Paul Walsh v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 01 April 2022
• Neutral Citation: [2022] IEHC 172
• Docket Number: [2021 No. 304 JR]
• Court: High Court

Between

Paul Walsh

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

St. Clare's GP3 Limited

Notice Party

[2022] IEHC 172

[2021 No. 304 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on Friday the 1st day of April, 2022

1 The housing development at issue here, located at St. Clare's Park, Harold's Cross Road in Dublin 6W, has involved eight planning permissions so far and three judicial reviews.

2 One of the previous judicial reviews was settled on terms that were not only not carried out, but currently can't be carried out. The developer settled the case on the basis of agreeing to tree-planting works in order to protect the applicant's privacy. But the developer was a subsidiary company in the Marlet Property Group, and the parent company later dissolved the particular subsidiary without the tree planting works having been carried out.

3 Other unusual features of the case include the hybrid nature of the permissions — previous permissions were granted under the normal planning process, but the application for an additional height increase with which we are now concerned was made under the strategic housing development (SHD) process.

4 That application was made at a time when the original apartment blocks were under construction although they have now been completed without the top-up envisaged by the present permission. It is thus not entirely clear whether the notice party developer is actually going to carry out the development to which these proceedings relate and indeed the developer did not get involved in the proceedings.

5 The applicant resides adjacent to the development and the rear of his house has a boundary with the development site. He has considerable concerns regarding privacy and the overlooking of his property.

6 The first judicial review, Walsh v. An Bord Pleanála [2018 No. 1083 JR], challenged a decision to grant permission for an earlier stage within the scheme. That case was settled as noted above on terms that required the planting of mature trees behind the boundary to the applicant's house to provide the necessary privacy in circumstances where pre-existing mature trees had been removed unlawfully, according to the applicant.

7 The applicant states that the settlement terms were not implemented and the parent company has wound up the subsidiary concerned. The consequence is that the side and rear of the applicant's house is now directly overlooked by apartments in Block J2 of the development contrary to what was agreed, according to what the applicant submits here.

8 Assuming arguendo that the applicant's complaints are valid (and fully bearing in mind that I haven't heard the developer's side of the story because they decided not to appear), one assumes that the options for addressing this would include the following:

• (i). If the removal of trees was a substantial unauthorised development (see Doorly v. Corrigan [2022] IECA 6, ( [2022] 1 JIC 2104 Unreported, Court of Appeal, 21st January, 2022), for an example), the council or board would be entitled to refuse a future permission applied for by the developer's group under s. 35(1) of the Planning and Development Act 2000. That power doesn't depend on a court finding of unauthorised development, and can't be limited to the acts of a particular corporate entity within a group, since that would render the legislation totally ineffective, contrary to national and European principles of environmental protection: see Eco Advocacy CLG v. An Bord Pleanála (No. 1) [2021] IEHC 265, ( [2021] 5 JIC 2704 Unreported, High Court, 27th May, 2021). One might speculate that if this power was to be proposed against any particular developer in this kind of situation, the required trees might well materialise overnight.

• (ii). In terms of action by the applicant directly, where a party does not comply with a settlement agreement, the normal solution is to sue on the agreement rather than to reactivate the original proceedings. As the disappointed beneficiary of an unsatisfied contractual term, he would in principle seem to have a right of action for damages, thus making him a “creditor” with the consequential right to apply to reinstate the company to the register for the purposes of suing it, under s. 738(2) of the Companies Act 2014. Any divestment of assets in favour of the parent company is unlikely to be an issue given that the application would be by way of equitable proceedings and thus assets could be traced to the parent company and orders could be made in personam against individual directors or officers.

9 Hopefully none of that would be necessary and the applicant can simply resolve the matter by agreement with the parent company, but if not there must be a legal avenue available to the court to resolve matters. If the foregoing conventional possibilities are not availed of there are presumably other options for discussion, such as whether dissolving a company with an outstanding liability under a settlement agreement without addressing that amounts to some other form of legal breach. Presumably it won't be necessary to explore those questions.

