West Wood Club Ltd v an Bord Pleanála

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hedigan
Judgment Date26 January 2010
Neutral Citation[2010] IEHC 16
Date26 January 2010

[2010] IEHC 16

THE HIGH COURT

[No. 1234 J.R./2008]
West Wood Club Ltd v Bord Pleanála

BETWEEN

WEST WOOD CLUB LIMITED
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

DUBLIN CITY COUNCIL
NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S160

MCNAMARA v BORD PLEANALA (NO 1) 1995 2 ILRM 125

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

KENNY v BORD PLEANALA (NO 1) 2001 1 IR 565 2000/11/4343

MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

PROBETS & FREEZONE INVESTMENTS LTD v GLACKIN & ORS 1993 3 IR 134

GAVIN v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1997 1 IR 132 1996/4/1151

THE VILLAGE RESIDENTS ASSOCIATION LTD v BORD PLEANALA & MCDONALDS RESTAURANTS OF IRELAND LTD 2001 1 IR 441 2000/17/6611

PLANNING & DEVELOPMENT ACT 2000 S131

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD (T/A SOUTH COAST COMMUNITY TELEVISION BROADCASTING SERVICE) & MURPHY v MIN FOR TRANSPORT & ORS (NO 2) 1997 1 ILRM 241 1996 DULJ 139 1998/13/4403

O'CALLAGHAN & ORS v JUDGE MAHON & ORS 2008 2 IR 514 2007/47/9902 2007 IESC 17

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION CMSN 1997 2 IR 291 1997 2 ILRM 1 1997/6/2117

PLANNING & DEVELOPMENT ACT 2000 S34(2)

FITZGERALD v BORD PLEANALA UNREP MURPHY 11.11.2005 2005/25/5207 2005 IEHC 372

PLANNING & DEVELOPMENT ACT 2000 S5(5)

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

STACK v BORD PLEANALA UNREP O CAOIMH 7.3.2003 2003/47/11581

HAVERTY, STATE v BORD PLEANALA 1987 IR 485 1988 ILRM 545 1987/6/1735

EVANS v BORD PLEANALA UNREP KEARNS 7.11.2003 2004/18/4037

PLANNING & DEVELOPMENT ACT 2000 S34

QUINLAN v BORD PLEANALA & DUBLIN CITY COUNCIL UNREP DUNNE 13.5.2009 2009 IEHC 228

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNICATIONS 2009 1 IR 673 2008/11/2331 2008 IEHC 289

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL & ANOR v PORTER (NO 2) 2004 1 WLR 1953 2004 4 AER 775

SWEETMAN v BORD PLEANALA & ORS 2008 1 IR 277 2007/57/12251 2007 IEHC 153

DUNNE & MACKENZIE v BORD PLEANALA & ORS UNREP MCGOVERN 14.12.2006 2006/16/3370 2006 IEHC 400

GREALISH v BORD PLEANALA 2007 2 IR 536 2006/27/5728 2006 IEHC 310

PLANNING & DEVELOPMENT ACT 2000 S34(10)

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

SWEENEY, STATE v MIN FOR ENVIRONMENT & LIMERICK CO COUNCIL 1979 ILRM 35 1979/2A/498

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

SWEETMAN v BORD PLEANALA UNREP BIRMINGHAM 9.10.2009 (EX TEMPORE)

SAVE BRITAINS HERITAGE v SECRETARY OF STATE FOR THE ENVIRONMENT & ORS 1991 2 AER 10 1991 1 WLR 153

PLANNING & DEVELOPMENT ACT 2000 S247

PLANNING & DEVELOPMENT ACT 2000 S247(5)

PLANNING & DEVELOPMENT ACT 2000 S247(2)

PLANNING & DEVELOPMENT ACT 2000 S247(3)

