Swords Cloghran Properties Ltd v Fingal County Council
 IEHC 433
The high court
2005/823JR - Herbert - High - 29/6/2006 - 2006 55 11705 2006 IEHC 433
Planning and environmental - Appeal to An Bord Pleanala - Application for planning permission for same development as development which was subject of undetermined appeal - Statutory interpretation - Planning and Development Act 2000, ss. 34 and 37
judgment of Mr. Justice Herbert delivered on the 29th day of June 2006
On 22nd December, 2004, the applicant herein made an application to the Respondent seeking a grant of planning permission for:-
(a) A 3 to 4 storey, 100 bedroom hotel with a 200 seat restaurant, bar and conference facilities and parking space for 181 motor cars, and,
(b) A 3 level park and ride facility, constructed partly below ground level and rising to 5.3 metres above ground level, with 2,038 parking spaces, a bus and ticket station, a service block and a café, and 24 all-weather "5 aside" playing pitches and a clubhouse on the third level.
On 24th February, 2005, the Respondent made a decision refusing planning permission for this development.
On 21st March, 2005, the Applicant made, what is described as, "a planning application for a revised development", for:-
(a) a similarly described hotel but with 272 rather than 181 car parking spaces, and,
(b) 6 all-weather tennis courts, 5 all-weather "5 aside" playing pitches, 1 all-weather hockey pitch, 58 car parking spaces and 625 square metre sports administration centre, (including a 70 square metre shop).
With this, "revised application" the Applicant furnished an opinion from senior counsel advising that it was not in breach of the provisions of s. 37(5) (a) of the Planning Development Act, 2000.
On 22nd March, 2005, the Applicant lodged an appeal to An Bord Pleanála against the decision of the Respondent of 24th February, 2005, refusing the initial application for planning permission.
On 19th April, 2005, the Respondent determined that it could not consider the "revised application" of 21st March, 2005, because of the appeal lodged with An Bord Pleanála on 22nd March, 2005, against the refusal of the initial planning application and, returned the application and all other information furnished therewith to the Applicant.
On 12th May, 2005, the Applicant returned the application of 21st March, 2005, to the Respondent and insisted that the Respondent make a determination either to grant or to refuse planning permission on or before 2nd June, 2005. On 16th May, 2005, the Respondent again returned the application and all accompanying documents to the Applicant stating that it could not consider the application in the circumstances.
A Memorandum dated 18th April, 2005, from Gina Haye, and Executive Planner to Anne-Marie Farrell, a Senior Executive Officer of the Respondent was exhibited in affidavit evidence. It is entitled, "Compliance with s. 37(5) Planning Development Act, 2000" and inter alia it states as follows:-
"It is considered that the proposal detailed in F05A/0354 is substantially the same as that of F04A/1835, which is currently on appeal to An Bord Pleanála. This relates to the fact that the hotel appears identical to that in the previous application, and that the proposal also makes reference to organised recreational facilities. The only substantial point of difference is that the current application omits the park-n-ride scheme."
As stated previously, it is considered that any development of the nature proposed would impact on the extent to which there is a green belt providing a clear definition between Swords and Dublin City. It is this principle on which the Board's decision will be crucial, and which I consider that we cannot pre-empt by accepting Reg. Ref. F05A/0354, as it is substantially the same development, ie. a hotel and recreational facilities. As such, I would advise that the proposal is the same under the meaning of s. 37(5) of the Planning Development Act, and recommend that the application be returned to the Applicant until such time as a decision of An Bord Pleanála on Reg. Ref F04A/1835 is forthcoming.
Should the Applicant choose, he also has the right to appeal to An Bord Pleanála regarding the Council's decision on this matter."
By Order made 29th July, 2005, the High Court (O'Sullivan, J.) granted leave to the applicant to seek the following principal reliefs inter alia, by way of Judicial Review:
1. An Order of Certiorari, by way of an application for judicial review quashing the decision of the Respondent made on or about 19th April, 2005, that the application for permission submitted by the Applicant under register reference F05A/0354 was an application for the same Development or for development of the same description as an application for permission for development which was the subject of an appeal to An Bord Pleanála (the "decision").
2. A Declaration, by way of an application for judicial review, that the Respondent in purporting to make the Decision acted ultra vires and/or without or in excess of jurisdiction.
3. A Declaration by way of an application for judicial review, that the Decision is null and void and of no legal effect.
4. A Declaration by way of an application for judicial review that at decision by the Respondent to grant permission on foot of the application lodged by the Applicant under register reference F05A/0354 is deemed to have been made on 2nd June, 2005.
5. An Order of Mandamus by way of an application for judicial review, requiring the Respondent to grant permission to the Applicant forthwith in the terms of the application lodged by the Applicant under register reference F05A/0354.
6. In the alternative, if necessary, an injunction (including an interim or interlocutory injunction) requiring the Respondent to grant permission to the Applicant in the terms of the decision made by the Respondent on 2nd June, 2005, to grant permission on foot of the application lodged by the Applicant under register reference F05A/0354.
At the hearing of this application for judicial review Senior Counsel for the Applicant submitted, that the Respondent had erred in law including that the provisions of s. 37(5)(a) of the Planning and Development Act, 2000, applied to the application for planning permission, "made, received and registered on 21st March, 2005" Mr. Macken, Senior Counsel for the Applicant argued that what is prohibited by that subsection is the making of an application for planning permission for the same development or for development of the same description which is the subject of an undetermined appeal to An Bord Pleanála on the date on which the application is made.
Mr. Macken submitted that the development proposed in the planning application made on 21st March, 2005, was intentionally and significantly different in scale, type and composition from that made on 22nd December, 2004. The only element common to both, he said, was the hotel. In the application made on 21st March, 2005, the "Park-n-Ride" facility had been totally omitted, the sports facilities had been substantially re-designed and the floor area of the development had been reduced from 79,125 square metres in the application made on 22nd December, 2004, to 9,846 square metres in the application made on 21st...
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