Wexele v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 05 February 2010
• Neutral Citation: [2010] IEHC 21
• Court: High Court
• Docket Number: No. 1024 JR/2008
• Date: 05 February 2010

Wexele v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

WEXELE

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

D ÚN LAOGHAIRE-RATHDOWN COUNTY COUNCIL

NOTICE PARTY

[2010] IEHC 21

No. 1024 JR/2008

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Change of use

Existing use of site - Proposed development - Loss of existing car park - Under provision of car parking space in area - Permission refused - Whether planning authority entitled to take into account loss of parking spaces - Whether decision beyond powers of respondent - Whether respondent took in to account non-relevant considerations regarding existing use of site - Relevant and legitimate factors to be taken into account - Inter-relationship between development plan and function of planning authority - Whether terms of development plan conclusive - Whether overriding consideration must proper planning and sustainable development - Fair procedures - Whether any breach of fair procedures - Opportunity to comment on third party submissions - Nature of submission - Whether applicants had full opportunity to make reasonable or relevant point - State (Haverty) v An Bord Pleanála [1987] IR 485; State (Genport Ltd) v An Bord Pleanála (Unrep, Finlay P, 1/2/1982); Ryanair v An Bord Pleanála [2004] 2 IR 334; Evans v An Bord Pleanála (Unrep, Kearns J, 7/11/2003); Westminster Council v British Waterways Board [1985] 1 AC 676 and Clyde & Co v Secretary of State for the Environment [1977] 1 WLR 926 considered- P & F Sharpe Ltd v Dublin City Manager [1989] IR 701 applied - Kildare County Council v Goode [1999] 2 IR 495, [2000] 1 ILRM 346 approved - Planning and Development Act 2000 (No 30), ss 34, 37, 39, 50, and 126 to 138 - Relief refused (2008/1024JR - Charleton J - 5/2/2010) [2010] IEHC 21

Wexele v Bord Pleanála

Facts The applicant had been refused planning permission by the respondent to build a retail and residential complex on the ground, inter alia, that the loss of parking spaces created thereby would result in an under provision of car parking spaces for the area, thereby adding to traffic congestion. It sought to have that decision quashed on the grounds, inter alia, that issues as to parking and traffic congestion were outside the scope of what the respondent could have regard to and, thus, irrelevant and immaterial to the application. It also argued that the respondent had acted in breach of fair procedures in failing to notify it of further observations made by a third party to the planning appeal.

Held by Mr. Justice Charleton in refusing the relief sought that if a complaint was made that an applicant was shut out of making a submission, that party had to show that they had something to say which had not already been said. Nor could it be a reiteration in different language of an earlier submission. If a party was to meet the onus of alleging unfairness by the Board in cutting them out for making a submission they had to reveal what had been denied them, what they had to say and then discharge the burden of showing that it had been unjust for the Board to cut them out of saying it. Ryanair v. An Bord Pleanla [2004] 2 I.R 334 considered. Any complaint of lack of fair procedures in the operation of a statutory body had to take into account as a primary factor the legislative scheme within which it operated. There was no warrant for judicial intrusion by way of reformulating procedures where these had already been set out in statute.

An administrative body which exercised a decision-making function was bound by the limits of the statutory scheme whereby it was set up. The applicable legislative code circumscribed its area of operation. In consequence, a decision was likely to exceed jurisdiction where relevant considerations were not taken into account or where irrelevant considerations underlined a decision. Proper and sustainable planing remained paramount considerations to applications for planning permission and the terms of the development plan were not conclusive. The previous use of the site as a car park was relevant in terms of planning considerations.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S37

HAVERTY, STATE v BORD PLEANALA 1987 IR 485

GENPORT LTD, STATE v BORD PLEANALA UNREP FINLAY 1.2.1982 1982/11 /2028

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

PLANNING & DEVELOPMENT ACT 2000 S34(1)

PLANNING & DEVELOPMENT ACT 2000 S34(2)

PLANNING & DEVELOPMENT ACT 2000 S34(3)

PLANNING & DEVELOPMENT ACT 2000 S128(2)

