Village Residents Association Ltd v an Bord Pleanála (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 05 May 2000
• Docket Number: [1999 No. 238 J.R.]
• Date: 05 May 2000
• Court: High Court

Village Residents Association Ltd. v. An Bord Pleanála (No. 3)

The Village Residents Association Limited

Applicant

and

An Bord Pleanála and McDonalds Restaurants of Ireland Limited, Respondents: Kilkenny Corporation, Notice Party (No. 3)

[1999 No. 238 J.R.]

High Court

Local government - Planning and development - Appeal - Obligation to state reasons for decision - Whether reasons for decision adequately stated - Whether powers under s.14 (8) of the Act of 1976, were invoked by planning authority - Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86), reg. 65 - Local Government (Planning and Development) Act, 1963, (No. 28), s. 26(1) and (8) and s. 82(3A) and (3B) - Local Government (Planning and Development) Act, 1976, (No. 20), s. 14(8) - Local Government (Planning and Development) Act, 1992, (No. 14) s. 19(3).

The second respondent was refused planning permission by the notice party and appealed the refusal to the first respondent. The first respondent granted planning permission subject to certain conditions set out in the first respondent's decision.

The applicant applied by way of judicial review for an order ofcertiorari quashing the decision of the first respondent on the grounds that the reasons for the decision were not stated adequately and that, should it be established that the proposed development materially contravened the development plan and that the first respondent had invoked the provisions of s.14(8) of the Act of 1976, in granting planning permission, that it should include its reasons for doing so as part of its reasons for granting planning permission.

It was submitted by the applicant that, by reason of the first respondent not having stated whether it had found that the proposed development would materially contravene the development plan or not, the decision was ambiguous.

Held by the High Court (Laffoy J.), in refusing the relief sought, 1, that the first respondent had fulfilled its statutory obligation on the question of the adequacy of the reasons stated in the entirety of the document issued by the first respondent, because the document indicated why the first respondent decided to grant permission subject to conditions and to reject the objections of substance made by the notice party.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; The State (Creedon) v. Criminal Injuries Compensation Tribunal[1988] I.R. 51 and NíÉilíéilí v. Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999) considered.

2. That the only stated objective of the notice party in resorting to the provisions of the development plan, in rejecting the application, was to preserve the residential amenities of the area.

3. That, accordingly, it had not been established that the first respondent exercised its power under s. 14(8) of the Act of 1976, and that it was therefore not necessary to express any view on whether a planning authority, invoking its powers under that provision, should include its reasons for doing so as part of the reasons for granting planning permission.

Cases mentioned in this report:-

Bolton M.D.C. v. Secretary of State for the Environment [1995] J.P.L. 1043.

M.J.T. Securities Ltd. v. Secretary of State for the Environment (A.C.) [1998] J.P.L. 138; [1997] N.L.J. 133.

NíÉilíéilí v. Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999).

O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

The State (Creedon) v. Criminal Injuries Compensation Tribunal [1988] I.R. 51; [1989] I.L.R.M. 104.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Laffoy J., infra

On the 11th November, 1999 the High Court, (Geoghegan J.), granted leave to the applicant to apply, by way of judicial review, for an order of certiorari, quashing the decision of the first respondent made on the 30th April, 1999, which granted planning permission, subject to conditions, to the second respondent [reported at [2000] 1 I.R. 65].

The application was heard by the High Court (Laffoy J.), on the 7th, 8th and 11th April, 2000.

Cur. adv. vult.

