Paul Clinton v an Bord Pleanála, Dublin City Council (and by order) Attorney General (No. 2)

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date02 May 2007
Neutral Citation[2007] IESC 19
Docket Number[S.C. Nos.
CourtSupreme Court
Date02 May 2007

[2007] IESC 19

THE SUPREME COURT

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

347/05
348/05
Clinton v Bord Pleanala & Ors
BETWEEN/
PAUL CLINTON
Applicant/Appellant

and

AN BORD PLEANÁLA, DUBLIN CITY COUNCIL AND BY ORDER THE ATTORNEY GENERAL
Respondents

and

RICHARD QUIRKE, DUBLIN POOL AND JUKE BOX COMPANY LIMITED, BAYCROSS DEVELOPMENTS LIMITED, CARROLLS OF DUBLIN LIMITED, COLM CARROLL, REGAN DEVELOPMENTS LIMITED, DANIEL TROY AND CHRISTOPHER TROY TRADING AS TROY BROTHERS, DOYLES STORES LIMITED, F.X. BUCKLEY LIMITED, STEPHEN ROSS TRADING AS INDUSTRIA, SIMON HART LIMITED, JOHN CORCORAN, JAMES COUSINS LIMITED, MARTINA INVESTMENTS LIMITED AND PETER SLATTERY LIMITED
Notice Parties

PLANNING & DEVELOPMENT ACT 2000

PLANNING & DEVELOPMENT ACT 2000 S213

PLANNING & DEVELOPMENT ACT 2000 S212

PLANNING & DEVELOPMENT ACT 2000 S213(1)

PLANNING & DEVELOPMENT ACT 2000 S213(3)

PLANNING & DEVELOPMENT ACT 2000 S212(1)(E)

PLANNING & DEVELOPMENT ACT 2000 S212(1)(D)

PLANNING & DEVELOPMENT ACT 2000 S213(3)(A)

PLANNING & DEVELOPMENT ACT 2000 S213(3)(B)

MOVIE NEWS LTD v GALWAY CO COUNCIL UNREP KENNY 30.3.1973

LOCAL GOVT (IRL) ACT 1898 S10

CROSBIE v CUSTOM HOUSE DOCK DEVELOPMENT AUTHORITY 1996 2 IR 531 1996/2/569

PROCTOR & GAMBLE LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 63 P & CR 31

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

O'BRIEN v BORD NA MONA 1983 IR 255

TURF DEVELOPMENT ACT 1946

PREST v SECRETARY OF STATE FOR WALES 81 LGR 193

PLANNING AND ENVIRONMENTAL LAW

Compulsory purchase order

Urban renewal - Purpose for which order made - Whether purpose specified with sufficient particularity in order - Whether order valid - Oral hearing - onus of proof in context of compulsory purchase order - Crosbie v Custom House Dock Development Authority [1996] 2 IR 531; O'Brien v Bord na Móna [1983] I.R. 255 and Prest v Secretary of State for Wales (1983) 81 LGR 193 considered - Planning and Development Act 2000 (No 30), ss 212 and 213 - Applicant's appeal dismissed (347 & 348/2005 - SC - SC - 2/5/2007) [2007] IESC 19

Clinton v An Bord Pleanála

1

JUDGMENT of Mr. Justice Geoghegan delivered the 2nd day of May 2007

2

For some considerable time it was well known that Dublin City Council had plans for the regeneration of O'Connell Street so that it would become a major street of importance. The area particularly earmarked for regeneration was that between O'Connell Street and Moore Street and it was intended that there be a new connecting street. The above-named appellant is the owner of some properties within that area and he combined with the owners of two other properties in the same area, a Mr. Quirke and a Mr. Carroll to form "The Carlton Partnership" so as to submit plans for and engage in the development of the area. The partnership in turn made informal arrangements for a combined development with another local owner a Mr. McGettigan, who owned a property at the north of the site Nos. 46/49 O'Connell Street which was known as the Fingal Building. The four owners together were known as "The Carlton Group". The name of the partnership and of the group respectively was derived from the Carlton Cinema the site of which had been identified as the key site whereby the regeneration would be achieved.

