Urrinbridge Ltd v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 28 October 2011
• Neutral Citation: [2011] IEHC 400
• Court: High Court
• Date: 28 October 2011

[2011] IEHC 400

THE HIGH COURT

[No. 248 J.R./2011]

Urrinbridge Ltd v Bord Pleanála

P 20

JUDICIAL REVIEW

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 - 2010 AND IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED, AND IN THE MATTER OF AN APPLICATION

BETWEEN

URRINBRIDGE LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

WEXFORD COUNTY COUNCIL AND AOIBHINN O'CONNOR

NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S140

PLANNING & DEVELOPMENT ACT 2000 S37(1)(B)

PLANNING & DEVELOPMENT ACT 2000 S140(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S37(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S50(7)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

DODD STATUTORY INTERPRETATION IN IRELAND 2008 CH 2.43

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S5(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S140(1)

PLANNING & DEVELOPMENT ACT 2000 S111(4)

PLANNING & DEVELOPMENT ACT 2000 S132(1)

PLANNING & DEVELOPMENT ACT 2000 S138

PLANNING & DEVELOPMENT ACT 2000 S116

PLANNING & DEVELOPMENT ACT 2000 S116(6)

PLANNING & DEVELOPMENT ACT 2000 S116(B)

PLANNING & DEVELOPMENT ACT 2000 S116(C)

PLANNING & DEVELOPMENT REGS SI 600/2001 S74

PLANNING & DEVELOPMENT REGS SI 685/2006

FRIENDS OF CURRAGH ENVIRONMENT LTD v BORD PLEANÁLA & ORS 2009 4 IR 451

EC DIR 85/337 ART 10(A)

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50(A)

PLANNING & DEVELOPMENT ACT 2000 S50(6)

PLANNING & DEVELOPMENT ACT 2000 S50(7)

INTERPRETATION ACT 2005 S19

PLANNING & DEVELOPMENT ACT 2000 S140(1)(B)

R (ANUFRIJEVA) v SECT OF STATE & ANOR 2003 AER 353

DODD STATUTORY INTERPRETATION IN IRELAND 2008 PARA 11.51

KSK ENTERPRISES LTD v BORD PLEANÁLA 1994 2 IR 128

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT ACT 1992 S19(3)

PLANNING & DEVELOPMENT ACT 2000 S3(A)

PLANNING & DEVELOPMENT ACT 2000 S3(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(B)(A)(III)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(3)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(B)(A)

KEELGROVE PROPERTIES LTD v BORD PLEANÁLA 2000 1 IR 47

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(B)(A)(I)

RYAN v CLARE CO COUNCIL UNREP HEDIGAN 11.3.2009 2009/49/12399 2009 IEHC 115

PLANNING & DEVELOPMENT ACT 2000 S50

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 P533

WALSH PLANNING & DEVELOPMENT LAW 2ED 1984

GRIFFITHS v SECT OF STATE FOR THE ENVIRONMENT 1983 2 AC 51

DUBLIN WELL WOMAN CENTRE & OTHERS v IRELAND & AG 1995 1 ILRM 408

CONSTITUTION ART 34.4.3

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S140

PLANNING AND DEVELOPMENT LAW

Appeal

Date appeal determined - Interpretation of âÇÿdetermination' - Point at which decision of Board legally effective - Jurisdiction of Board to act after withdrawal of appeal - Canons of interpretation - Refusal to grant planning permission appealed - Objection lodged - Decision to uphold refusal made at meeting of Board - Withdrawal of objection received after meeting - Board order upholding refusal issued - Whether date of determination of appeal date decision made at meeting - Whether Board acted ultra vires - K.S.K. Enterprises Ltd. v An Bord Pleanála [1994] 2 IR 128 and Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408 applied - Curragh Environment Ltd. v An Bord Pleanála [2006] IEHC 243, [2009] 4 IR 451; R (Anufrijeva) v Home Secretary [2003] UKHL 36, [2004] 1 AC 604; Keelgrove Properties Ltd. v An Bord Pleanála [2000] 1 IR 47; Ryan v Clare County Council [2009] IEHC 115, (Unrep, Hedigan J., 11/3/2009) and Griffiths v Env Sec. [1983] 2 AC 51 approved - Planning and Development Regulations 2001 (SI 600/2001) - European Communities Environmental Objectives (Surface Waters) Regulations 2009 (SI 272/2009), art 5 - Local Government (Planning and Development) Act 1963 (No 28), s 82 - Planning and Development Act 2000 (No 30), ss 34, 37, 50, 50A, 111, 116, 132, 138 and 140 - Interpretation Act 2005 (No 23), ss 5 and 19 - Council Directive 85/337/EEC - Constitution of Ireland 1937, art 34 - Certiorari granted (2011/248JR - MacMenamin J - 28/10/2011) [2011] IEHC 400

