Schwestermann v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: O'Hanlon J.,
• Judgment Date: 01 January 1995
• Neutral Citation: 1995 WJSC-HC 1591
• Docket Number: 3 JR/1994,[1994 No. 3 J.R.]
• Court: High Court
• Date: 01 January 1995

SCHWESTERMANN v. BORD PLEANALA

BETWEEN/

FERNAND SCHWESTERMANN AND JANETTE SCHWESTERMANN

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENT

AND

GLENMOY LIMITED GLENMOY DEVELOPMENTS LIMITED AND THE COUNTY COUNCIL OF THE COUNTY OF KILDARE

NOTICE PARTIES

1995 WJSC-HC 1591

3 JR/1994

THE HIGH COURT

Synopsis:

PLANNING

Permission

Refusal - Appeal - Decision - Validity - Challenge - Grounds - Error in applicant's name - Sufficiency of interest in land - Effect of existing planning permission - Local Government (Planning and Development) Act, 1963, s. 8 - Local Government (Planning and Development) Act, 1976, s. 14 - (1994/3 JR - O'Hanlon J. - 27/10/94)- [1994] 3 IR 437 - [1995] 1 ILRM 269

|Schwestermann v. An Bord Pleanala|

Citations:

FRESCATI ESTATES LTD V WALKER 1975 IR 177

TOFT, STATE V GALWAY CORPORATION 1981 ILRM 439

NCE LTD, STATE V DUBLIN CO COUNCIL 1970 ILRM 249

MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

MCDONAGH & SONS LTD V GALWAY CORPORATION UNREP SUPREME 7.5.93 1993/8/ 2422

KEEGAN, STATE V STARDUST 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

GRANGE DEVELOPMENTS V DUBLIN CO COUNCIL UNREP MURPHY 2.12.88 1989/2/ 313

MCINERNEY & CO LTD, STATE V DUBLIN CO COUNCIL 1985 IR 1

ALF-A-BET PROMOTIONS LTD, STATE V BUNDORAN UDC 112 ILTR 9

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S8

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1993

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(8)

1 Judgment delivered by O'Hanlon J., the 27th day of October, 1994

2 In these Judicial Review proceedings the Applicants seek an Order of Certiorari for the purpose of quashing a decision of An Bord Pleanala dated the 24th day of November, 1993, whereby the Board decided pursuant to the Local Government (Planning and Development) Acts, 1963to 1993, to grant permission for development comprising the conversion, extension and alteration of the existing Dowdstown Stud Stable Complex at Straffan Road, Maynooth, Co. Kildare, to a 19-bedroom hotel with restaurant/bar and function facilities.

3 The decision was made in favour of Glenmoy Limited, one of the Notice Parties in the present proceedings, on an appeal brought by the said Glenmoy Limited against the decision made on the 29th day of June, 1993, by the Council of the County of Kildare, refusing the application which had been made for the proposed development, which had at all relevant stages been strongly opposed by the Applicants in the present proceedings.

4 The Applicants, being dissatisfied with the said decision of An Bord Pleanala, now seek to quash the said decision on a number of grounds, which may be summarised as follows:-

5 1. They rely on the fact that the original application was brought, and the appeal to An Bord Pleanala was processed, in the name of Glenmoy Limited, whose interest in the site was given as "Freehold Owner", whereas the freehold owner at all relevant times was not Glenmoy Limited but Glenmoy Developments Limited, the second-named Notice Party herein.

6 2. The lands the subject of the application, together with the property known as Dowdstown House and the lands appurtenant thereto now occupied by the Applicants, originally formed a single holding in respect of which an earlier Planning Permission was granted by Kildare County Council on the 22nd August, 1990, and that Planning Permission is stated to be of full force and effect.

7 3. The Applicants claim that the lands the subject of the present proceedings are zoned for agricultural use in the County Development Plan and that no sufficient grounds exist to warrant a departure from the said Development Plan.

8 4. The Applicants contend that the appeal before An Bord Pleanala was contested by them on several grounds, including the grounds relied upon by Kildare County Council in refusing the original application, and that the decision of An Bord Pleanala to allow the application for development permission notwithstanding all the grounds of objection thus raised by the Applicants was irrational, unsupported by evidence, and so unreasonable and unsustainable that a proper case arises for invoking the jurisdiction of the High Court to quash the said decision.

