Wexele v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 19 March 2010 |
| Neutral Citation | [2010] IEHC 68 |
| Court | High Court |
| Date | 19 March 2010 |
[2010] IEHC 68
THE HIGH COURT
And
And
PLANNING & DEVELOPMENT ACT 2000 S50
PLANNING & DEVELOPMENT ACT 2000 S50 A
MCNAMARA v BORD PLEANALA & ORS 1995 2 ILRM 125
PLANNING & DEVELOPMENT ACT 2000 S132
PLANNING & DEVELOPMENT ACT 2000 S34(10)
PLANNING & DEVELOPMENT ACT 2000 S190
PLANNING & DEVELOPMENT ACT 2000 S191
PLANNING & DEVELOPMENT ACT 2000 S191 SCHED 4 PAR 1
PLANNING & DEVELOPMENT ACT 2000 S192
HOBURN HOMES LTD & BORD PLEANALA 1993 ILRM 368
SKIBINSCY v POLAND UNREP ECHR 14.11.2006 APPLICATION NO 52589/99
HOBURN LTD & ANOR v BORD PLEANALA 1993 ILRM 368
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 3 PAR 3
TENNYSON v CORP OF DUN LAOGHAIRE 1991 2 IR 527
WICKLOW HERITAGE TRUST LTD v WICKLOW CO COUNTY UNREP MCGUINNESS 5.2.1998 2000/17/6683
CORK CO COUNCIL v BORD PLEANALA 2007 1 IR 761
CICOL LTD v BORD PLEANALA UNREP 8.5.2008 2008/7/1231 2008 IEHC 146
DUNNE v BORD PLEANALA UNREP MCGOVERN 14.12.2006 2006/16/3370 2006 IEHC 400
O'DONOGHUE v BORD PLEANALA 1991 ILRM 750
DEERLAND v CONSTRUCTION LTD v AQUACULTURE LICENSES APPEAL BOARD 2009 1 IR 673
SWEETMAN v BORD PLEANALA UNREP BIRMINGHAM 9.10.2009
MULHOLLAND v BORD PLEANALA (NO 2) 2006 1 IR 453
NI EILI v ENVIRONMENT PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925
O'NEILL v BORD PLEANALA UNREP HEDIGAN 1.5.2009 2001/9/2432 2009 IEHC 202
PLANNING & DEVELOPMENT ACT 2000 S126
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6
BEATY v RENT TRIBUNAL 2006 2 IR 191
PLANNING AND ENVIRONMENTAL LAW
Planning permission
Mixed use development - Interpretation of development plan - Zoning objectives -Whether development premature - Whether obligations to specify time within which constraints might cease - Whether material error - Whether duty to give reasons - Whether substantial grounds - Whether delay in making decision - McNamara v An Bord Pleanála [1995] 2 ILRM 125 applied - Hoburn homes Ltd & Anor v An Bord Pleanála [1993] ILRM 368 distinguished - Skibinscy v Poland (ECHR, 14/11/2006 -REF), Tennyson v Corporation of Dun Laoghaire [1991] 2 IR 527; Wicklow Heritage Trust Ltd v Wicklow County Council (Unrep, HC, 5/2/1998); Cork County Council v An Bord Pleanála [2007] 1 IR 761; Cicol v An Bord Pleanála [2008] IEHC 146, (Unrep, Irvine J, 8/5/2008); Dunne v An Bord Pleanála (Unrep, McGovern J, 14/12/2006), Deerland Construction Ltd v Aquaculture Licenses Appeals Board [2009] 1 IR 673; Sweetman v An Bord Pleanála [2009] IEHC 599 (Unrep, Birmingham J, 9/10/2009); O Donoghue v An Bord Pleanála [1991] ILRM 750; Mulholland v An Bord Pleanála (No.2) [2006] 1 IR 453, Grealish v An Bord Pleanála [2006] IEHC 310 (Unrep, ONeill J, 24/10/2006); O Neill v An Bord Pleanála [2009] IEHC 202, (Unrep, Hedigan J, 1/5/2009)and Beatty v Rent Tribunal [2006] 2 IR 191 considered - Planning and Development Act 2000 (No 30), s 34(10), 132, 137 and 190 - Relief refused (2008/623JR - O Neill J - 19/3/2010) [2010] IEHC 68
Wexele v An Bord Pleanála
Facts the applicant sought, inter alia, an order of certiorari setting aside the refusal of the respondent to grant planning permission for a mixed use development. Permission had been refused on the basis, inter alia, that development of the site would be premature until further planning issues for the area had been resolved and that it would be contrary to proper planning and sustainable development of the area. One of the consequences of a finding that the development would be premature was that it precluded the applicant for receiving financial compensation from the State for the refusal of permission. The applicant contended that the respondent had not given sufficient reasons for concluding that his plan would be premature development for the area and that the respondent had erred in law in misconstruing the relevant development plan. It also contended that the respondent had failed to give adequate reasons as to why it did not follow the recommendation of the planning inspector appointed by it. It also contended that the time take to determine the appeal breached its rights pursuant to Article 6 of the European Convention on Human Rights.
