

STEEPLES v DERBYSHIRE CO COUNCIL 1985 1 WLR 256

1 Ms. Justice Finlay Geoghegan delivered on the 9th day of October, 2008

Preliminary

2 1. The applicants are each stated to have contractual rights in a property at North Wall Quay, Dublin, adjacent to the lands of the notice party, which are the subject matter of a certificate issued by the respondent pursuant to s. 25 of the Dublin Docklands Development Authority Act 1997, in respect of a proposed development on part of a site bound by North Wall Quay, New Wapping Street, Mayor Street and Castleforbes Street, Dublin 1. The certificate is dated 13 ^th July, 2007, and bears the reference"DD457" and was issued to the notice party.

3 2. The respondent is a statutory body established by the Dublin Docklands Development Authority Act 1997 ("the Act of 1997"). The notice party is the beneficiary of certificate DD457 and the owner of a large site on part of which the development referred to in certificate DD457 is to take place. The notice party's site surrounds on three sides the applicants' site.

4 3. By order of the High Court of 19 ^th November, 2007, (Peart J.) the applicants were granted leave to apply by way of an application for judicial review for inter alia an order of certiorari of the certificate DD457 and related declarations and other relief.

5 4. By order of the High Court (Kelly J.) of 10 ^th December, 2007, the proceedings were admitted to the commercial list pursuant to 0.63A, r. 4, of the Rules of the Superior Courts.

6 5. By further order of the High Court of 21 ^st December, 2008, (Kelly J.) the applicants were granted leave to amend the statement of grounds so as to include an application for an order of certiorari quashing a purported agreement dated 31 ^st May, 2007 ("the Agreement") between the notice party and the respondent, and to include additional grounds, both in relation to the application for certiorari of the certificate DD457 and the Agreement.

7 6. The respondent and notice party have each delivered amended statements of opposition. Affidavits have been filed on behalf of all parties and written legal submissions.

8 7. In the course of the hearing, there was limited cross-examination of one of the respondent's witnesses and two further affidavits were filed in Court on behalf of the respondent, clarifying certain confusion which had arisen as to precisely what documents were before the Board of the respondent when the decision to grant certificate DD457 was made.

Grounds

9 8. At the commencement of the proceedings, the major concerns of the applicants appears to have been a perceived failure of the development, the subject matter of certificate DD457, to provide for an east-west route between New Wapping Street and Castleforbes Street, and the potential adverse effect of that failure and the provision in the development for an "industrial-scale basement access ramp", both of which were alleged to potentially adversely affect the amenity of a residential development proposed by the applicants and which is the subject matter of a certificate DD188, dated 7 ^th August, 2003, issued by the respondent. Prior to the hearing, the respondent applied for, and was granted, a certificate DD525 dated 10 ^th April, 2008, for a development consisting of a relocation of the basement access ramp in the development the subject matter of certificate DD457, by 17m. to the north, and associated works. As a consequence of this, at the hearing the applicants did not pursue the grounds relating to the basement ramp and the east-west route became of less significance.

10 9. At the hearing the applicants pursued their claim for an order of certiorari of certificate DD457 on the ground that it was ultra vires the respondent on one or more of the following grounds:

11 (i) The decision to grant certificate DD457 was taken in breach of the applicants' rights to fair procedures and, in particular, the opportunity to make submissions/observations on the application of the notice party for the certificate.

12 (ii) The proposed development is not consistent with the Docklands North Lotts Planning Scheme ("the Planning Scheme"). In particular;

13 (a) The proposed development fails to meet the minimum mix of residential and commercial use prescribed by paragraph 4.1 of the Planning Scheme; and

14 (b) the height of the buildings of the proposed development is not consistent with the requirements of section 5 of the Planning Scheme.

15 (iii) Section 25 of the Act of 1997 (as amended) does not permit the respondent to impose conditions for the purpose of making an otherwise inconsistent proposed development consistent with the Planning Scheme as was done in certificate DD457.

16 (iv) The decision of 13 ^th July, 2007, to issue certificate DD457, was made in breach of the rule against apparent bias by reason of the existence of the Agreement of 31 ^st May, 2007, and its terms and/or the respondent took into account an irrelevant consideration i.e. the Agreement in reaching its said decision.

17 10. The...