9 The factual situation regarding the party named as Applicant when the application for Planning Permission was submitted to Kildare County Council, and later came to be considered by An Bord Pleanala, has been elucidated in the affidavits which have been sworn on behalf of the first and second-named Notice Parties in the present proceedings.

10 It is correct to say that the application was processed before the County Council and An Bord Pleanala in the name of "Glenmoy Limited" and that that Company was described in the relevant documents as "Freehold Owner" in relation to the lands the subject of the application.

11 In fact the freehold owner at all relevant times was not Glenmoy Limited but Glenmoy Developments Limited. The first affidavit of James Hoare, sworn on the 21st January, 1994, contains averments that he is a director and shareholder of both companies, and that the shares in both companies are held by him and by his wife Gabrielle Hoare; that Glenmoy Developments Limited was incorporated on the 15th August, 1985, and the shareholding is divided as to 51 shares held by James Hoare and 49 by his wife, Gabrielle Hoare. He states that that Company has carried on a number of developments and owns land, including the land the subject of the present Planning Application.

12 Glenmoy Limited was incorporated on the 16th June, 1992, for the purpose of entrusting to it the management of the hotel the subject-matter of the proposed development, and the intention was that the actual work of development would be carried out by Glenmoy Developments Limited. The necessary resolutions were passed on the 17th June, 1992, for the transfer of the shares in Glenmoy Limited to Mr. and Mrs. Hoare, and appointing them sole directors of the said and appointing Gabrielle Hoare as secretary of the Company.

13 Instructions were given by Mr. Hoare, representing the companies and owner of the controlling interest therein, to Solicitors and Architects to prepare and submit the necessary application for Planning Permission for the hotel development to Kildare County Council but as a result of an oversight somewhere along the line the name of Glenmoy Limited was given in the form of application as freehold owner of the lands and Applicant, whereas the intention was that the application should be made in the name of Glenmoy Developments limited. James Hoare, however, was the signatory as Applicant, although the name and address of Applicant were given as Glenmoy Limited of Dowdstown, Maynooth, Co. Kildare. The date of the Planning Application was the 2nd May, 1993. The registered office of both companies, Glenmoy Limited and Glenmoy Developments Limited, is located at Wilton Park House, Wilton Place, Dublin 2.

14 The Applicants for relief in the present proceedings claim that the mistake which was made has the effect of invalidating the decision of An Bord Pleanala on the basis that -

15 (a) neither Glenmoy Limited nor James Hoare had any interest in the lands at any relevant time;

16 (b) no evidence was adduced to show that Glenmoy Developments Limited had consented to the application or to show that James Hoare or Glenmoy Limited were entitled to any interest or estate in the lands such as would entitle them or either of them to develop the lands should such permission be granted;

17 (c) the application was improperly brought in that insufficient information was given to enable the Applicants or any other person to ascertain whether James Hoare or Glenmoy Limited had any interest in the land or the identity, address or registered office of the actual owner of the lands.

18 By way of response to these submissions the Respondent (An Bord Pleanala) and the Notice Parties other than Kildare County Council have filed Statements of their Grounds of Opposition in which they contend that the mistake which was made did not invalidate the application for Planning Permission or the grant thereof, having regard to the circumstance that, (a) the intention at all stages was to bring the application in the name of Glenmoy Developments Limited, the freehold owner of the lands, and it was only through inadvertence that Glenmoy Limited were named as Applicant and as freehold owner in the notice of application; (b) in any event, James Hoare, who signed as Applicant, was at all relevant times the owner of the controlling interest in both companies - Glenmoy Limited and Glenmoy Developments Limited - and a person having sufficient interest in the lands to entitle him to bring the application in his own name if he thought fit; (c) Glenmoy Limited was incorporated at the time of the application, and although not the freehold owner of the lands as suggested by the form of application, had been incorporated for the purpose of managing the property if and when permission for the development was obtained, and in such capacity had a sufficient interest in the lands to entitle it to make the application in its own name.

19 Reference was made to the decision of the Supreme Court in Frescati Estates v Walker, (1975) IR 177, in which Henchy J. commented as follows in relation to the nature of the interest in lands which would entitle an applicant...