Spectre (Shelbourne) Ltd v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Ms. Justice Quinn |
| Judgment Date | 23 November 2021 |
| Neutral Citation | [2021] IEHC 745 |
| Court | High Court |
| Docket Number | [2020 176 JR] |
and
and
[2021] IEHC 745
[2020 176 JR]
THE HIGH COURT
JUDICIAL REVIEW
Exempt development – Irrelevant considerations – Irrationality – Applicants seeking an order of certiorari quashing the respondent’s order – Whether the respondent erred in law, took into account irrelevant considerations and/or failed to take into account relevant considerations and/or acted irrationally and/or unreasonably
Facts: The applicant, Spectre (Shelbourne) Ltd, was the owner of a building at 23 Shelbourne Road, Ballsbridge, Dublin 4. On 24th May, 2019 the applicant entered into an agreement with the State of Israel with the intention of granting to it a lease of the fifth floor at 23 Shelbourne Road for use as an embassy office. On 26th June, 2019 the applicant requested and on 23rd July, 2019 the first notice party, Dublin City Council, made a declaration pursuant to s. 5 of the Planning and Development Act 2000 that the proposed use of the 5th floor at 23 Shelbourne Road as an “embassy office” constitutes exempt development. On the 25th July, 2019, the second notice party, Finance Ireland, which was the tenant of the fourth floor of the property, made a second request to the first notice party for a declaration pursuant to s. 5 in respect of the fifth floor. In making this request the second notice party submitted that the works comprised in the change of use from office to embassy office are not exempt development and that a planning permission must be obtained to allow such a change of use. On 21st August, 2019, in response to the second request, the first notice party made a declaration again to the effect that the proposed change of use is exempt development. On 17th September, 2019 Finance Ireland referred the matter to the respondent, An Bord Pleanála, for review pursuant to s. 5(3) of the Act, again submitting that the change of use is non-exempt development. On 6th February, 2020 the respondent made its decision on the s. 5(3) review requested by Finance Ireland, and declared that the change of use of the fifth floor to use as an embassy office is development and not exempted development (the Board Order). The applicant applied to the High Court seeking an order of certiorari quashing the Board Order and a declaration that the respondent erred in law, took into account irrelevant considerations and/or failed to take into account relevant considerations and/or acted irrationally and/or unreasonably.
Held by Quinn J that the respondent erred in taking into account irrelevant considerations, namely precedent decisions which concerned the distinction between embassy use and office use in circumstances where the referral concerned a change of use from office to embassy office. Quinn J held that the respondent acted irrationally and unreasonably in its determination that having regard to the nature of uses carried out in an embassy, which use was not the subject of the referral, the intended change of use to an embassy office did not constitute exempted development. Quinn J held that in making this determination the respondent failed to have regard to the existence of different definitions of land use contained in the first notice party’s Development Plan 2016 – 2022.
Quinn J declared that in making the decision on 6th February 2020 under ref ABP – 305471-19 pursuant to s. 5(3) of the Act, the respondent erred in law, took into account irrelevant considerations and acted irrationally and unreasonably. Quinn J made an order quashing the decision of the respondent.
Application granted.
JUDGMENT of Ms. Justice Quinn delivered on the 23rd day of November, 2021
. The applicant is the owner of a building at 23 Shelbourne Road, Ballsbridge, Dublin 4. On 24 th May, 2019 the applicant entered into an agreement with the State of Israel with the intention of granting to it a lease of the fifth floor at 23 Shelbourne Road for use as an embassy office.
. On 26 th June 2019. the applicant requested and on 23 rd July, 2019 the first notice party Dublin City Council made a declaration pursuant to s.5 of the Planning and Development Act, 2000 that the proposed use of the 5 th floor at 23 Shelbourne Road as an “embassy office” constitutes exempt development (the First Declaration).
. The first notice party issued notice of this declaration on 25 th July, 2019. The notice stated that “proposed change of use from ‘office’ to ‘embassy office’ constitutes exempted development.”
