Quinlan v Bord Pleanála & Dublin City Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 13 May 2009
• Neutral Citation: [2009] IEHC 228
• Court: High Court
• Docket Number: [No. 1199 J.R. /2008]
• Date: 13 May 2009

[2009] IEHC 228

THE HIGH COURT

[No. 1199 J.R. /2008]

Quinlan v Bord Pleanála & Dublin City Council

JUDICIAL REVIEW

BETWEEN

DEREK QUINLAN

APPLICANT

AND

AN BORD PLEANÁLA

FIRST NAMED RESPONDENT

AND

DUBLIN CITY COUNCIL

SECOND NAMED RESPONDENT

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 10(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 4 CLASS 2

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 22(3)(A)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 22(3)(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 26(2)

PLANNING & DEVELOPMENT ACT 2000 S34(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 4 CLASS 3

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

GRIANAN AN AILEACH INTERPRETATIVE CENTRE CO LTD v DONEGAL CO COUNCIL (NO 2) 2004 2 IR 625 2005 1 ILRM 106 2004/19/4446 2004 IESC 43

B & Q (IRL) LTD v BORD PLEANALA UNREP QUIRKE 10.11.2004 (EX TEMPORE)

DUBLIN CITY COUNCIL v LIFFEY BEAT LTD 2005 1 IR 478 2005/17/3447 2005 IEHC 82

REHABILITATION INSTITUTE v DUBLIN CORP UNREP BARRON 14.1.1988 1988/3/626

PLANNING & DEVELOPMENT ACT 2000 S34(4)

PYX GRANITE CO v MINISTRY OF HOUSING 1958 1 QB 554 1958 2 WLR 371 1958 1 AER 625

NEWBURY DISTRICT COUNCIL v SECRETARY OF STATE FOR THE ENVIRONMENT 1981 AC 578 1980 2 WLR 379 1980 1 AER 731

VISCOUNT SECURITIES LTD, IN RE 1978 112 ILTR 17

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

KILDARE CO COUNCIL v GOODE CONCRETE 1999 2 IR 495 2000 1 ILRM 346 1999/15/4341

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446 2003/3/564

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

PLANNING & DEVELOPMENT ACT 2000 S34

KILLINEY & BALLYBRACK RESIDENTS ASSOCIATION v MIN FOR LOCAL GOVT (NO 2) 1978 ILRM 78 1978 112 ILTR 9

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

MCDOWELL & BRENNAN v ROSCOMMON CO COUNCIL UNREP FINNEGAN 21.12.2004 2004/34/7820

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Protected structure - Refurbishment and extension -Attachment of condition that premises to be used solely as embassy - Appeal against imposition of conditions - Development plan - Zoning objective - Application relating to works - Whether condition not reasonably related to development where condition related to use - Whether office use for embassy purposes came within class 3 office use - Whether condition in relation to entirety of premises unreasonable - Whether condition justified by development plan - Whether condition imposed for ulterior purpose - Established use of property - Whether Board entitled to consider established use was as embassy and not within definition of office use - Whether court appropriate body to determine established use of property - Locus standi - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Grianan an Aileach Centre v Donegal County Council (No 2) [2004] 2 IR 625; B&Q Ireland Ltd v An Bord Pleanála (Unrep, Quirke J, 10/11/2004); Dublin City Council v Liffey Beat Ltd [2005] 1 IR 478; Rehabilitation Institute v Dublin Corporation (Unrep, Barron J, 14/1/1988); Pyx Granite Company Ltd v Minister for Housing [1958] 1 QB 554; Newbury District Council v Secretary for the Environment [1981] AC 578; Re Viscount Securities Ltd [1976] 62 ILTR 17; Kildare County Council v Goode [1999] 2 IR 495; Ashbourne Holdings v An Bord Pleanála [2003] 2 IR 114; Killiney and Ballybrack Development Association Ltd v Minister for Local Government [1978] ILRM 78 and McDowell v Roscommon County Council (Unrep, Finnegan P, 21/12/2004) considered - Planning and Development Act 2000 (No 3), ss 34 and 50 - Planning and Development Regulations 2001 (SI 600/2001), art 10 - Relief refused (2008/1199JR - Dunne J - 13/05/2009) [2009] IEHC 228

Quinlan v An Bord Pleanála

Facts: The applicant was the owner of premises on Ailesbury Road, Dublin 4 and applied for two separate planning permissions, including to alter and refurbish the exterior and interior of the existing offices and to extend the premises. Dublin City Council granted the applications subject to conditions, that the use of the entire premises be retained solely for use as an embassy. The applicant appealed to An Bord Pleanala the condition and then the applicant sought to quash the decision of the Board, which had not accepted the inspectors recommendation to omit the condition as to use. The applicant alleged inter alia that the conditions imposed related to use and not the carrying out of works, was unreasonable and disproportionate, was not warranted by the Development Plan and was imposed for an ulterior purpose of controlling development.

