Rowan v Kerry County Council and Another

JurisdictionIreland
JudgeMr Justice Birmingham
Judgment Date17 February 2012
Neutral Citation[2012] IEHC 65
CourtHigh Court
Date17 February 2012

[2012] IEHC 65

THE HIGH COURT

[No. 895 JR/2011]
Rowan v Kerry County Council & Anor
JUDICIAL REVIEW

BETWEEN

MICHAEL ROWAN
APPLICANT

AND

KERRY COUNTY COUNCIL
RESPONDENT

AND

TIM MULVIHILL
NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S160

O'CONNOR v DUBLIN CORPORATION & BORG DEVELOPMENTS LTD UNREP O'NEILL 3.10.2000 2000/14/5399

GRAMPIAN REGIONAL COUNCIL v CITY OF ABERDEEN DISTRICT COUNCIL 1983 47 P & CR 633

ROADS ACT 1993 S2(1)

KEANE ON LOCAL GOVERNMENT 2ED P84

READYMIX (EIRE) LTD v DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974

GREGORY v DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP GEOGHEGAN 16.7.1996 1998/20/7705

KENNY v DUBLIN CITY COUNCIL UNREP SUPREME 5.3.2009 2009/31/7599 2009 IESC 19

HOARE & ORS v LIMERICK CITY COUNCIL UNREP KEARNS 26.1.2011 2011/25/6675 2011 IEHC 27

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 80

PLANNING & DEVELOPMENT ACT 2000 S179

MCEVOY v MEATH COUNTY COUNCIL 2003 1 IR 208

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

PLANNING & ENVIRONMENTAL LAW

Permission

Condition - Grampian condition - Decision by respondent that condition complied with - Appropriate test in reviewing such decision - Factor to be taken into account - Interpretation of planning permission - Interpretation of âÇÿrealignment' - Interpretation of âÇÿpublic road' - Whether realignment of public road had occurred - Whether decision reasonable - Readymix (Eire) Limited v Dublin County Council (Unrep, SC, 30/7/1974) and Kenny v Dublin City Council [2009] IESC 19, (Unrep, SC, 5/3/2009) applied - O'Connor v Right Honorable Lord Mayor Aldermen and Burgesses of Dublin and Borg Developments Limited (Unrep, O'Neill J, 3/10/2000); Grampian Regional Council v City of Aberdeen District Council [1984] 47 P& CR 633; Gregory v Dun Laoghaire/Rathdown County Council (Unrep, Geoghegan J, 16/7/1996) and Hoare v Limerick City Council [2011] IEHC 27, (Unrep, Kearns P, 26/1/2011) approved - O'Keeffe v An Bord Pleanála [1993] 1 IR 39 distinguished - Planning and Development Regulations 2001 (SI 600/2001), reg 80 - Roads Act 1993 (No 14), s 2 - Planning and Development Act 2000 (No 30), ss 37, 48, 160 and 179 - Reliefs refused (2011/895JR - Birmingham J - 17/2/2012) [2012] IEHC 65

Rowan v Kerry County Council

Facts: The applicant sought certiorari to quash a decision of the respondent purporting to confirm that the public road had been realigned to its satisfaction in accordance with a Condition to a Planning Permission Register Reference and orders that the decision was ultra vires. The applicant sought to restrain further works pursuant to s. 160 Planning and Development Act 2000. The notice party had acquired lands and proceeded to carry out works by clearing vegetation and excavating the lands and sought approval of the road realignment that he had carried out. The respondent replied and stated that it would require yellow lands to be transferred into its ownership to carry out road improvements, for satisfactory alignment.

Held by Birmingham J. that the decision arrived at was a difficult decision and one which the respondent was entitled to arrive at. The application would be refused and the Court would decline to grant the reliefs sought.

Reporter: E.F.

1

JUDGMENT of Mr Justice Birmingham delivered the 17 day of February 2012

2

1. By order of the High Court (McCarthy J.) dated the 23 rdSeptember 2011, the applicant was granted leave to apply by way of judicial review for the following reliefs:-

3

(a) An order of certiorari quashing the decision made by the respondent on or about the 7 th day of September 2011 whereby the respondent purported to confirm that the public road (L-4022) to the south of the site at Doolahig, Glenbeigh, County Kerry had been realigned to its satisfaction in accordance with Condition 1 of Planning Permission Register Reference 04/654 (Appeal Reference PL08.218394).

4

(b) A declaration that the said decision was ultra vires.

5

(c) A stay on the operation of the said decision dated 7 th September 2011.

6

2. The issue of a stay referred to at para (c) has been the subject of a separate ruling by Edwards J. and the Court is now concerned with the relief sought at paras. (a) and (b). The applicant's entitlement to these reliefs is opposed by the respondent and by the notice party.