. On the same day 25 th July, 2019, the second notice party Finance Ireland, which was the tenant of the fourth floor of the property, made a second request to the first notice party for a declaration pursuant to s.5 in respect of the fifth floor. In making this request the second notice party submitted that the works comprised in the change of use from office to embassy office are not exempt development and that a planning permission must be obtained to allow such a change of use.
. On 21 st August, 2019, in response to the second request, the first notice party made a declaration again to the effect that the proposed change of use is exempt development. (the Second Declaration). On 17 th September 2019 Finance Ireland referred the matter to the respondent for review pursuant to s. 5(3) of the Act, again submitting that the change of use is non-exempt development, again submitting that the change of use is non-exempt development.
. On 22 nd August 2019, another tenant of the building Transaction Network Services Limited made a third s.5 request regarding the same change of use of the 5 th floor.
. On 18 th September, 2019 the first notice party decided again that the proposed change of use was exempted development (the Third Declaration).
. On 6 th February, 2020 the respondent made its decision on the s.5 (3) review requested by Finance Ireland, and declared that the change of use of the fifth floor to use as an embassy office is development and not exempted development (the Board Order).
. The applicant seeks an order of certiorari quashing the Board Order and a declaration that the respondent erred in law, took into account irrelevant considerations and/ or failed to take into account relevant considerations and/ or acted irrationally and/ or unreasonably.
. The application is made on the following grounds:
-
1. That the request pursuant to s. 5 made by the second notice party and the subsequent referral by it to the respondent was an impermissible collateral challenge to the First Declaration. That the applicant was entitled to rely on the First Declaration to the effect that the proposed embassy office use is exempted development. That a s. 5 declaration which has not been challenged in judicial review proceedings is binding and conclusive and the finding that a particular act of development is exempted development cannot be revisited in subsequent enforcement proceedings.
-
2. That the respondent erred in law in failing to consider whether to exercise its discretionary power under s. 138 of the Act to dismiss the referral in circumstances where the first notice party had previously determined the same question and where no new planning and/ or factual circumstances existed which would justify a new decision by the respondent.
-
3. That the respondent took into account irrelevant considerations and failed to take into account relevant considerations. Reliance is placed by the applicant on consideration by the Board of case law and previous decisions of the Board, which the applicant states related to considerations of the use of premises as an embassy, as distinct from an embassy office, which the applicant states is a use separately and distinctly defined in the statutory development plans of the first notice party. It is submitted that the respondent's Inspector and the Board therefore took into account a different type of use to that which fell for consideration in the referral.
. I have concluded that on the facts of this case the referral by the second notice party did not constitute an impermissible collateral challenge to the First Declaration, and the respondent had power to determine the referral.
. The respondent's decision that the change of use of the fifth floor to use as an embassy office is not exempted development was made with reference to the finding by its Inspector that there is adequate precedent established by the respondent's previous decisions. Those previous decisions concerned the difference between the use of premises as an office and the use of premises as an embassy. Those precedents were not relevant, where the referral concerned change of use from office to embassy office, not to embassy. Use as “embassy office” and “embassy” carry a different definition in the first notice party's statutory Development Plan 2016 – 2022.
. The Board concluded “having regard to case law, and to the nature of uses carried out in an embassy … that an embassy does not constitute an office …” This conclusion was stated to have been informed by considerations relevant to an embassy, including differing levels of pedestrian and vehicular traffic, altered hours of operation, including evening functions and other activity. In circumstances where the referral to it did not concern use as an embassy, the basis for this conclusion was irrational. Accordingly I shall make the order quashing the Board order.
. Section 4.1 of the Planning and Development Act 2000 identifies categories of development which are “exempted developments for the purposes of this Act”.
. Section 4.2 empowers the Minister to make regulations providing for any class of development to be exempted development for the purposes of the Act.
To continue reading
Request your trial