State (Haverty) v an Bord Pleanála

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Murphy
Judgment Date01 January 1988
Neutral Citation1987 WJSC-HC 1735
Date01 January 1988
Docket Number[1986 No. 462 SS]

1987 WJSC-HC 1735

THE HIGH COURT

STATE SIDE

No. 462 S.S./1986
HAVERTY v. BORD PLEANALA
IN THE MATTER OF AN APPLICATION FOR CERTIORARI

BETWEEN

THE STATE (AT THE PROSECUTION OF PAULAHAVERTY)
PROSECUTRIX

AND

AN BORD PLEANALA
RESPONDENT

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Natural justice - Planning - Objector's rights - The court refused to quash a decision of the Planning Board allowing an appeal, to which the applicant objector was not a party, from a refusal of a planning authority to grant a developer's application (opposed by the objector) for permission to develop certain land - Planning, permission - Article 40 - (1986/462 SS - Murphy J. - 17/7/87) [1988] ILRM 545 [1987] IR 485

|The State (Haverty) v. An Bord Pleanala|

NATURAL JUSTICE

Fair procedures

Planning - Appeal - Parties - Objector's rights - The Court refused to quash on certiorari a decision of the Planning Board allowing an appeal, to which the applicant objector was not a party, from a refusal of a planning authority to grant a developer's application (opposed by the objector) for permission to develop certain land - ~See~ Planning, permission - (1986/462 SS - Murphy J. - 17/7/87) [1988] ILRM 545 [1987] IR 485

|The State (Haverty) v. An Bord Pleanala|

PLANNING

Permission

Refusal - Appeal - Parties - Fair procedures - Objector's rights - A developer applied to a planning authority for permission to develop land which adjoined the estate in which the applicant, and other members of her association, lived - The applicant and her association opposed the developer's application and on 26/9/85 it was refused by the planning authority - The developer appealed to the Planning Board against the refusal and on 19/11/85 he set out detailed grounds of the appeal, but he did not inform the applicant or her association of the appeal or of the grounds thereof - The applicant's association became aware of the appeal and the Planning Board furnished to the association a copy of the grounds of the appeal - A lengthy memorandum, dated 19/12/85, containing the association's views of those grounds was furnished to the Board - On 13/2/86 the developer made additional submissions to the Board in support of the appeal - The developer did not give the applicant or her association a copy of the additional submissions and the applicant did not become aware of them until after 7/5/86, when the Board reversed the decision of the planning authority and granted the developer permission to develop the land - On 2/5/86 the applicant and her association had made further submissions to the Board in ignorance of the submissions made by the developer on 13/2/86 - The applicant obtained a conditional order of certiorari quashing the decision of the Planning Board unless cause were shown to the contrary, and she then applied for an order absolute - Held that the Planning Acts and the Rules of 1977 failed to confer on an objector to a developer's application to a planning authority the right to be heard on an appeal to the Planning Board by the developer - Held, nevertheless, that under the guarantee of fair procedures inherent in Article 40, s.3, of the Constitution, an objector has a right to make his case to a planning authority and, if necessary, to the Planning Board at the hearing of an appeal from the planning authority: ~East Donegal Co-Operative v. The Attorney General~ [1970] IR 370 considered - Held that, in the circumstances, such guarantee of fair procedures did not require that the applicant should have been given an opportunity to controvert the additional submissions made on 13/2/86 by the developer to the Planning Board and that, accordingly, the application for an order of certiorari should be dismissed - Local Government (Planning & Development) Regulations, 1977, arts. 35, 40 - Local Government (Planning & Development) Act, 1983, s.18 - Constitution of Ireland, 1937, Article 40 - (1986/462 SS - Murphy J. - 17/7/87) [1988] ILRM 545 [1987] IR 485

|The State (Haverty) v. An Bord Pleanala|

1

Judgment of Mr. Justice Murphydelivered the 17th day of July 1987.

2

This application raises an important question in relation to Planning Law, namely, whether a person who successfully opposes an application to a Planning Authority for planning permission has the right to be heard on a subsequent appeal to An Bord Pleanala by the unsuccessful applicant. At first sight it would appear from the regulations governing such appeals, that is to say, Part V of the Local Government (Planning and Development) Regulations 1977 (S.I. No. 65 of 1977) that the objector has no such right.

3

The question arises in this way. The Prosecutrix resides on the Sefton Estate which is situate off Rochestown Avenue, Dun Laoghaire. The only access to the estate is from Rochestown Avenue and accordingly there is no traffic running through the estate. The Sefton Residents"Association (of whom the Prosecutrix is Chairwoman) regard the restricted traffic flow as an important amenity of the estate which they are anxious to preserve.

4

Monarch Properties Limited (who were given notice of making of the Conditional Order herein) applied for planning permission to develop Carreglea Park, Dun Laoghaire which is an area immediately adjoining the Sefton Estate. Monarch's plans for the development of the Carreglea Estate envisage a roadway from that estate through the Sefton Estate and thence to Rochestown Avenue. The application by Monarch for planning permission for the proposed development was opposed by the SeftonResidents" Association and on the 26th of September 1985 Dublin County Council refused the application.

5

It appears that on the 22nd October 1985 Monarch appealed the decision of the Planning Authority to An Bord Pleanala. By letter dated the 19th November 1985 they set out "the detailed grounds for the appeal". That letter was not circulated to the SeftonResidents" Association but apparently they became aware of the appeal and Mr. Brian Meehan, a Planning Consultant retained by the Association, applied to the Board for a copy of those grounds and was duly furnished with them. In a lengthy memorandum dated the 19th December 1985 Mr. Meehan commented in detail on what he described as "the brief grounds of appeal" submitted by Monarch and contended that those grounds of appeal "represent a rather simplistic and inaccurate interpretation of the planning situation which pertains to this particular area". By letter dated the 13th February 1986 Monarch made additional submissions in relation to their grounds of appeal. Again, that letter was not circulated by the Board to the Sefton Residents" Association nor indeed did the Association become aware of its contents until after the Order on appeal made by the Board. TheAssociation did, however, receive on the 29th April 1986 a copy of a letter dated the 13th of April 1986 written on behalf of the residents of Ardmore Park, Dun Laoghaire, who were supporting the appeal by Monarch Properties Limited and in reply to the contents of that letter Mr. Meehan made a short, and he says inadequate, response by letter dated the 2nd of April 1986. In an Affidavit sworn by him Mr. Brian Meehan has set out in detail the lengthy submission which he would have made to the additional submissions on behalf of Monarch dated the 13th of February 1986 had he been aware of them and been given an opportunity for replying thereto. On the 7th of May 1986 An Bord Pleanala, reversing the decision of the Planning Authority, granted permission for the development of the Carreglea Estate.

6

On the 30th of June 1986 the Prosecutrix was granted a Conditional Order of Certiorari to quash the said decision of the 7th of May 1986 on the grounds that the Board had purported to adjudicate on the appealwithout:-

7

(a) furnishing all submissions made on behalf of Monarch to the Prosecutrix so as to enable her to make submissions in relation theretoand

8

(b) in purporting to adjudicate on the appeal brought by Monarch without...

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