Laffoy J. 5th May, 2000

Background

In July, 1998, the second respondent (McDonalds) applied to the notice party (the Corporation) for planning permission for a development consisting of a change of use of part of the ground floor of existing premises from a hotel facility to a restaurant with "drive-thru" facility for the sale of hot food for the consumption off the premises and other alterations and associated site works at premises adjoining the Village Inn, Upper Patrick St., Kilkenny. At the time, the 1994 Kilkenny City and Environs Development Plan (the development plan), which had been adopted by the notice party on the 27th September, 1994, and by Kilkenny County Council on the 17th October, 1994, governed development within Kilkenny city. The premises the subject of the second respondent's application were in an area zoned"residential" in the development plan, the objective of the development plan, being "to protect, provide and improve residential amenities" in the area. Restaurant use was one of the uses which, although not specified as a permitted use, was "open for consideration", meaning that it might be permitted if it would not conflict with the general objectives for the zone, in an area zoned residential in the development plan. In the chapter of the development plan dealing with "economic development", being in the part thereof dealing with "policies and objectives", certain policy stratagems were identified for achieving the objective of the notice party's policy in relation to shopping, which was "to strengthen and protect the role of Kilkenny city centre as the primary shopping area for Kilkenny county …". One of the policy stratagems was "prohibiting additional take-away outlets within the Borough".

On the 4th September, 1998, the notice party notified the second respondent of its decision of that date to refuse to grant permission for the development sought. Three reasons were ascribed for the refusal in the following terms:-

"1. It is the policy of the 1994, Kilkenny City and Environs Development Plan - Section 4.15 Shopping Policy-Sub Section LV- 'Prohibiting additional take-away outlets in the Borough'. Such a take-away establishment/outlet would have serious detrimental effects on the residential amenity of the area.

2. The proposed development is located in an area zoned with the objective to protect and improve the residential amenities of the area in the 1994, Kilkenny City and Environs Development Plan which objective is considered to be reasonable. While one of the uses 'open for consideration' in residential areas in the 1994, Kilkenny City and Environs Development Plan includes restaurant use, it is the inclusion/addition of take-away facilities which conflicts with the zoning objective and would therefore be contrary to the proper planning and development of the area.

3. The proposed development would endanger public safety by reason of traffic hazard because the site is located in close proximity to a busy traffic junction where statutory on-street parking prohibitions apply. The nature of a take-away restaurant facility together with a 'drive-thru' facility is such that it is likely to give rise to parking in the immediate proximity to the site and the proposed development would therefore be prejudicial to vehicular and pedestrian safety."

The second respondent appealed to the first respondent (the Board) against the decision to refuse.

On the appeal, there were only two valid submissions before the first respondent, one from the second respondent and the other from the notice party.

The second respondent's letter of appeal/submission was made on its behalf by Auveen Byrne & Associates, Consultant Town Planners, and it included, inter alia, a traffic report on the proposed development prepared by Ove Arup and Partners Ireland. In the submission it was pointed out that neither the word "restaurant" nor the expression "take-away outlets" was defined in the development plan. Having referred to the definition of "restaurant" ("a building where the primary function is the sale of meals/refreshments for consumption on the premises") in the then current Dublin City Development Plan, 1991 and the definition of "take-away" ("a structure used for the sale of hot food for consumption off the premises") in the Dublin City Draft Development Plan, 1998, it was stated as follows in the submission:-

"It will be seen below that McDonalds propose a 120-seat restaurant at Upper Patrick Street. Maximum 20% of sales will be off sales. The proposal clearly comes within the above definition of restaurant and clearly falls outside the above definition of take-away. In the absence of any definition in the Kilkenny Borough and Environs Plan, the above, which are logical and apt definitions of two common types of premises, are commended to the Board. The ban on take-aways does not apply to the subject proposal, and the proposed development is 'open for consideration' in its residential zone."

Later in the submission it was reiterated, by reference to the above statement, that "the development plan ban on further take-aways does not apply to the proposed outlet which is a restaurant". With reference to the first reason ascribed by the notice party for the refusal, it was stated that the ensuing paragraphs of the submission would demonstrate that the proposed development would not have a materially adverse effect on residential amenity. In relation to the inclusion by the notice party of "restaurants such as McDonalds" under the definition of "take-away", it was submitted that, if this was a correct approach, the ban by the notice party on further such outlets in their administrative area was unreasonable. Following what I think might fairly...