The State (Fitzgerald) v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 01 January 1985
• Neutral Citation: 1984 WJSC-SC 1311
• Court: Supreme Court
• Date: 01 January 1985

1984 WJSC-SC 1311

THE SUPREME COURT

Henchy J.

Griffin J.

Hederman J.

No. 379 S.S./1981

No. 374/1983

State (FITZGERALD) v AN BORD PLEANALA

THE STATE (FITZGERALD)

v.

AN BORD PLEANALA

Subject Headings:

JUDICIAL REVIEW: certiorari

PLANNING: appeal

1 Judgment of Henchy J.delivered the 4 April 1984 [NEM DISS]

2 Dr. Oliver Fitzgerald lives at No. 16 Clyde Road, Ballsbridge, Dublin. Like the adjoining houses on that road, his house is a large one with a garden at the rere which abuts Clyde Lane.

3 In July 1975 a company called Figgis & Co. (Ireland) Ltd. ("the developers") applied to the planning authority, Dublin Corporation, for permission to build six three-storey houses in the garden of No. 15, the house next door, with access from Clyde Lane. They were refused permission. They appealed that decision to An Bord Pleanala ("the Board"). The Board also refused permission.

4 In August 1975 the developers applied afresh to Dublin Corporation, this time for permission to build six two-storey houses in the garden of No. 15. Once again permission was refused, both by Dublin Corporation and, on appeal, by the Board.

5 The developers applied again in July 1978 for development permission. This time they asked for permission to build four houses in the garden of No. 15. They were again refused permission by Dublin Corporation but, on appeal, the Board granted the permission. The Board considered that the proposed development would not be seriously injurious to residential amenity or be otherwise contrary to the proper planning and development of the area.

6 Development on foot of that permission proceeded in 1980 and 1981 on what were referred to as Sites A, B, C and D in the garden of No. 15. Early in 1981, Dr. Fitzgerald noticed that the house then being built on Site D. was not in accordance with the permission granted. In fact the deviation from the permission granted was such that in March 1981 Dublin Corporation brought proceedings in the High Court against the developers under s. 27 of the Local Government (Planning and Development) Act, 1976for an order requiring the unpermitted development to be removed. When those proceedings came on before McMahon J., the developers avoided having such an order made against them by undertaking that no further development would be carried out on Site D withoutplanning permission.

7 The developers then made two further applications for permission as to the type of house they wished to erect on Site D. Both of those applications were turned down, both by Dublin Corporation and, on appeal, by the Board.

8 Finally, the developers applied in March 1982 for permission to retain the...