State (F.P.H. Properties S.A.) v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 14 February 1986
• Neutral Citation: 1986 WJSC-HC 659
• Date: 14 February 1986
• Court: High Court
• Docket Number: No. 448 S.S./1985

1986 WJSC-HC 659

THE HIGH COURT

No. 448 S.S./1985

FPH PROPERTIES SA v. BORD PLEANALA

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACTS 1963TO 1983

THE STATE (AT THE PROSECUTION OF F.P.H. PROPERTIESS.A.)

PROSECUTORS

AND

AN BORD PLEANALA

RESPONDENTS

Citations:

DUN LAOGHAIRE CORPORATION V FRESCATI ESTATES LTD 1982 ILRM 469

HOUSING ACT 1969 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22(2)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHED 3 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S43(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963–1983

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977

TOWN & COUNTRY PLANNING ACT 1947 S14(2)(a)

TOWN & COUNTRY PLANNING ACT 1971 S30

Synopsis:

PLANNING

Permission

Condition - Validity - Permission granted for residential development of land - Adjoining land also under control of developer - Adjoining land having demesne mansion of architectural, historic and artistic interest - Condition that developer undertake restoration of mansion - Statutory power to impose condition for regulating development or use of adjoining land if expedient in connection with authorised development - Held that restoration of mansion would be an amenity affecting authorised development - Held that condition validly imposed under s.26(2)(a) of Local Government (Planning & Development) Act, 1963 - (1985/448 SS - Lynch J. - 14/2/86)

|The State (F.P.H. Properties) v. An Bord Pleanala|

1 Judgment of Mr. Justice Lynchdelivered the 14th day of February1986.

2 This is an application to make absolute a Conditional Order of Certiorari made on the 31st July 1985. The Conditional Order was made on the application of the Prosecutors against the Respondents in respect of certain conditions attached to two planning permissions granted by the Respondents to the Prosecutors on the 28th day of June 1985.

3 The Prosecutors are property developers. In the year 1984 they made four applications for planning permission to develop certain lands at Furry Park House, Howth Road, Dublin. Two of these applications relate to lands adjoining Furry Park House but not including the site of the house itself and were for residential development only and these applications bore register numbers 731/84 and 874/84 respectively. The third application for planning permission related to the same lands for residential purposestogether with the site of Furry Park House for commercial purposes involving the demolition of Furry Park House and bore register number 732/84. The fourth application was for commercial development of the site of Furry Park House alone which of course also involved the demolition of the house and this application bore register number 730/84. The Prosecutors had obtained permission under Section 4 of the Housing Act 1969from Dublin Corporation on the 30th of March 1977 to demolish Furry Park House subject to the conditions set forth in the said permission.

4 The last two applications for planning permission were refused by Dublin Corporation and by the Respondents and do not concern this casefurther.

5 Dublin Corporation decided to grant planning permission in respect of the two applications for housing development only not involving the site or demolition of Furry Park House. These decisions to grant planning permissions were however subject to (inter alia) condition number 15 in each case as follows:-

"15. The house known as Furry Park House, number 241 Howth Road, excluding the adjoining cottage and outhouses, shall not be demolished as proposed. Notwithstanding the Local Government (Planning and Development) Regulations 1977 no internal or external structural alterations shall be carried out without a prior grant of planning permission. The use of Furry Park House shall remain residential, unless a subsequent grant of permission is obtained for a change ofuse."

6 Appeals were brought by third parties (in particular a localresidents association) against the decision of Dublin Corporation to grant these two planning permissions and by the Prosecutors against the imposition of the foregoing condition. The Respondents upheld the decisions of Dublin Corporation in relation to these two applications for housing development, but the Respondents substituted for condition 15 above condition number 1 in their decision in the followingterms:-

7 a "1 (a) The entire house known as Furry Park House, number 241 Howth Road or alternatively the early eighteenth century core of the house, excluding in either event the adjoining cottage and outhouses, shall be retained and restored and the internal elements in the house comprising the panelling to the hall, staircase, landings and the room at ground floor level as well as the two early eighteenth century fire surrounds along with all original architraves, cornices etc, shall be preserved conserved or replaced in facsimile as their conditionwarrants.

8 (b) Work to the house as required under (a) above shall be completed prior to the occupation of more than thirty of the proposed flats in accordance with details to be agreed with the planning authority or failing that agreement as determined by An Bord Pleanala.

9 (c) Following completion of the said work no internal or external structural alterations shall be carried out to the house without a prior grant of planningpermission and

10 (d) The house shall remain in residential use unless a subsequent grant of planning permission is obtained for a change of use.

11 Reason: To safeguard Furry Park House which is of architectural historic and artistic interest."

12 The Prosecutors applied for and obtained the Conditional Order of Certiorari in relation to the above condition number 1 on thegrounds:-

13 2 "(1) That the said conditions are ultra vires the powers of An Bord Pleanala:

14 (2) That the said conditions are ambiguous and uncertain:

15 (3) That the said conditions do not relate to the sought or permitted development: and

16 (4) That the said conditions are unreasonable."

17 Cause was shown by the Respondents by an affidavit of their secretary sworn on the 3rd day of September 1985 following which the Prosecutors moved to have the Conditional Order made absolute and the matter came on for hearing before me on the 18th and 25th of November 1985 following which I reserved my Judgment.

18 I shall deal first with ground number 1 on foot of which the Conditional Order of Certiorari was made. The Prosecutors submitted that Section 22 (2) (a) of the Local Government (Planning and Development) Act 1963did not entitle the Respondents to require the Prosecutors to do anything positive such as carrying outdevelopment works and that there was no power in the Respondents to impose a financial burden relating to lands not within the area fordevelopment.

19 The Respondents contended that Section 26 (2) (a) gave them such power. Paragraph (a) roads as follows:-

"(a) Conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the...