State (Abenglen Properties) v Corporation of Dublin

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,Walsh J.,Henchy J.,GRIFFIN J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1982 WJSC-SC 1
• Court: Supreme Court
• Docket Number: [S.C. No. 102 of 1981]
• Date: 01 January 1984

STATE (Abenglen properties Ltd.) v. DUBLIN CORPORATION

THE STATE (ABENGLEN PROPERTIES LIMITED)

Respondents

and

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN ANDBURGESSES OF DUBLIN

Appellants

1982 WJSC-SC 1

O'Higgins C.J.

Walsh J.

Henchy J.

Griffin J.

Hederman J.

66 s.s/1981

102/1981

THE SUPREME COURT

Subject Headings:

STATE SIDE: certiorari

1 JUDGMENT delivered the 5th day of February 1982by O'HIGGINS C.J.

2 This appeal has been brought against the granting by Mr. Justice D'Arcy in the High Court of an Absolute Order of Certiorari, at the instance of the Respondents, quashing a planning Decision made by the Appellants, as the planning authority for the City of Dublin, on the 5th December 1980. The site which was the subject of this Decision is described as No. 8-34 Percy Place and is situate to the south of the Grand Canal, near Haddington Road in the City of Dublin. The relevant facts are asfollows.

3 As the intending developers of the site in question the Respondents, through their architect, Mr. Brendan O'Connor, applied to the Appellants for outline planning permission. The application was made on the 6thOctober1980 on the appropriate form and was accompanied by relevant maps and plans. Planning permission was sought for a development some five storeys high, containing both office and residential accommodation. The office accommodation was to consist of four storeys over an open floor and the residential accommodation was to be three storeys high. The site area was 24,000 square feet and the floor area of the proposed development came to 60,000 square feet.

4 On the date of this application the City of Dublin Development Plan 1971 was in operation. This plan had been adopted by the Appellants pursuant to the provisions of the Local Government (Planning and Development) Act 1973 and as such it represented the policy and objectives of the Appellants as a planning authority. In particular this plan provided for the zoning of different areas of the City according to the uses for which development in those areas would be permitted. It also provided for the adoption of standards to control the density of development in the different areas. These standards weretwo in number and were termed Plot Ratio and Site Coverage Index. The former of these standards related to the ratio borne by the gross floor area of the proposed development to the gross site area and the latter to that which the covered area bore to the site area.

5 Under this plan this Percy Place site was in Zone 4. This meant that it could be developed for a variety of purposes which included both office and residential and also general business user as therein indicated. It was given a plot ratio of 2.5 of which not more than 2.0 could be for office use. It was given a site coverage maximum of .80. There were other sites south of the Grand Canal which were placed in Zone 3. These could be developed for office and residential use but not for general business purposes. These were given a plot ratio of 1.0.

6 The position was that under the 1971 Plan only those areas south of the Grand Canal which were in Zone 4 and which accordingly could be developed for general businesspurposes in addition to office and residential purposes had a plot ratio higher than 1.0. All other areas so situate south of the Grand Canal which were indicated for residential and office use primarily had a plot ratio of 1.0.