Urrinbridge Ltd v An Bord Pleanála

Facts: The applicant sought to review a decision of the respondent Board to refuse permission for a development. The Board had refused permission in early 2011 and the letter in question had arrived three days after the Board meeting. The Court considered the impact of ss. 37 and 140 of the Planning and Development Act 2000. The Court considered whether a letter seeking to withdraw an appeal received by the Board after its deliberation but before issuing its decision had the effect of depriving the Board of jurisdiction to issue its determination, whether a single letter withdrawing an appeal by the only objector deprived the Board of jurisdiction and also the date on which the Board had determined the appeal, within the meaning of s. 37(1)(b) and s. 140(1)(a) of the Act of 2000.

Held by MacMenamin J. that the determination took effect when notice of the decision was first sent; there were no other parties. The Court would grant the declaration that the decision of the respondent to refuse permission was null and void and ultra vires by reason of their failure to comply with ss. 37 and 140 of the Act of 2000. The Court would also grant an order of certiorari.

Reporter: E.F.

1 JUDGMENT of Mr. Justice John MacMenamin delivered on the 28th day of October, 2011

2 1. The applicant ("Urrinbridge") seeks judicial review of a decision made by the respondent ("the Board"), under An Bord Pleanála Ref. No. PL26.237722 ("the appeal"). That decision, now impugned, was to refuse permission for a proposed development at Bloody Bridge, Lyre, Enniscorthy, Co. Wexford. The essential points which arise for consideration in this judgment relate to the interpretation of ss. 37 and 140 of the Planning and Development Act 2000 ("PDA 2000"). The substantive issues may be briefly summarised. They are as follows:-

3 (i) In general, does a letter seeking to withdraw an appeal received by the Board after its deliberation, but before it had issued its decision, have the effect of depriving the Board of jurisdiction to issue its determination in all cases?;

4 (ii) Specifically, whether, on the facts of this case a letter, from the only objector withdrawing an appeal received by the Board on the 28 ^th January, 2011, after a meeting on the 25 ^th January, 2011, had the effect of depriving the Board of jurisdiction to determine the appeal when there was no other party to the appeal?;

5 (iii) On what date may it be said that the Board "determined" this appeal within the meaning of s. 37(1)(b) of the PDA 2000 and s. 140(1)(a) of the PDA 2000?;

6 (iv) Whether the Board, having considered the matter at a meeting on the 25 ^th January, 2011, was entitled to proceed to issue an order whereby it upheld the appeal, thereby refusing the planning permission which had been granted by the first named notice party?

7 As will be seen, this case arises from a set of rather unusual facts where the chronology is of some importance. A brief preliminary description of the circumstances will illustrate how the issues arise.

8 2. Urrinbridge received permission for a development, described in detail later, from the first named notice party ("the County Council"). It had no difficulty with the permission granted, and was not the appellant before the Board. The second named notice party, Ms. O'Connor, objected to the planning permission which Urrinbridge had obtained from the County Council. She appealed to the Board. Prior to the Board deliberating on the matter, Urrinbridge settled its differences with Ms. O'Connor. This agreement was arrived at on or before the 21 ^st January, 2011. Despite what one might think as the degree of urgency which might attach to an appeal which had been pending before the Board for some months, Ms. O'Connor's letter was not delivered to the Board until the 28 ^th January, 2011 - seven days after it was written; and after the Board members had met on the matter and decided to refuse permission. The matter had by then been with the Board for more than three months. The sequence of events is odd but I am entirely satisfied that nothing untoward occurred, and that what happened was mere chance. There has been no suggestion by the Board that there was any mala fides conduct, or any breach of the law. No notice to cross-examine was served. An affidavit has been filed which fully explains the sequence of events.

Chronology of Events

9 3. On the 26 ^th March, 2010, Urrinbridge applied to the County Council for permission to develop the site in question. The County Council issued a notice of a decision to grant planning permission subject to a range of conditions. On the 7 ^th October, 2010, Ms. O'Connor, as objector, appealed the County Council's decision to grant permission to the Board. This appeal was considered by a Board inspector, Ms. Brid Maxwell, on the 14 ^th January, 2011, who prepared a report for consideration by the Board members assigned.

The Nature of the Proposal

10 4. It might well be thought the project is the product of another, past, era. The intended site is 2.5 km north-west of Enniscorthy town centre. It has limited road frontage. The inspector described the area as being "urban/rural fringe" in character. There is significant ribbon development in the vicinity. There are a number of inactive, unfinished, housing estates nearby. The site lies to the west of the Slaney River Valley, a Special Area of Conservation, and the Wexford Harbour and Slobs Special Protection Area lies a little more 2.6 km south- east of the site.

11 5. The development is intended...