Sherwin v an Bord Pleanála

JurisdictionIreland
JudgeHumphreys J.
Judgment Date27 January 2023
Neutral Citation[2023] IEHC 26
Year2023
CourtHigh Court
Docket Number[2021 No. 1123 JR]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between
Fionuala Sherwin
Applicant
and
An Bord Pleanála
Respondent

and

CWTC Multi Family ICAV
Notice Party

[2023] IEHC 26

[2021 No. 1123 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning – Development plan – Applicant seeking an order of certiorari quashing the decision of the respondent granting permission to the notice party – Whether the respondent complied with the development plan

Facts: The applicant, Ms Sherwin, applied to the High Court seeking the following reliefs: (1) an order of certiorari by way of application for judicial review quashing the decision of the respondent, An Bord Pleanála, dated the 4th November, 2021, granting permission to the notice party, CWTC Multi Family ICAV, for the construction of 1,614 built-to-rent apartments and associated works on the site of Holy Cross College, Clonliffe Road, Drumcondra, Dublin 3 (ABP-310860-21); (2) such declarations of the legal rights and/or legal position of the applicant and/or persons similarly situated and/or the legal duties and/or legal position of the respondent as the Court considers appropriate; (3) a declaration that special costs rules apply to the proceedings under s. 50B of the Planning and Development Act 2000 (as amended) and/or by way of ss. 3 and 4 of the Environmental (Miscellaneous) Provisions Act 2011; (4) an order pursuant to Order 84 rule 20(8)(b) of the Superior Court Rules staying the development by the notice party, its affiliates, assigns, servants and/or agents of the lands at Holy Cross College, Clonliffe Road, Drumcondra, Dublin 3 pending conclusion of the proceedings; and (5) costs. The first ground on which the conservation officer of Dublin City Council recommended refusal of the application was as follows: “The proposed height, scale and massing of the Block D2 building at 17+1 storeys is excessive in this context and will entirely dominate and seriously injure the architectural setting of the Protected Structures – the former Seminary and the Red House in particular, as well as the surrounding environs of Clonliffe Road and Drumcondra, including adjacent and adjoining Z2 Residential Conservation Areas. It would also be clearly visible in long-range views from other parts of the historic city. Accordingly, Block D2 should be omitted from the proposed development.” The second proposed reason for refusal set out by the city council conservation officer was as follows: “The proposed basement beneath the eastern end of the Formal Green gives rise to serious concerns in relation to the potential serious and injurious impact this would have on the wider setting and curtilages of the protected structures comprising mature trees, the health of the grounds adjacent to this area that are indicated to be retained, and on the long-term performance of this ‘new’ green area above the basement. This proposed basement should be omitted from the proposed development.”

Held by Humphreys J that before any planning judgements, one must first comply with all legal requirements; those include not just compliance with the development plan (save where material contravention can be expressly justified), but also compliance with the statutory system of protection of “protected structures”, particularly s. 57(10) of the 2000 Act. Humphreys J held that the board did not validly surmount either requirement – it did not engage with the heritage material contraventions in this respect at all, or with s. 57(10) at all. Humphreys J held that the applicant also succeeded in relation to the city council’s second objection, both on the basis of lack of reasoning for disagreeing with the views of the city council (being virtually by definition a major issue for which main reasons are required) and also by reason of a further unacknowledged material contravention of para. 16.10.15 of the development plan on this aspect.

Humphreys J held that the order would be one of certiorari removing for the purpose of being quashed the decision of the respondent of 4th November, 2021, granting permission for the construction of 1,614 built-to-rent apartments and associated works on the site of Holy Cross College, Clonliffe Road, Drumcondra, Dublin 3 (ABP-310860-21).

Application granted.

JUDGMENT of Humphreys J. delivered on the 27 th day of January, 2023

1

. While ostensibly about technical issues under the Planning and Development Act 2000, the present case, concerning the fate of the former Dublin Diocesan Seminary at Clonliffe, is something of a sociological window onto the rise and fall of the Catholic Church in Ireland.

2

. The association between the Clonliffe area and ecclesiastical institutions is very ancient. Going back to before the conquest, the area was linked to St. Mary's Abbey, legendarily said to have been founded by Clonliffe residents in the reign of Maelseachlainn (980–1022) (see H.J. Lawlor, ‘The Foundation of St. Mary's Abbey, Dublin’ (1926) 16 J.R.S.A.I. 22).