PLANNING & DEVELOPMENT ACT 2000 S129

PLANNING & DEVELOPMENT ACT 2000 S130

PLANNING & DEVELOPMENT ACT 2000 S131

PLANNING & DEVELOPMENT ACT 2000 S132

PLANNING & DEVELOPMENT ACT 2000 S133

PLANNING & DEVELOPMENT ACT 2000 S134

RYANAIR v BORD PLEANALA 2004 2 IR 334

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S7

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

P & F SHARPE LTD v DUBLIN CITY MANAGER 1989 IR 701

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PAR 1.23

SCANNELL EVVIRONMENTAL & LAND USE LAW DUBLIN 2006 PAR 2-294

PLANNING & DEVELOPMENT ACT 2000 S39

KILDARE CO COUNCIL v GOODE 1999 2 IR 4952000 1 ILRM 346 1999/15/4341

PLANNING & DEVELOPMENT ACT 2000 S2(1)

PLANNING & DEVELOPMENT ACT 2000 S34(4)(J)

PLANNING & DEVELOPMENT ACT 20002000 SCHED 1 5(C)

PLANNING & DEVELOPMENT ACT 20002000 SCHED 1 6(D)

WESTMINSTER COUNCIL v BRITISH WATERWAYS BOARD 1985 1 AC 676

Mr. Justice Charleton

1 This case is mainly about parking in Dún Laoghaire. Can a planning authority take into account the loss of parking spaces if a development proceeds; even where the car parking on the site of a proposed development, has in the past been offered as a free gift to a nearby hospital? Additionally, the perennial question of fair procedures looms again.

2 By a decision of An Bord Pleanála dated 14^th July, 2008, the applicant was refused permission to built an apartment and retail complex consisting of 80 apartments, two retail units and associated car parking for that development and for a development situated a short distance away, as a bird would fly, but accessible on foot only by way of a long detour. While three reasons were given for the decision of the respondent refusing planning permission, only one is attacked in this judicial review proceeding.

3 As a matter of fact, the development of this site, as proposed by the applicant, would have removed upwards of 100 car parking spaces at ground level, since the proposed site of the development is what has been for many used by St. Michael's Hospital as a car park for its staff and patients. The reason for refusal that is under review is as follows:-

"Having regard to the existing use of the site for car parking, the parking needs of the proposed development and for other development in the area, it is considered that the proposed development, which entails the loss of an existing car park, would result in an under provision of car parking space in the area. The proposed development would, therefore, add to traffic congestion in the area, would seriously injury the amenities of the property in the area and be contrary to the proper planning and sustainable development of the area".

4 There were two other reasons given by the respondent for refusing planning permission on appeal from a similar decision of the planning authority. These related to the visual amenity of the area and to the siteing, design and layout of the proposed development and its relationship to adjoining properties. These, however, are not challenged in this review.

5 An order ofcertiorariis sought in respect of the decision as to car parking; a declaration is sought that this decision was beyond the powers of the respondent; an order is sought severing this reason from the decision and that it be amended accordingly, and an order is sought remitting the matter to the respondent for re-hearing. The grounds on which the relief is sought may be divided into broad categories. Firstly, after permission had been refused by the planning authority, certain third parties submissions were sent to an Bord Pleanála. The applicant complains that, in breach of fair procedures, they had no opportunity to comment on these as they were not furnished with notice of them. Secondly, it is pleaded that in breach of ss. 34 and 37 of the Planning and Development Act, 2000, as amended, the respondent took in to account non-relevant considerations, being the effect of the development to cause a change of use of a portion of its lands from an existing car park to the proposed development. The applicant argues that as the car park was owned by the applicant, and allowed under a caretaker's agreement to St. Michael's Hospital to be used by them free of charge, An Bord Pleanála was not entitled to take in to account the effect on the adjoining hospital of the use of this free car parking facility. Further, the applicant argues that the decision to refuse permission was beyond the powers of the respondent because it had regard to the existing use of the site of the car parking in respect of proposed development in the area and a projected under provision of car parking space. It is also argued to an error of law that the proposed development would result in the under provision of car parking space in the area. Further, it is claimed to be an error of law that the respondent concluded that the proposed development would add to traffic congestion in the area or would seriously injure the amenities of property in the area in that regard, or both of same.

6 St. Michael's Hospital has been an integral part of Dún Laoghaire since the mid-19^th century. In recent memory it was run by the Sisters of Mercy. More...