Wexele -v- An Bord Pleanála, [2010] IEHC 68 (2010)

Docket Number:2008 623 JR
Party Name:Wexele, An Bord Pleanála
Judge:O''Neill J.

THE HIGH COURT2008 623 JRWexeleApplicantAnd

An Bord PleanálaRespondentAnd

Stillorgan Heath Residents' Association, Brian Meade, Lakelands Residents' Association, John McVeigh, Dermot Swanton,

Mary Swanton, Brendan De Hora, Elizabeth De Hora, Doctor Jennifer Pollock, Hugh M. Pollock, Michael Carolan,

Ann Ronan, Siobhan Meade and Angela Molloy, Kieran Bristoe and Carolyn McMahon, Noel Kelly, Marie Nolan,

Maureen Junka Kelly, Gerard Coakley, Jim Behan, Gillian Taylor and Brian O'Toole, Sandra McGarry, David Nolan,

Gerard Gillian, David Nolan, Ronan O'Byrne, Siobhan Harman, Peter Bolger, Micheal Neary, Fiona Neary,

Eamon Murphy, Mary Murphy and Tom Dwyer, Dun Laoghaire-Rathdown County CouncilNotice PartiesJudgment of O'Neill J. delivered the 19th day of March 2010.

  1. Reliefs Sought

    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:-

  2. An order of certiorari setting aside the decision of the respondent dated the 8th April, 2008, refusing planning permission for a mixed use scheme of development at Blackthorn Avenue, Sandyford Industrial Estate, Dublin 18.

  3. 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.

  4. 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.

  5. An order remitting the planning appeal to the respondent for reconsideration in light of the findings of the High Court.

  6. 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.

  7. Leave Requirement

    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."

  8. The Facts

    3.1 The applicant is an unlimited liability company engaged in property development. On the 3rd 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 crèche, a club cinema for the use of residents, a car park with 338 spaces and commercial floor space.

    3.2 On the 27th July, 2005, the planning authority made a decision to grant the proposed scheme planning permission, subject to thirty nine conditions. The applicant, on the 23rd August, 2005, lodged a first party appeal with the respondent in respect of three of the conditions (conditions nos. 8, 37 and 39). Condition 8 concerned proposed road widening/improvement works. The applicant sought that this condition would reflect the agreement it said had been reached with the planning authority's roads department that the cost of the road works would be offset against the cost of development levies. Condition 37 required the applicant to complete all infrastructural works to the current standard of the planning authority of "not less" than two years from the date of the commencement of the works. The applicant was of the view that the planning authority must have intended to state "not more" than two years. In any event it submitted to the respondent that it would not be viable to demand that all infrastructural works would be completed within two years from the commencement of the works, given that construction of the development may take longer than two years. Condition 39 stipulated that all submissions on compliance required by the conditions were to be submitted at the same time for consideration by the planning authority. The applicant contended that this would be impossible in circumstances where a number of the conditions stated that they were to be agreed prior to the commencement of the development and others stated that they were to be agreed prior to the occupation of units.

    3.3 In addition, on the same day, twelve third party appeals were submitted against the decision of the planning authority to grant planning permission. The appellants were concerned about the height of the proposed development and the predominant residential use which they said was contrary to the use envisaged in the Dún Laoghaire Rathdown County Council Development Plan 2004-2010 ("the development plan"), that is, employment generation. The planning authority made submissions on the third party appeals in a letter dated the 28th September, 2005. The following day, the applicant's agents, RPS Planning and Environmental Consultants ("RPS"), lodged their submissions on those appeals.

    3.4 On the 3rd February, 2006, the respondent issued notification of the appeals before it to the Dublin Transport Authority ("DTO"), the National Roads Authority ("NRA") and the Railway Procurement Agency ("RPA"), pursuant to s.28 of the Planning and Development Regulations 2001, inviting their comments. It received substantive responses from the DTO and the NRA. The RPA replied to say that it had nothing further to add to the comments made by the other two agencies.

    3.5 The NRA, in its reply of the 14th February, 2006, expressed its concerns in relation to the proposed development as follows:-

    "The Authority has concerns in relation to the capacity and operational effects on the M50/N31/N11 route. The Route from M50 along Leopardstown Road to Brewery Road to N11 is now a national road. The data received does not address the specific junctions nor the proposed new road/junction with the Leopardstown Road …

    The Authority considers that the application appears, inter alia, to be based on a significant reduction in traffic resultant from the completion of the M50 (section 7.2.5 Nov 2004 Muir and Associates Traffic Impact Statement). No evidence of this substantial assumption has been offered although the M50 has now been opened for c. 8 months."

    3.6 The DTO, in its response of the 15th March, 2006, was of the view that it must "be demonstrated that the development is sustainable in transport terms, with a clear indication being given of the assumed mode split between car and non-car modes and the basis for this assumption" and that over-development along the Luas corridor was undesirable. In this regard it stated it was concerned as to the scale of the proposed development. It further stated that a proposed development should demonstrate that it would not interfere with the upgrading of the Luas/metro line and that pedestrian movement should be provided for.

    3.7 The respondent appointed one of its planning inspectors to prepare a report on the appeals. A report was prepared dated the 3rd August, 2006. It recommended that planning permission be granted, subject to twenty nine conditions. At p.11 of his report the inspector dealt with the development plan policy. He noted that under the development plan the site was zoned "objective E" (i.e. to provide for economic development and employment). He continued that within an area so zoned, that residential, restaurant and shop uses would, however, be open to consideration and that they "may be permitted where the Planning Authority is satisfied that the proposed development would be compatible with the overall policies and objectives for the zone, would not have undesirable effects and would otherwise be consistent with the proper planning and sustainable development of the area". He found that in "objective E" areas, residential uses may be acceptable where the primary use, employment creation, was not jeopardised. At p. 23, in the section of the report headed "Assessment and Recommendation" he concluded as follows:-

    12.3 …Notwithstanding the Appellants concerns on this issue I consider that the general zoning of the site, the specific objectives for the Estate and other relevant employment policies would not presume in principle against a development...

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