3

. The Grange of Clonliffe appears in ecclesiastical taxation records by 1304 (see F. Erlington Ball, A History of the County Dublin: The People Parishes Antiquities from the Earliest Times to the Eighteenth Century, Vol. 6 (Dublin, University Press, 1920)). The St. Mary's Abbey lands at Clonliffe passed to secular ownership in 1539 with the dissolution of the monasteries, and ultimately into the possession of Viscount Moore. In 1710 Tristram Fortick, the founder of Fortick's Alms House, obtained a lease of the great house of the Grange of Clonliffe from Viscount Moore. In 1728–9 the Clonliffe lands were sold by the Moore family to Sir Edward Lovett Pearce (a familiar figure from Hellfire Massy Residents Association v. An Bord Pleanála [2021] IEHC 424, ( [2021] 7 JIC 0201 Unreported, High Court, 2nd July, 2021) (noted Áine Ryall (2021) (3) I.P.E.L.J. 107) para. 1) in trust for Brabazon Ponsonby (Viscount Duncannon) and Luke Gardiner (see Melanie Hayes, Anglo Irish Architectural Exchange: Patrons, Practitioners and Pieds-à-terre (2015, PhD thesis, Dublin University)). Gardiner acquired the full interest the following year.

4

. While the National Inventory of Architectural Heritage shows the house as dating from 1750 to 1770, Roque's map of 1756 shows the house (known as “the Red House”) as being in place at that time, possibly in its present construction, as well as the lands around it, which are marked as Fortick's Grove. Around 1790, the house and lands were leased from Luke Gardiner II (later Viscount Mountjoy) by the impresario Frederick (“Buck”) Jones. Jones ran the Crow Street Theatre (in Temple Bar possibly on a site later occupied by Apothecaries' Hall, now Urban Outfitters), but died penniless in 1834. The house was later leased to Professor Gregor von Feinaigle of Baden as a preparatory school. Crucially for present purposes, it was acquired by Archbishop Paul Cullen, Catholic Archbishop of Dublin, in 1858.

5

. Cullen immediately founded a seminary on the site, and the lands with which we are now concerned were originally focused around the Red House building in which the seminary began in 1859. A foundation stone for a new main college building was laid in 1860. The building was designed by the Irish architect John Bourke (who also designed the Mater Hospital) and the main block was constructed in 1861 (a date of 1863 is also referred to in the papers).

6

. The applicant in oral submissions described the college as of “enormous historical significance” and says that its establishment was “part of the transformation of the emerging people”. Following on from Catholic Emancipation in 1829, the establishment of this seminary was part of a series of changes whereby, as put by the applicant, the adherence of the majority religion would now have “religious leaders authentically educated in institutions of the church”. The applicant describes the site in question as “a place of enormous significance in the transformation of the people in their rights, in the acknowledgment of their religion”. The applicant submitted that Cullen went to enormous trouble to ensure that the church later to be built on the site was “of a type that would acknowledge that great transformation”, and that is reflected in its design.

7

. The site of the adjoining Archbishop's Palace was acquired also in 1861 and, as part of the International Exhibition of Arts and Manufactures held in Iveagh Gardens in 1865, a statue of Pius IX was brought to Dublin and later acquired by Cullen for display in the seminary. In 1866, Cullen was raised to the cardinalate, the first Irish person ever to be so honoured.

8

. Cullen laid the foundation stone for the church on the Clonliffe campus in 1873. The church was designed by the Irish architect J.J. McCarthy who was referred to as “Ireland's Pugin” (see the report on the removal of ecclesiastical objects from the site). Indeed, McCarthy finished cathedrals in Enniscorthy and Killarney from designs by Pugin, and also completed St. Patrick's Cathedral in Armagh. McCarthy was professor of architecture at the Catholic University of Ireland (subsequently incorporated into University College Dublin), and designed the Maynooth College chapel, and the college and church at All Hallows, Drumcondra. The desire for a grand design for the church was realised by modelling the exterior on the Santa Francesca Romana in the Roman Forum, and the interior on that of the Sant'Agata dei Goti church, which is attached to the Irish College in Rome and was the location of the interment of Daniel O'Connell's heart (though unfortunately that was lost during later renovations).

9

. A south link building was designed on the site in 1876. On Cullen's death in 1878, he was interred in a vault underneath the chancel of the church. The...

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