Urban Entertainment Ltd v Monteco Holdings Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 09 August 2019
• Neutral Citation: [2019] IEHC 620
• Court: High Court
• Docket Number: [2018 No. 5703 P.]
• Date: 09 August 2019

[2019] IEHC 620

THE HIGH COURT

Meenan

[2018 No. 5703 P.]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS, 2000 AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN

URBAN ENTERTAINMENT LIMITED T/A BAGOTS HUTTON

APPLICANT

AND

MONTECO HOLDINGS LIMITED

RESPONDENT

Planning and development – Planning permission – Planning and Development Act 2000 s. 160 – Applicant seeking orders pursuant to s. 160 of the Planning and Development Act 2000 – Whether the applicant identified breaches of the conditions attaching to the planning permission

Facts: The applicant, Urban Entertainment Ltd, sought orders pursuant to s. 160 of the Planning and Development Act 2000. In its notice of motion, the applicant sought the following reliefs: 1) an order prohibiting the respondent, Monteco Holdings Ltd, its servants or agents from carrying out a development at 7 –13 Ormond Quay Upper, Dublin 7 consisting of the demolishing of the existing hotel and the construction of a new part five storey and part 4 storey to other than in accordance with planning permission register reference 2555/16 An Bord Pleanála PL29L.247365; 2) an order prohibiting any further development unless and until condition 1, condition 4, condition 6, condition 11 and condition 12 of the said planning permission have been complied with; 3) an order requiring the respondent to prepare a construction management plan and traffic management plan in accordance with its obligations under the said planning permission and the plan approved in writing by Dublin City Council prior to any further works being carried out and to comply with the conditions therein; and 4) an order requiring the development to be carried out in accordance with the plans and particulars lodged and in particular in a manner that does not impact on the applicant by the emission of dust, noise, hazardous materials and disturbance such as to render continued operation of the adjoining restaurant use impossible.

Held by the High Court (Meenan J) that the applicant had failed to identify any breach of the conditions attaching to the planning permission as would permit the Court to make the orders sought under s. 160 of the 2000 Act.

Meenan J held that the application would be dismissed.

Application dismissed.

Judgment of Mr. Justice Meenan delivered on the 9th day of August, 2019

Introduction

1 In these proceedings the applicant seeks an order pursuant to s. 160 of the Planning and Development Act 2000 (as amended) (“the Act of 2000”). The applicant holds a 25-year lease on a property situated at 5 B/6 Upper Ormond Quay and 6 Little Strand Street, Dublin 7 at Upper Ormond Quay, Dublin 7 and has been operating a restaurant called Bagots Hutton from the said property since June, 2016.

2 The respondent is the owner of property situated at 7 – 13 Upper Ormond Quay, Dublin 7 which abuts onto and is immediately adjacent to the applicant's property. In March, 2016 the respondent applied for planning permission to demolish the existing hotel at 7 – 11 Upper Ormond Quay and the construction of a new part five storey and part four storey hotel on the site. Planning permission was granted, following an appeal, by An Bord Pleanála. This planning permission was subject to a number of conditions, the alleged breach of which are the subject of this application.

3 The respondent commenced demolition works on the site on or about 5th June, 2018. This involved use of heavy machinery to demolish the existing hotel. The applicant claims that the noise, dust and vibrations arising from this work were at such a level that it was forced to cease trading. These events are the subject of other proceedings in which the applicant is claiming damages for, inter alia, nuisance.

4 The owner and occupier of no. 6 Ormond Quay Upper, Dublin 7, Mr. Michael Smith, which adjoins the development site, also sought orders under s. 160 of the Act of 2000 seeking to, inter alia, restrain the development works by reason of alleged breaches of the conditions attaching to the planning permission. These proceedings were heard at the same time as the applicant's proceedings and, in order to make best use of court time, the applicant relied upon certain submissions made in the Smith application. However, since the hearing of both applications, the Smith application (together with an action for damages in nuisance) has been settled and thus are not the subject of this judgment. In considering the issues involved in this application the court will consider various submissions made in the Smith application upon which the applicant in these proceedings relies.

5 At the outset two matters should be clearly stated. Firstly, the Court has been informed, through affidavits of damage done by the construction works in the course of the development to no. 6 Ormond Quay Upper being damage to the party wall and an ingress of water. Further, in an affidavit filed on behalf of the applicant Mr. Brian Deery, director of the applicant company, he set out in detail the extent of the noise, dust and vibrations which led to the closure of his business. In reply numerous affidavits were filed on behalf of the respondent contesting these matters. It is well established that, in the absence of cross-examination, a court cannot resolve such disputes (see Hardiman J. in Boliden Tara Mines v. Cosgrove and Others [2010] IESC 62). Secondly, it does not follow that where there is a complaint of an act of nuisance that there is a corresponding breach of a condition of the planning permission. In these s. 160 proceedings the Court is solely concerned with two issues. Firstly, was there a breach of the conditions that attached to the respondent's planning permission and, secondly, if there was such a breach is the applicant entitled to the orders which it seeks under s. 160 of the Act of 2000?

6 Work on the development at the site ceased in September, 2018.

Reliefs sought by the applicant

7 In its notice of motion, the applicant seeks the following reliefs:-

1. An order prohibiting the respondent, its servants or agents from carrying out a development at 7 – 13 Ormond Quay Upper, Dublin 7 consisting of the demolishing of the existing hotel and the construction of a new part five storey and part 4 storey to other than in accordance with planning permission register reference 2555/16 An Bord Pleanála PL29L.247365.

2. An order prohibiting any further development unless and until condition 1, condition 4, condition 6, condition 11 and condition 12 of the said planning permission have been complied with.

3. An order requiring the respondent to prepare a construction management plan and traffic management plan in accordance with its obligations under the said planning permission and the plan approved in writing by Dublin City Council prior to any further works being carried out and to comply with the conditions therein.

4. An order requiring the development to be carried out in accordance with the plans and particulars lodged and in particular in a manner that does not impact on the applicant by the emission of dust, noise, hazardous materials and disturbance such as to render continued operation of the adjoining restaurant use impossible.

8 At the hearing of the application counsel on behalf of the applicant, Mr. Peter Bland S.C., did not rely on any alleged breach of condition 12. Further, as had been stated before, the plaintiff has initiated other proceedings against the respondent claiming damages for inter alia, nuisance.

Section 160 of the Act of 2000

9 Section 160 of the Act of 2000, provides:-

“160.— (1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity—

(i) in the case of a permission granted under this Act, the permission pertaining to that development or any condition to which the permission in subject …”.

10 Section 160 of the Act of 2000 (and the earlier s. 27 of the Local Government (Planning and Development) Act 1976) have been considered in numerous decisions of the Superior Courts. These authorities clearly set out the nature and extent of the discretion which a court has in either granting or refusing relief under s. 160 where a breach of condition has been established.

Relevant Authorities

11 In reviewing the various authorities, the starting point is the judgment of Henchy J. in Morris v. Garvey [1983] I.R. 319 at p. 323:-

“Section 27, sub-s. 2 is one of the most important and least understood or used provisions of the planning code. The section expressly recognized for the first time that a member of the public (as well as the planning authority), regardless of his not satisfying any of the qualifications based on property or propinquity or the like (which are usually required to justify bringing proceedings), once he discovers that a permitted developer is not complying with, or has not complied with, the conditions of the relevant development permission, may apply in the High Court for an order compelling the developer to do or not to do, or to cease to do, as the case may be, anything which the Court considers necessary to ensure that the development is carried out in conformity with the permission and specifies in the order’.”

The jurisdiction thus vested in...