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Retention permission - Refusal - Use application - Works application - Substantial grounds - Proceeding on false presumption - Reliance on previous determination - Breach of fair procedures - Regard to city development plan - Adequate reasons - Level of reasons required - Irrationality - Relevant matters - Taking irrelevant matters into account - Certiorari - Preliminary matter - Appropriateness of deponent of verifying affidavit of statement of opposition - Whether deponent of verifying affidavit appropriate - Whether substantial grounds for judicial review - Whether respondent proceeded on false presumption - Whether reliance wrongly placed by respondent on previous determination - Whether breach of fair procedures - Whether failure to have regard to city development plan - Whether adequate reasons given - Whether respondent obliged to indicate what would be required for a successful future application - Planning and Development Act 2000 (No. 30) ss 5, 34, 50A, 247 - McNamara v An Bord Pleanála [1995] 2 ILRM 25, In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, Mulholland v An Bord Pleanála (No 2)[2005] IEHC 306 [2006] IR 453, The Village Residents Association Ltd v An Bord Pleanála [2001] IR 441, Fitzgerald v An Bord Pleanála [2005] IEHC 372 (Unrep, Murphy J, 11/11/2005), State(Haverty) v An Bord Pleanála [1987] IR 485, Evans v An Bord Pleanála (Unrep, Kearns J,7/11/2003), Quinlan v An Bord Pleanála [2009] IEHC 228 (Unrep, Dunne J, 13/5/2009) and Kenny v An Bord Pleanála (No 1) [2001] IR 565 applied - Probets v Glackin [1993] 3 IR 134, Gavin v Criminal Injuries Compensation Tribunal [1997] 3 IR 132, McGoldrick v An Bord Pleanála [1997] 1 IR 497 distinguished - Carrigaline Community Television Broadcasting Co Ltd v Minister for Transport [1997] 1 ILRM 241, O'Callaghan v Mahon [2007] IESC 17 [2008] 2 IR 514, Radio One Limerick Ltd v IRTC [1997] 2 IR 291, Stack v An Bord Pleanála (Unrep, Ó Caoimh J, 7/3/2003), Deerland Construction Ltd v Aquaculture Licences Appeal Board [2008] IEHC 289 [2009] 1 IR 673, South Bucks District Council v Porter [2004] UKHL 33 [2004] 4 All ER 775 and Sweetman v An Bord Pleanála [2007] IEHC 153 [2008] IR 277, Dunne v An Bord Pleanála [2006] IEHC 400 (Unrep, McGovern J, 14/12/2006), Grealish v An Bord Pleanála [2006] IEHC 310 [2007] 2 IR 536, O'Donoghue v An Bord Pleanála [1991] ILRM 750, State (Sweeney) v Minister for Environment [1979] ILRM 35, O'Keeffe v An Bord Pleanála [1993] 1 IR 39 considered - Leave and relief refused (2008/1234JR - Hedigan J - 26/1/2010) [2010] IEHC 16

West Wood Club Ltd v An Bord Pleanála

Facts The applicant sought leave to apply by way of judicial review for an order of certiorari and various declaratory reliefs against a decision of the respondent refusing an application for retention planning permission. It was agreed that the matter should proceed by way of a "telescoped hearing". The applicant owned a sports and leisure centre and in 1998 was granted permission for the development of adjoining lands and provision was made in the plans for a restaurant use. Subsequently, the applicant obtained an intoxicating liquor licence. In 2002 the applicant began to operate a bar/disco on the premises called "Bar Code". The applicant unsuccessfully applied for a declaration pursuant to s. 5 of the Planning and Development Act, 2000, as to whether certain matters constituted exempted development. Both the notice party and the respondent on appeal determined that the bar usage was not exempted development. Enforcement proceedings were commenced but were adjourned pending the applicant's application for retention permission. The applicant applied for retention of a change of ancillary use of part of the established leisure centre for the sale of intoxicating liquor together with extensions and facilities related to that change of use. The applicant also applied for the retention of various other works that had been carried out on the site including various extensions. The application was refused by the notice party and on appeal by the respondent but some of the works were granted retention permission. The applicant relied on seven grounds for challenging the decision of the respondent, namely; 1. that the respondent proceeded to determine the applications for retention permission on the false assumption that no alcohol could be served on the premises at all, in disregard of the permitted use as a leisure centre with ancillary restaurant usage, 2. the respondent fettered its discretion or pre-judged the appeals by relying on its previous determination in respect of the s. 5 application and did not therefore deal with the applications on their own merits, 3. the respondent breached fair procedures by failing to inform the application that it intended to rely on the s. 5 declaration, by failing to circulate third party submissions to the applicant and by failing to have regard to the comparative information supplied by the applicant, 4. the respondent failed to have proper regard to the Dublin City Development Plan in that it failed to consider that a leisure centre was a permitted use under the zoning objectives, 5. the respondent failed to give adequate reasons for its decision, in such a manner that the applicant could not ascertain what would be acceptable to it in the future, 6. there was irrationality on the part of the respondent in granting permission in respect of some of the works and refusing others and 7. the respondent had regard to an irrelevant consideration based on the fact that a note of a pre-planning consultation between the applicant and the respondent was not contemporaneous and omitted relevant information.

Held by Hedigan J. in refusing the application:

1. That leave should be granted in relation to ground 1 but the substance of the applicant's complaint that the respondent fettered its discretion by not acknowledging that any alcohol could be served on the premises was not supported by the evidence. The applicant was not interested in a limited bar service ancillary to the leisure centre and the respondent was not asked to consider such a proposition.

2. That leave should be granted on this ground but the substantive relief refused as the evidence showed that the respondent embarked on a new and distinct analysis in the application for retention permission.

3. That fair procedures were not breached. The s.5 declaration was legitimately taken into consideration by the respondent, the third party submissions did not raise any new issues and in any event were not relied on by the respondent and the comparators were not valid comparators.

4. That leave should be granted on this ground but the substantive relief refused as it was not demonstrated...

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