7 When the Respondents' application for planning permission was submitted the Appellants were about to adopt a new development plan. This was the City of Dublin Development Plan 1980 which was in fact adopted and which came into operation on the 20th October 1980. This new Plan provided for a complete re-zoning of the City and applied new standards in the development control in different zones. Amongst these new standards was the application of a limit of 40 per cent of floor space for office development in certain areas south of the Liffey. These areas were described and set out in paragraph 3.4.20 on page 93 of the new Plan. All these areas were in a new zone termed B1, in which this site in Percy Place now found itself. It was immediately appreciated by Mr. O'Connor that if the standards set out in this paragraphof the new Plan were applied to the development of the site in question the outline permission sought could not be granted. Mr. O'Connor, therefore, urged that the application he had submitted should be dealt with and processed under the 1971 Plan as this was the Plan in operation when the application was made. However, when this point of view was not accepted by the Appellants' planning officers Mr. O'Connor contended that even under the new Plan the 40 per cent maximum on office floor space was not intended to be applied to the site in question by paragraph 3.40.20. He so contended for the following reasons. Paragraph 3.40.20 described five different areas or groups of areas. Only one of these, group (v), could apply to the Percy Place site. This group was described as "those areas zoned B1 to the south of the Grand Canal which are subject to a maximum plot ratio of 1.0??#x2032??. Mr. O'Connor contended that this was intended to apply only to those areas south of the Grand Canal which had formerly (i.e. under the 1971 Plan) been zoned for office and residential use primarily and which had a plot ratioof 1.0. It did not apply, he submitted, and was not intended to apply to the site in question in Percy Place which had been zoned for general business use with a plot ratio of 2.5. Mr. O'Connor's arguments did not convince the Appellants' planning officers. This is made clear by the terms of the Decision conveying outline planning permission which the Appellants made on the 5th December 1980. This Decision was to grant outline planning permission to the Respondents in respect of the Percy Place site for a development described as "Erect four-storey over open ground floor office block with two three-storey flat blocks each, each with six flats at 8–34 Percy Place, Dublin 2??#x2032??. This permission was made subject to three conditions only one of which is meterial. This is condition No. 2 which was in the following terms:

"The indicated central block for office use to be reduced to not more than three storeys in overall height, i.e. by omission of top two storeys; each of the two end residential blocks to be at least doubled in width and floor area, with consequent reduction in length of proposed central office block; the above modifications to the outline plans submitted to result in not more than40 per cent of the overall floor area being in office use."

8 The Respondents were dissatisfied with the permission conveyed by this decision. It fell far short of authorising the kind of development which they had proposed. Being of the view that the decision was not properly made by the Appellants and was therefore a nullity the Respondents sought to have the same quashed in certiorari proceedings in the High Court. Accordingly, on the 3rd February 1981 they obtained a Conditional Order of Certiorari on the following grounds:

9 2 "1. The notice of decision to grant outline planning permission does not constitute an adjudication of or notice of an adjudication to show that the Corporation adjudicated on the Prosecutors' Planning Application on the 6th day of October 1980 and is ultra vires and void.

10 2. The notice expresses notice of an adjudication of a development so radically modified as to be of a wholly different character from the development for which the Prosecutor applied for permission and is ultra vires and void.

11 3. The notice of decision and the adjudication on which it purports to be based do not comply with the provisions of Section 26 of the LocalGovernment(Planning and Development Act) 1963as amended and Regulation 27 of the Local Government (Planning and Development) Regulations S.I. 65/1977 and the same are ultra vires, unlawful and void.

12 4. In making the said planning determination the subject of the said notice the Respondents proceeded on an erroneous understanding and/or interpretation of the provisions of the Dublin City Development Plan 1971 or alternatively of the said Plan as varied by the Dublin City Development Plan 1980 and the said determination is bad in law, ultra vires and void.

13 5. In basing the said planning determination upon a plot ratio of 2.0 to 1.0 and business user limitation of not more than 40 per cent the Respondents proceeded on an erroneous basis and the said determination is erroneous, ultra vires and void.

14 6. The reasons set forth in the schedule of reasons for the conditions to which the said Decision is subject are not valid or capable of supporting the said conditions or decision."

15 Cause having been shown by the Appellants the matter came before Mr. Justice D'Arcy on the hearing of an application to have the Conditional Order made absolute. At this hearing it was in the first instance contended on behalf of the Appellants that the remedy of certiorari did not lie in the circumstances of this case as the Respondents had available to them an alternative remedy inthe nature of an appeal under the Planning Acts, by means of which all their legitimate complaints and grievances could have been rectified. Subject to this primary submission the Appellants contended that the Conditional Order ought not to be made absolute on any of the grounds relied upon and that the Decision was made competently and properly by them as a planning authority. In his Judgement delivered on the 2nd April 1981, Mr. Justice D'Arcy held against the Appellants on their primary submission. On the question whether the Conditional Order ought to be made absolute on any of the grounds upon which it was granted the learned Judge held with the Appellants in relation to Grounds 1,2,3 and 6. However, he came to the conclusion that the Appellants as...