Satke v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 27 March 2009
• Neutral Citation: [2009] IEHC 230
• Court: High Court
• Date: 27 March 2009

[2009] IEHC 230

THE HIGH COURT

[No. 31 J.R./2007]

Satke v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS INSERTED BY SECTION 13 OF THE STRATEGIC INFRA STRUCTURE ACT 2006

BETWEEN

MICHAEL SATKE

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

NOTICE PARTY

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

PLANNING & DEVEOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)(vi)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)(x)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(A)(xi)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9

O'KEEFFE v BORD PLEANALA 1993 IR 39

GRIANAN AN AILEACH INTERPRETATIVE CENTRE COMPANY LTD v DONEGAL CO COUNCIL (NO 2) 2004 2 IR 625

SHERWIN v BORD PLEANALA UNREP EDWARDS 3.7.2007 2007/56/11918 2007 IEHC 227

CAB v HUNT 2003 2 IR 168

KEEGAN, STATE v STARDUST COMPENSATION TRIBUNAL 1986 IR 642

PLANNING & DEVELOPMENT ACT 2000 S34(10)

DEERLAND CONSTRUCTION v AQUACULTURE LICENCES APPEALS BOARD UNREP KELLY 9.9.2008 2008 IEHC 289

TALBOT & ANOR v BORD PLEANALA & ORS UNREP SUPREME 23.7.2008 2008 IESC 46

1 JUDGMENT of Mr. Justice Hanna delivered on the 27th day of March, 2009

2 The applicant in this case is the owner of lands situated at Audley Cove, Ballydehob in the County of Cork. He is a foreign national, ordinarily resident in Vienna, Austria. Audley Cove is small and secluded, lying to the east of Rossbrin Cove and approximately 7 km. to the southwest of Ballydehob, Co. Cork. The coastal area surrounding the cove is elevated and consists largely of farmland. The cove is accessed by a minor country road, which leads onto a small beach. This beach is used by local residents and holidaymakers alike. There is also, apparently, access to the beach by boat and boats were beached there from time to time.

3 The applicant's lands adjoin the beach. From the ordnance survey maps produced during the course of the hearing, it is apparent that the foreshore used to form part of the landholding currently owned by the applicant, but time, tide and coastal erosion have taken their inevitable toll over the years. Beyond the beach there is a portion of land belonging to the applicant and then what is described as "a lagoon". Without wishing to offend, this is really more of a large pond, filled with what appears, from the photographs, to be brackish water. It does not take much to realise, almost immediately, that to any family with children enjoying the facilities of this beach, this lagoon constitutes a potential hazard.

4 It is not in dispute that the applicant, with a view to minimising liability risk from intruders onto his land, proceeded to erect earthworks on his own land between the lagoon and the beach. This comprised an earth and stone embankment, approximately one metre in height and width, and constructed in soil and rubble stone. It is located to the front of the lagoon and on the edge of the beach. Adjacent to this earthwork is an area which has been quarried for stone. It appears that this was unlawfully extracted some years before, by a party with whom we are not concerned in this application. The embankment broadly, but not entirely, follows the line of a pre-existing bank or wall or barrier of some description - it is not entirely clear what was there - and this pre-dated the new embankment back to at least the mid 1990s.

5 The dispute between the parties is net. The applicant argues that the works in question were an exempted development, within the meaning of Class 4, Part 3 of Schedule 2 to the Planning and Development Regulations 2001 ( S.I. No. 600 of 2001), hereinafter referred to as "the 2001 Regulations". The said Schedule stipulates, inter alia, the following as exempt from the requirement to apply for planning permission:

"Class 4: The construction or erection of any wall or fence, other than a fence of sheet metal, or a wall or fence within or bounding the curtilage of a house."