10 In relation to the present phase of the development, consultations with Dublin City Council took place on 15th March, 2019 and a statutory pre-application consultation with the board was requested on 2nd August, 2019.

11 The inspector conducted a site visit on 30th August, 2019, and the board, the city council and the developer had a meeting on 12th September, 2019. The inspector reported on the pre-application consultation on 3rd October, 2019, and an opinion that the development was SHD was issued in October 2019.

12 On 21st October, 2019, the developer applied for permission under the SHD procedure.

13 The applicant made a submission on 25th November, 2019.

14 The inspector carried out a site inspection on 27th November, 2019.

15 On 6th December, 2019, the board invited further submissions on a landscape and visual appraisal report dated October 2019.

16 The applicant responded to that by a submission in January 2020.

17 On 27th January, 2020, the inspector reported on the application. The board decided to grant permission on foot of that, in a decision dated 14th February, 2020.

18 The applicant sought judicial review of that decision in the second set of proceedings in this matter: Walsh v. An Bord Pleanála [2020 No. 266 JR].

19 Leave was granted on 16th April, 2020 and certiorari was conceded by the board on 17th July, 2020.

20 The developer applied for remittal of the matter back to the board and after a contested hearing, McDonald J. granted that order on 17th September, 2020. The order for remittal was perfected on 27th October, 2020.

21 The board then issued a direction on 12th November, 2021 concerning an oral hearing in the remitted application.

22 Section 135(2AB) of the Planning and Development Act 2000 allows the board to limit the agenda for an oral hearing, but only on foot of a recommendation of the inspector. However, the board's direction in the present case simultaneously proposed the appointment of a new inspector and the limitation of the agenda. This is manifestly contrary to the statutory procedure, something that didn't seem to me to be vigorously disputed by the board. Fortunately for the board, the applicant didn't make that point, so what would otherwise have been a completely null and void procedure thereafter becomes effectively valid because it wasn't challenged, at least as far as the order of certiorari itself is concerned.

23 On 10th December, 2020, the board notified the applicant's planning consultants that there would be an oral hearing.

24 On 14th December, 2020, the applicant requested that the board would communicate with him and his solicitor rather than his former planning consultant. The board agreed to do that, but failed to implement that agreement, and sent a notice of the oral hearing to his former planning consultant on 21st December, 2020, setting out the limited agenda for that hearing dealing with the landscape and visual assessment and the sunlight and daylight analysis.

25 A site inspection by the inspector took place on 12th January, 2021 albeit that the applicant was not made aware of that at the time.

26 On 19th January, 2021, the developer uploaded approximately 300 pages of new documentation to the development project website. The applicant was not specifically informed of that as it happened, although he became aware of it later in the day.

27 The oral hearing by video conference took place the following day on 20th January, 2021. Further additional information was provided by the developer on that date in the course of the hearing.

28 On that date, the inspector refused the applicant's application to adjourn the oral hearing.

29 Following the oral hearing, the applicant made a further submission on 22nd January, 2021 within the additional period of two days that had been allowed by the board for observers to make replying submissions.

30 The inspector's report was completed on 1st February, 2021.

31 On 3rd February, 2021, the board decided to grant permission. The decision was formally made on 15th February, 2021.

32 On 12th April, 2021, a statement of grounds seeking certiorari of that decision was filed – the third and present judicial review — and leave was granted.

33 When the hearing opened on 1st March, 2022, I struck out relief D3 against the State by consent and released the State from further participation in the proceedings. Thus the case proceeded as between the applicant and the board alone.

34 The applicant also dropped reliance on art. 47 of the EU Charter of Fundamental Rights as pleaded in grounds 1 and 3, so the case became purely one of domestic law. It also turned out that the applicant's amended statement of grounds and the board's...