Held by Mr. Justice O'Neill in refusing the relief sought that the infrastructure constraints inhibiting development within the area had been clearly identified by the respondent in making its decision that the applicant's plan would be premature.
That the evidence demonstrated that the respondent did not decide that the proposed development per se was inconsistent with the development plan, rather it decided that the absence of adequate transport, drainage and social infrastructure and of an adequate plan to address those deficiencies warranted a refusal of permission and it found that it would militate against the land use zoning objective for the site in the context of the foregoing. Therefore, no issue arose as to the interpretation of the development plan, far less a conclusion that the applicant's development was inconsistent with it.
That the decision on its face revealed clearly why the respondent did not follow the recommendation of the inspector appointed by it.
That there had been no culpable loss of time incurred during the appeal process and the time taken had been unavoidable if the appeal was to be heard and determined in a manner that was fair to all concerned and to enable the respondent deal with the difficult and complex issues before it.
Hoburn Homes Ltd. v. An Bord Pleanla [1993] I.L.R.M. 368 distinguished. Dunne v. An Bord Pleanla [2006] I.E.H.C. 400 considered.
Reporter: P.C.
1.1 This case came before this Court by way of a "telescoped hearing", that is, when the application for leave is heard together with the substantive arguments in the case. The applicant wishes to obtain the following reliefs:-
An order of certiorari setting aside the decision of the respondent dated the 8 th April, 2008, refusing planning permission for a mixed use scheme of development at Blackthorn Avenue, Sandyford Industrial Estate, Dublin 18.
A declaration that the respondent erred in its interpretation of the provisions of the Dún Laoghaire Rathdown County Council Development Plan 2004-2010. In particular, that the respondent erred in deciding that high density apartment development would militate against the land zoning objective for the area.
A declaration that the respondent is not entitled to refuse planning permission for the proposed mixed use scheme of development on the grounds of prematurity in circumstances where the alleged constraints on development are to be resolved by the planning authority within a reasonable period of time.
An order remitting the planning appeal to the respondent for reconsideration in light of the findings of the High Court.
In the alternative, damages for the loss and inconvenience suffered by the applicant as a result of the unreasonable delay on the part of the respondent in determining the appeal.
2.1 These proceedings were instituted by the applicant pursuant to ss.50 and 50A of the Planning and Development Act of 2000, as amended by the Planning and Development (Strategic Infrastructure) Act 2006 ("the Act of 2000"). Section 50A of the Act of 2000 provides that leave shall not be granted to an applicant unless this Court is satisfied that there are "substantial grounds" for contending that the decision of the respondent is invalid or ought to be quashed and that the applicant has a "substantial interest" in the matter.
2.2 Carroll J. considered the meaning of the term "substantial grounds" in McNamara v. An Bord Pleanála & Others [1995] 2 I.L.R.M. 125 at p.130:-
"What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are 'substantial'. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit."
3.1 The applicant is an unlimited liability company engaged in property development. On the 3 rd December, 2004, it applied for planning permission to Dún Laoghaire Rathdown County Council ("the planning authority") for a mixed-use development on a site of approximately 0.67 hectares at Sandyford Business Estate. The proposed development comprised of 259 residential apartments, 15 "live-work" units, a gym, a...
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