West Wood Club Ltd -v- An Bord Pleanála, [2010] IEHC 16 (2010)

Docket Number:2008 1234 JR
Party Name:West Wood Club Ltd, An Bord Pleanála
Judge:Hedigan J.
 
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THE HIGH COURT2008 1234 JRBETWEENWEST WOOD CLUB LIMITEDAPPLICANTANDAN BORD PLEANÁLARESPONDENT ANDDUBLIN CITY COUNCILNOTICE PARTYJUDGMENT of Mr. Justice Hedigan delivered on the 26th of January 20101. These proceedings concern an application for leave to apply by way of judicial review pursuant to s.50A of the Planning and Development Act 2000 ("the Act of 2000"), as amended by the Planning and Development (Strategic Infrastructure) Act 2006. It was agreed by the parties that the hearing of this matter should proceed by way of a "telescoped hearing", that is, on the basis of the application for leave and the substantive grounds being heard together.2. The applicant is a limited liability company which owns a sports and leisure centre at Clontarf Road, Fairview, Dublin 3. Its facilities include a 50 meter swimming pool, seven indoor tennis courts, three outdoor tennis courts, an indoor basketball court, a 24,000 square foot gym, dance studios, an indoor running track, a climbing wall, child care facilities, a spa, a sports shop, a café and a restaurant.3. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976 charged with the determination of certain matters arising under the Planning and Development Acts 2000 to 2006.4. The notice party is the local authority with responsibility for the administrative area of the City of Dublin. One of its functions is the control, registration and decision-making for new developments, in particular, through granting or refusing applications for planning permission.Planning History 5. On the 7th August, 1998, the applicant was granted planning permission by Dublin Corporation, the predecessor to the notice party, for the development of lands adjoining Fairview Park. Provision was made in the plans, which were approved, for, inter alia, a restaurant use. On the 23rd December, 1999, the applicant was granted planning permission in respect of certain alterations to the original grant of permission.6. The applicant subsequently obtained an intoxicating liquor licence from the District Court. In 2002 the applicant began to operate a bar/disco on the premises called "Bar Code". The notice party took exception to this, primarily on the grounds of the scale of the bar usage. It wrote to the applicant on the 22nd January, 2003, on the 13th February, 2003, and again on the 10th June, 2003, alleging that part of the building was unauthorized for use as a public bar.7. On the 17th July, 2003, the applicant applied for a declaration pursuant to s.5 of Act of 2000, on a without prejudice basis, as to whether certain matters constituted exempted development including "the use of that portion of the premises referred to as the 'leisure centre' for use as a leisure centre together with the ancillary use for the sale of intoxicating liquor." Section 5 of the Act of 2000 enables any person to request in writing a declaration from the relevant planning authority as to whether or not a development is or is not exempted development within the meaning of the Act of 2000.8. The notice party determined that the development was not exempted development in its decision dated the 21st August, 2003. On appeal, the respondent also determined that the bar usage was not exempted development in a decision dated the 30th January, 2004, and that the use of part of the leisure area for the sale of intoxicating liquor constituted a material change of use, having regard to its scale and the provision of a separate entrance.9. Enforcement proceedings were commenced by the notice party against the applicant in May 2005 pursuant to s.160 of the Act of 2000 on the grounds that the bar usage was unauthorized development. Those proceedings were adjourned generally on the 17th July, 2007, upon the applicant agreeing to submit an application for retention permission, without prejudice to its position that the development was unauthorized.10. The applicant then made two separate applications for retention permission on the 5th December, 2007 to the notice party. One of the applications, referred to by the applicant as the "use application", was an application 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 this change of use. The other application, referred to by the applicant as the "works application", was for the retention of various other works that had been carried out on the site including various extensions, alterations to approved elevations, retractable awning, signage, portacabins, metal shipping containers, a water feature, a climbing wall and car parking.11. The "use application" was refused by the notice party in its entirety in a decision dated the 2nd February, 2008. Some of the works as detailed in the "works application" were granted retention permission by it and others were refused.12. The applicant appealed the decisions of the notice party to the respondent on the 1st March, 2008. The respondent received various submissions/observations from third parties, which were not circulated to the applicant. In decisions dated the 12th September, 2008, the respondent refused retention permission in respect of the "use application" and only granted retention permission in respect of some of the works in the "works application" i.e. north-westward extensions of 243 square meters; offices and storage on the second floor; an increase in roof level from one to three storeys to provide for a climbing wall and one portacabin and metal shipping container.13. It is these decisions of the respondent of the 12th September, 2008, that the applicant seeks to challenge in these proceedings. It does so by reference to eight principal grounds, which will be dealt with below. The reasons and considerations for the respondent's decision in respect of the "use application" were stated in the decision to be as follows:-"1. The proposed retention of use of part of the previously approved Sports Leisure Club complex within the West Wood Leisure Centre for the sale of alcoholic liquor (indicated as 'Bar Code'), by reason of its scale, separate entrances and operational hours, is not considered subservient to the primary use of the site as a sports and leisure centre. The retention of 'Bar Code' a licensed premises, of the scale proposed, for the sale and consumption of alcoholic liquor is a 'non permissible use' as set out in paragraph 14.4.9 and 14.5.0 of the current Dublin City Development Plan. The retention of use would, therefore, materially contravene the "Z9" zoning objective set out in the development plan, which seeks to preserve, provide and improve recreational amenities and open space' and would, therefore, be contrary to the proper planning and sustainable development of the area.2. On the basis of the planning history of the site and the submissions made in connection with the application and the appeal it appears to the Board that the proposed development relates to a site, the use of which is unauthorised for use as a licensed premises, Bar Code, for the sale and consumption of alcoholic liquor. The retention of works associated with the facility as a licensed premises would facilitate the consolidation and intensification of this unauthorised use. Accordingly, it is considered that it would be inappropriate for the Board to consider the grant of a permission for the proposed development in such circumstances." 14. The reasons and considerations with regard to the "works application" are as follows:-"1. On the basis of the planning history of the site and the submissions made in connection with the application and the appeal, it appears to the Board that the proposed development relates to a site the use of which is unauthorised for use as a licensed premises, Bar Code, for the sale and consumption of alcoholic liquor. The retention of works associated with this facility as a licensed premises would facilitate the consolidation and intensification of this unauthorised use. Accordingly, it is considered that it would be inappropriate for the Board to consider the grant of permission for this element of the development in such circumstances. 2. It is considered that the Bram Stoker Museum/Dracula Experience is an intensification of use on a severely restricted site, would constitute overdevelopment of the site by reason of access arrangements for this element of the development proposed for retention and would, therefore, be contrary to the proper planning and sustainable development of the area.3. The use of portacabins and shipping containers as a permanent/semi-permanent storage facility would constitute overdevelopment of the site and would be unacceptable for visual amenity and health and safety reasons. This element of the development proposed for retention would, therefore, seriously injure the visual amenities of the area and be contrary to the proper planning and sustainable development of the area.4. The vehicle access and car parking proposed for retention would cause traffic conflicts, would constitute substandard development with regard to adequate aisle widths and pedestrian linkages, would provide inadequate segregation for cars and pedestrians and would endanger public safety by reason of obstruction of road users and pedestrians. Furthermore, the proposed retention of car parking at the existing scale, which is additional to the original development on the site, would constitute significant overdevelopment of the site and contravene Dublin City Council Policy T2 to encourage modal shift. The retention of this element of the proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.5. The signage proposed for retention relates to an unauthorised and non-conforming use 'Bar Code' and, furthermore, it is considered that the signs proposed for...

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