Factual Background
7

3. The notice party is the owner of farmland at Doolahig, Glenbeigh, County Kerry. There is, and has long been, a private road or laneway running through these lands and joining the public road network at Doolahig. The applicant and other members of his family are the owners of a holiday home in Doolahig which is close to the lands owned by the notice party. Access to the public road network for the applicant and others using the holiday home is by means of the same private laneway or road. For the sake of completeness, I should point out that the lane in question, apart from providing access to the public road network for the occupants of the Rowan holiday dwelling and those visiting or having business at the lands of the notice party, is also used by the occupants of another dwelling. The owners of this dwelling are foreign nationals and have not taken any part in the present proceedings.

8

4. Again for the sake of completeness I should mention that the notice party has erected a structure on his lands which he uses for stabling; one element of the family business of the notice party is the breeding of Kerry bog ponies.

9

5. The notice party has long been anxious to erect a family home on his lands. His attempts to obtain planning permission to do so have given rise to an extraordinary planning saga in which the matter that now comes before the Court is merely the latest chapter. Given the history to date, one could not be at all confident that this will be the last chapter.

10

6. It may be necessary to refer, to some limited extent, to aspects of the tangled planning history. However, of immediate relevance to the application before the Court is that on the 17 th January 2007, An Bord Pleanála ("the Board") decided under s. 37 of the Planning and Development Act 2000, to grant planning permission to Mr. Tim Mulvihill to construct a single storey dwelling on his lands at Doolahig, Glenbeigh. The permission was subject to seven conditions of which one - Condition 1(1) - is at the core of the present case. That condition was in these terms:-

"Development shall not commence until the public road to the south of the site has been realigned to the satisfaction of the planning authority."

11

Reason: In the interest of traffic safety."

12

7. Condition 7 is also of some relevance. It is in these terms:-

"The developer shall pay to the planning authority a financial contribution as a special contribution under section 48(2)(c) of the Planning and Development Act 2000 in respect of the realignment of the public road to the south of the site. The amount of the contribution shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to the Board for determination. The contribution shall be paid prior to the commencement of the development or in such phased payments as the planning authority may facilitate and shall be updated at the time of the payment in accordance with changes in the Wholesale Price Index - Building and Construction (Capital Goods) published by the Central Statistics Office".

13

Reason: It is considered reasonable that the developer should contribute towards the specific exceptional costs which are incurred by the planning authority which are not covered in the Development Contribution Scheme and which will benefit the proposed development."

14

8. Following the grant of planning permission, the notice party, Mr. Timothy Mulvihill, commenced construction work. He did so following payment of an agreed amount as a special development contribution but prior to any decision of Kerry County Council that realignment of the public road had taken place to its satisfaction. The applicant, Mr. Michael Rowan, commenced proceedings pursuant to s. 160 of the Planning and Development Act 2000, seeking to restrain the carrying out of further works until such time as the conditions of the planning permission, in particular Condition 1(1), had been complied with. In the course of those proceedings the notice party gave an undertaking not to carry out further works on the site until a declaration was obtained from Kerry County Council that it was satisfied with the way in which the public road to the south of the site had been realigned. In order to understand subsequent events, it is necessary by way of background to be aware of the fact that in the course of the consideration of the matter by the Board, Mr. Mulhivill had submitted a letter from one Georóid O'Connor, owner of land to the south of the proposed site and to the east or upper side of the public roadway (L-4022), in which Mr. O'Connor agreed to cede lands to the notice party. The idea was that control of these lands by the notice party would enable him to address issues that would arise in relation to traffic. This issue was addressed in the course of a report prepared for An Bord Pleanála by its inspector, Ms. Fiona Tynan. She recommended the granting of planning permission, but suggested that it should be subject to the following conditions:-

"Prior to the commencement of development, the applicant shall enter into an agreement with the Planning Authority for the transfer of land outlined in yellow on the site location map, scale 1:25,000, submitted to Kerry County Council on 24 th February 2004, and for the payment in full of cost by the applicant for the necessary road realignment works in accordance with the proposals outlined by the applicant in his submission and by...

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3 cases
  • Rowan v Kerry County Council
    • Ireland
    • Supreme Court
    • 18 December 2015
    ...sought to have quashed. 6 The learned trial judge delivered judgment on the 17th February, 2012 ( Rowan v. Kerry County Council (No. 1) [2012] IEHC 65) refusing the relief sought by the appellant herein and subsequently on the 12th March, 2012 ordered the appellant to pay to the respondent ......
  • Rowan v Kerry County Council
    • Ireland
    • Supreme Court
    • 30 January 2018
    ...[together with ancillary relief].' Mr. Rowan was unsuccessful in those proceedings (See Rowan v. Kerry County Council (No. 1) [2012] IEHC 65, a judgment delivered by Birmingham J. on the 17th February, 2012). Following the delivery of judgment, an application was made by Kerry County Counci......
  • Rowan v Kerry County Council and Another
    • Ireland
    • High Court
    • 5 March 2012

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