1. The height of the wall or fence, other than the fence referred to in paragraph 2, shall not exceed 2 metres.

2. The height of any fence for the purpose of deer farming or conservation shall not exceed 3 metres."

6 The respondent, on the other hand, argues that the development did require planning permission and was caught by restrictions pursuant to article 9 of the 2001 Regulations. The material provisions are as follows:

"Article 9: Development to which article 6 relates shall not be exempted development for the purposes of this Act-"

2 (a) if the carrying out of such a development would:

(vi) interfere with the character of a landscape or a view or prospect of special amenity value or special interest, the preservation of which is an objective of a development plan for the area in which the development is proposed or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan.…

(x) consists of the fencing or enclosure of any land habitually open to or used by the public during the 10 years preceding such fencing or enclosure for recreational purposes or as a means of access to any seashore, mountain, lakeshore, riverbank or other place of natural beauty or recreational utility;

(xi) obstruct any public right of way."

7 Matters began to get troublesome in May, 2006. Correspondence was received by Cork County Council from a local Green Party councillor, Ms. Jackie Hudson, and from Ballydehob Community Council, under the auspices of Muintir na Tíre. They complained of loss of amenity, the removal of an area previously used for the parking of cars and the hauling up of boats and the fact that cars could no longer pass. The letter from Muintir na Tíre made representations on behalf of unnamed parties. Councillor Hudson visited the scene herself. In her second letter of May 26th, 2004, she reiterates her concern and that of the other residents with regard to the loss of amenity, particularly with the summer season coming fast upon them.

8 An officer of the planning department from Cork County Council carried out an inspection of the area on the 16 ^th June, 2004, and in a document entitled "Enforcement Report Sheet", he advises that "…the development was unauthorised and that a foreshore licence would be required, as well as planning permission". In fairness, it should be pointed out that later he had something of a change of heart and queried, to some extent, the correctness of his original views. The applicant engaged the services of Messrs. McCutcheon Mulcahy, Chartered Planning Consultants. They took up the cudgels on behalf of the applicant. No foreshore licence was required. they argued. This proposition was accepted, subsequently, by the County Council. This was not an unauthorised development but an exempted one. Without going into any great detail, it would be fair to say that a most impressive case was made out on behalf of the applicant, inter alia, challenging the assertions advanced on behalf of the objectors to the development, if I might so describe them.

9 The respondent received, from Cork County Council, a referral under s. 5 of the Planning and Development Act 2000, seeking its determination as to whether or not the construction of the earth and stone embankment on the applicant's lands constituted an exempted development within the meaning of the said Act. This referral occurred on the 18 ^th January, 2006. On the 17 ^th February, 2006, a comprehensive and detailed submission was made, on behalf of the applicant, by his planning consultant. In her report, dated 20 ^th July, 2006, Jane Dennehy, Senior Planning Inspector, advised that the development was an exempted development, having regard to the relevant provisions of the Planning and Development Act 2000. She expressed the view, inter alia, that the embankment did not come within the scope of article 9(1)(a)(vi), (x) and (xi) of the 2001 Regulations. An Bord Pleanála then issued its finding on the 14 ^th November, 2006. The controversial aspect of that decision is the conclusion by An Bord Pleanála that:-

"The earth and stone embankment comes within the meaning of article 9(1)(a)(vi), (x) and (xi) of the Planning and Development Regulations, as it interferes with the character of the landscape at the end of a public road, accessing the foreshore."

10 The decision was accompanied by a Board direction, signed by Mr. Brian F. Swift. This document is dated the 10 ^th November, 2006, and it states as follows:

"The submission on this file and the Inspector's report were considered at a Board meeting held on the 27 ^th July, 2006.

The Board generally approved of the terms of the attached draft order, subject to the amendments shown in transcript. The Board decided that the development of a low stone fence at Audrey Cove, Ballydehob, Co. Cork is development, and not exempt development.

In disagreeing with the Inspector who concluded that the development is exempted development, the Board noted that, although the current Development Plan does not contain any specific scenery landscape objectives or any named views and prospects subject to specific objectives that the local road network at Rossbrin and Dereenatra is a designed scenic route. The Board concluded that the work would interfere with the character of the landscape. The Board further noted that the land is at the end of a public road, which brings the public to this section of the coast and is a means of access to the seashore."

11 The applicant advanced a number of contentions. Firstly, he submitted that the Board failed to note the main reasons and considerations for its decision. The applicant pointed to the documents and says that he cannot identify from it the...