Held by Dunne J. that it was within the remit of the Board to consider what the established use of the premises was on the appointed day. There was nothing before the Court to suggest that the Board took into account irrelevant or inappropriate matters. There was a distinction between use and works. The condition imposed fell within the scope of s. 34 Planning and Development Act 2000. There were no grounds upon which it could be held that the Board decision was invalid or ought to be quashed. The reliefs sought would be refused.

Reporter: E.F.

Ms. Justice Dunne

1 The applicant herein is the owner of premises known as 43 Ailesbury Road, Dublin 4 (hereinafter referred to as "the property"). The applicant applied for two separate planning permissions, namely 5718/07 and 5719/07 to Dublin City Council. The first of the applications was in the following terms:-

"The alteration and refurbishment of the exterior and interior of the existing offices comprising:"

2 Removal of a free standing brick pier pergola at the rear of the property and the gates at the side of the property;

3 Alterations to combine existing kitchen and store at garden level to form larger kitchen;

4 Minor alterations to the window and door openings on the rear elevation and building return;

5 Installation of new window on rear of building return at garden level; Replacement of all facing bricks on front and side elevations with salvage or custom made facing bricks;

Rendering of sides and rear elevation;

Re-slating of roof using existing slates and matching replacements;

Installation of damp proofing at garden floor level;

6 Replacements of all non-original internal doors and joinery with new to match existing;

Upgrading of existing bathrooms;

Minor modifications to internal walls and openings;

7 Repair and refurbishment of existing windows; and Replacement of all gutters and downpipes."

8 The above permission will be referred to hereinafter as the "refurbishment permission".

9 The second permission (hereinafter referred to as "the extension permission"), is in the following terms:-

"The refurbishment and extension of the existing offices comprising:"

10 Removal of a freestanding brick pier pergola at the rear of the property and gates at the side of the property;

11 Construction of a single storey extension at the rear of the property;

12 Alterations to combine existing kitchen and store at garden level to form larger kitchen;

Installation of damp proofing at garden level;

13 Minor alterations to the window and door openings on the rear elevation and building return at garden level to facilitate access to the proposed extension at enlarged kitchen area;

14 Installation of new window on rear of building return at garden level;

15 Replacement of all facing bricks on front and side elevations with salvage or custom made facing bricks;

Re-rendering of side and rear elevation;

Re-slating of roof using existing slates and matching replacements;

Repair and refurbishment of windows; and

Replacement of all gutters and downpipes."

16 The works comprised in the applications would have been exempt from the necessity to obtain permission were it not for the fact that the property is a protected structure.

17 Dublin City Council granted both applications on the 16^th January, 2008, subject to a number of conditions applicable to the each of the grants of permission. It is necessary to refer to two of the conditions imposed on the grants of permission at this point:-

18 2 "1. Insofar as the Planning and Development Act2000 - 2006 and the Regulations made there under are concerned, the development shall be carried out in accordance with the plans, particulars and specifications lodged with the application, as amended by the further information received on the 21/12/07, save as may be required by the conditions attached hereto. For the avoidance of doubt this permission shall not be construed as approving any development shown on the plans, particulars and specifications, the nature and exempt of which has not been adequately stated in the statutory public notices.

19 To comply with Planning Regulations.

20 3. The use of the entire premises shall be solely for use as an embassy as defined at Appendix 13 of the 2005-2011 Dublin City Development Plan and shall not be used as general offices or any other uses unless authorised by a prior grant of planning permission.

21 To control development, to protect the amenities of this residential conservation area as zoned in the current development plan and to facilitate the zoning objectives of that plan."

22 The applicant appealed on the 12^th February, 2008, to An Bord Pleanála (hereinafter referred to as "the Board") against the imposition of Condition No. 3 in each of the notifications of decision to grant planning permission. Having considered the appeal, the Board, by order dated the 3^rd September, 2008, directed Dublin City Council to attach Condition No. 3 to the grants of permission. In making that decision, the Board did not accept its inspector's recommendation to omit Condition No. 3.

23 The applicant...