3

The Carlton Group duly obtained, through An Bord Pleanála, planning permission for development of the entire area in a particular way and there is no dispute that that form of development, had it been implemented, would have fulfilled the requirements of Dublin City Council for the regeneration of the area of Upper O'Connell Street. No meaningful steps, however, were perceived as having been taken by the group to develop the site and the City Council came to the conclusion that in practice for reasons which I will explain in more detail later on in the judgment and mainly due to lack of development expertise, the planning permission was not in reality going to be implemented. The City Manager, therefore, decided that a Compulsory Purchase Order would be made so as to enable the council to take control of the situation and either develop the site itself or arrange for some appropriate development by a third party. At all material times, the council made no secret of the fact that it had no particular development in mind apart from a broad general scheme and that for that reason a compulsory purchase order was stated to be simply for development purposes. This was following the wording of one of the purposes permitted by statute. An Bord Pleanála, pursuant to the Planning and Development Act, 2000, had the function of confirming the compulsory purchase order which it did with some modifications and with a slight alteration in wording of the stated purpose something to which I will return.

4

The appellant applied on notice for leave to obtain judicial review of the confirmed compulsory purchase order on a number of different grounds. The application for leave came for hearing before Finnegan P. As all parties were in agreement that the interpretation of section 213 of the Planning and Development Act, 2000 was crucial to the arguments and that a judicial decision on that interpretation would be useful to all, the application for leave, as such, was not opposed but the application for judicial review itself was contested and was fully heard by Finnegan P. In a reserved judgment, the former President refused the judicial review remedy sought and the appellant has appealed that decision to this court.

5

The necessary certificate to the effect that the decision involved a point of law of public importance and that it was in the public interest that an appeal should be brought was duly sought from Finnegan P. and was granted in respect of one suggested ground only. When the appeal duly came before this court, the issue arose as to whether this court would be confined to dealing with the certified point only or whether, on a correct interpretation of the statutory provision, this court must deal with every ground of appeal. In an earlier reserved judgment delivered by Denham J., she came to the view (with the concurrence of all members of the court) that all grounds of appeal were open. That is the form of appeal now with which this judgment is concerned.

6

The written submissions lodged on behalf of the appellant take up 94 pages and there are extensive written submissions on behalf of the first, second and third-named respondents. The Attorney General was joined because of an attack, if necessary, on the constitutionality of the relevant statutory provision but this judgment will not be concerned with that matter.

7

Despite the lengthy submissions of the appellant and the detailed legal analysis with much of which I agree and the extensive oral submissions before the court, it would not be unfair to the appellant to adopt the reductionist approach of An Bord Pleanála in its written submissions where the point is made that essentially, the appellant is making two main complaints. To quote that submission:

"Firstly, he complains that at the oral hearing he was required by the Board to justify the retention of his property rather than the Council being required to justify its acquisition. Secondly, he complains that the purpose relied on by the Council, i.e. the statutory purpose of 'development' is unacceptably general. This latter argument is partly based on the interpretation to be given to section 213 of the Planning and Development Act, 2000 but also on the contention that the absence of a more specific purpose in the form of a specific development proposal meant that the appellant was denied natural justice in attempting to oppose the CPO."

8

For reasons which I will be explaining in some detail, I would reject both complaints. It is misleading to suggest that the Board reversed the onus of proof. If the council was correct in law in maintaining that it merely had to show that the property was required by it for development purposes without having to be specific as to the precise Carlton development, given the stated and known reason which was the regeneration of the O'Connell Street area, then there was very little which the council had to prove on a prima facie basis. Understandably, the inquiry would have been taken up for the most part with the objections raised by the appellant. There is nothing in the evidence before the court or in the Inspector's Report to justify the complaint that an onus was in any way reversed.

9

In relation to the second complaint it would seem that the council had two alternative answers. One was that as "development" was specified as a statutory purpose in the Planning and Development Act, 2000 the council was not obliged to go beyond proving that the property was required for a named statutory purpose. That was the view endorsed by the learned President of the High Court in his judgment. The alternative argument which I prefer, at least for the purposes of this case, is that because the property was required for the legitimate purpose of regeneration of the O'Connell Street area, the precise nature of this specific development was not required to be proved even if it be the case that in some other situations it might have to be done. I will be elaborating further in due course.

10

The principal grounding affidavit of the appellant was sworn on the 13th March, 2003. In that affidavit, the appellant exhibits a written objection to the Compulsory Purchase Order which he prepared for the purposes of the inquiry and also a précis of his evidence which he furnished to the inspector at the inquiry. The affidavit contains 106 paragraphs but the main thrust of the appellant's complaint is contained in...

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