Quinlan -v- An Bord Pleanála & Anor, [2009] IEHC 228 (2009)

Docket Number:2008 1199 JR
Party Name:Quinlan, An Bord Pleanála & Anor
Judge:Dunne J.
 
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THE HIGH COURT

JUDICIAL REVIEW2008 1199 JR

BETWEEN

DEREK QUINLANAPPLICANT AND

AN BORD PLEANÁLA

AND

DUBLIN CITY COUNCILRESPONDENTSJUDGMENT of Ms. Justice Dunne delivered on the 13th day of May, 2009

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

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

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

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;

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;

Repair and refurbishment of existing windows; and

Replacement of all gutters and downpipes." The above permission will be referred to hereinafter as the "refurbishment permission".

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

"The refurbishment and extension of the existing offices comprising: Removal of a freestanding brick pier pergola at the rear of the property and gates at the side of the property;

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

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

Installation of damp proofing at garden level;

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;

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;

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." 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.

Dublin City Council granted both applications on the 16th 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:-

"1. Insofar as the Planning and Development Act 2000 - 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.

Reason:

To comply with Planning Regulations.

  1. 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.

    Reason:

    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."

    The applicant appealed on the 12th 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 3rd 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.

    The applicant herein instituted these proceedings seeking to quash the decision of the Board of the 3rd December, 2008, and the consequent notification of grants of planning permission of the Dublin City Council of the 9th September, 2008, on the 28th October, 2008. The proceedings were admitted in to the commercial list of the High Court and it was directed that the application for leave to institute judicial review proceedings and the substantive hearing be heard together. At the commencement of the hearing before me certain assurances were given by the applicant to Dublin City Council and as a result of those assurances, Dublin City Council limited its representation before the court and effectively took no further part in the hearing.

    Background

    It is important to note at the outset that each of the applications for planning permission described the property as "the existing offices". The property is a protected structure as mentioned previously and is located within the zoning objective Z2 of the Dublin City Development Plan 2005 - 2011, which provides that it is "to protect and/or improve the amenities of residential preservation areas". A conservation architect's report was submitted with the applications which sets out the history of the property. There is little or no dispute between the parties as to the history of the property. In the conservation architect's report it was stated that:-

    In 1962 the house was taken over by the German Embassy which continued in residence there through the 1980s. By the end of the 1980s the Embassy was joined in the building by Silvermines Limited and stayed at the address until the mid 1990s when the Mexican Embassy took over residence.

    Following the placing of a site notice and the publication of a notice in a newspaper, the only observation received by Dublin City Council in relation to the applications for planning permission was in the form of a letter sent to Dublin City Council by Nuala Johnson of the Ailesbury Road Residents Association asking Dublin City Council to take account of the following matters:-

    1. That no planning application for office use has ever been made with regard to this residence going back to 1962 when such permission became obligatory.

    2. The reversion of embassy offices to residential dwellings has been the rule for many years. No. 43 has been used for embassy offices since 1973 and so strictly should return to domestic use.

    A request for further information was sent by the deputy planning officer of Dublin City Council to the applicant's planning consultants in the following terms:-

    The submitted documentation is unclear concerning the present, intended and authorised uses of the subject premises. The site is zoned Z2 (residential conservation) where the primary land use objective of the planning authority is residential and where office use is not permitted and embassy use is only open to consideration. Prior to determining this application the applicant is requested to submit the following:

    A series of questions were then raised. The applicant responded to the request for further information as follow:-

    A. A statement indicating by what grant of planning permission the stated embassy use was authorised.

    The stated embassy use is not authorised by way of a grant of permission. The use is authorised by virtue of being legally established on the appointed day of 1st October, 1964. the attached affidavits sworn by officials of the Embassy of the Federal Republic of Germany show that the premises were used as an embassy from 1960 to 1985. (See Appendix A).

    B. A statement indicating by what grant of planning permission the stated office use was authorised.

    The authorised embassy use is a particular type of office use whose character is principally administrative or office in nature whose principal function is not to provide services to visiting members of the public. Accordingly, it would fall within Class 3 of the use of Classes Order. The stated office use being of the same character and description in land use in that it does not provide services to visiting members of the public also falls within Class 3. As the stated office use and the authorised embassy use fall within the same use, no change of use requiring planning permission arises.

    It is apparent from the history of the premises that from time to time part of the premises was used as offices occupied by non embassy users. It is also clear that the property has not been used as a residence since the 1st October, 1964.

    The deputy planning officer of the Dublin City Council in his report dated the 15th January, 2008, stated:-

    "The applicant appears to be trying to establish a general office use in this premises on the basis that on the 1st October, 1964, there was no differentiation between use as an embassy and use as an office, and that the use classes are interchangeable suggesting that they both fell in to Class of Part 4 of the Second Schedule of the 2001 Planning and Development Regulations."

    He then recommended the grant of permission subject to the imposition of Condition No. 3 in respect of each application. Following the recommendation of the deputy planning officer, Dublin City Council granted the permissions subject to the conditions referred to above.

    I should also refer...

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