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 |
BETWEEN
AND
AND
[2010] IEHC 21
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
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.
By a decision of An Bord Pleanála dated 14th 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.
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".
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.
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.
St. Michael's Hospital has been an integral part of Dún Laoghaire since the mid-19th century. In recent memory it was run by the Sisters of Mercy. More...
To continue reading
Request your trialUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Start Your 7-day Trial
-
Merriman v Fingal County Council
...[131] (iii) Judgment of Fennelly J. [132] a. Overview. [132] b. Effect on Rights and Diminution in Property Values. [133] (iv) Wexele v. An Bord Pleanála [142] (v) Klohn v. An Bord Pleanála [144] (vi) Blinkered Focus on Facts at Hand? [148] G. THE ENVIRONMENTAL IMPACT DIRECTIVE XXII. Is a D......
-
Crekav Trading GP Ltd v an Bord Pleanála
...regime which applies to it. I also note and agree the views expressed by Charleton J. in the High Court in Wexele v. An Bord Pleanála [2010] IEHC 21 (“ Wexele“) that it would not be appropriate for the Court to reformulate the statutory procedures, insofar as they apply to the Board. To th......
-
Crofton Buildings Management CLG v an Bord Pleanála
...consequential transitional arrangements. 58 Crekav Trading GP Limited v An Bord Pleanála [2020] IEHC 400 59 Wexele v. An Bord Pleanála [2010] IEHC 21 60 Ebonwood & Element — infra. 61 Joyce-Kemper v. An Bord Pleanála [2021] IEHC 281 62 the Waste Water Discharge (Authorisation) Regulations, ......
-
Dellway Investment Ltd and Others v National Asset Mangagement Agency (NAMA) and Others
...ASSET MANAGEMENT AGENCY ACT 2009 S2(B) NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S10(2) WEXELE v BORD PLEANALA UNREP CHARLETON 5.2.2010 2010 IEHC 21 NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S8 NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S9 NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 (ESTABLISH......