State (Trimbole) s) v an Bord Pleanála

• Jurisdiction: Ireland
• Judgment Date: 11 July 1985
• Date: 11 July 1985
• Docket Number: [1985 No. 178 SS]
• Court: High Court

The State (Tern Houses) v. An Bord Pleanála

The State (at the Prosecution of Tern Houses (Brennanstown) Ltd.)

and

An Bord Pleanála

[1985 No. 178 SS]

High Court

Local government - Planning - Planning authority - Jurisdiction - Outline permission - Subsequent application for approval - Consideration of application - Decision to be based on proper planning of area - Whether planning authority restricted by terms of outline permission - Whether planning authority empowered to impose condition absent from outline permission - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26.

Dublin County Council had granted the prosecutor outline planning permission for a housing development in Lucan, County Dublin, subject to certain conditions, which required the development not to be commenced until adequate sewerage should have been made available. The outline permission contained no conditions relating to the construction of access roads to and within the site of the development.

Subsequent applications to the County Council both for planning approval in respect of the projected development and for full planning permission therefor, were granted by the County Council, to take effect only after certain road works to and within the boundaries of the development should have been constructed. The prosecutor was also to be required to pay a fixed sum per house erected towards the construction of those road works. The respondent Board, on appeal by the prosecutor, had confirmed the grant of full planning permission, subject substantially to the conditions imposed by the County Council, but had refused approval, alleging that the projected development would be premature, and would create a serious traffic hazard on the road then fronting its site.

The prosecutor applied for and obtained a conditional order of certiorari to quash the two orders made by the respondent refusing approval, on the ground that the outline planning permission on which the applications for approval had been based had not been circumscribed by any conditions relating to public roads.

Held by Barron J., in allowing the cause shown and discharging the conditional order, 1, that the grant of outline planning permission in respect of a particular development implies merely a decision by the planning authority that the projected development is not inconsistent in principle with the proper planning of the area, which must be the main consideration of the authority.

2. That the authority is not precluded from granting approval for the development subject to conditions arising which had not been envisaged at the time of the granting of the outline permission.

The State (Pine Valley) v. Dublin County Council [1984] I.R. 407 and The State (Kenny) v.An Bord Pleanála (Unreported, High Court, Carroll J., 23rd February, 1984; Supreme Court, 20th December, 1984) considered.

Cases mentioned in this report:—

The State (Pine Valley) v. Dublin County Council [1984] I.R. 407; [1982] I.L.R.M. 169.

The State (Kenny) v. An Bord Pleanála (Unreported, High Court, Carroll J., 23rd February, 1984; Supreme Court, 20th December, 1984).

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590.

The State (Genport Ltd.) v. An Bord Pleanála [1983] I.L.R.M. 12.

Certiorari.

On the 25th March, 1985, the prosecutor, Tern Houses (Brennanstown) Ltd., obtained in the High Court (Hamilton P.) a conditional order of certiorari to quash two decisions given on the 5th March, 1985, by the respondent Board disallowing appeals made to it by the prosecutor in respect of two separate applications for planning approval for the same residential development and ancillary site works on the same site at Ballyowen, County Dublin, which had been made to Dublin County Council on the 27th January, 1982 and on the 25th August, 1982.

The applications for approval were both refused by the respondent Board on the ground that the proposed development would be premature, and would result in the creation of a serious traffic hazard on the roads at present fronting the site.

The prosecutor had lodged with the County Council, simultaneously with each application for approval, an application for full planning permission relating to the development; in each case full planning permission was granted by the County Council, but subject to a number of conditions, including two which required development on foot of the permission not to be commenced until one totally new distributor road should have been constructed, and an existing road extended, so as fully to service the projected housing development, and one which required the prosecutors to make a financial contribution of a fixed sum per house erected on the development towards the provision of a satisfactory road network to and within the development.

All four applications were made on foot of an outline planning permission which had been granted eventually in January, 1977, by the Minister for Local Government, on appeal from a decision of Dublin County Council refusing such permission pursuant to s. 26, sub-s. 5 (a), of the Local Government (Planning and Development) Act, 1963, which was later extended by the County Council so as to expire on the 19th October, 1985.

The...