Wymes v an Bord Pleanála

Judgment Date14 November 2003
Docket Number[2002 No. 196 JR] HC 275/04
Date14 November 2003
CourtHigh Court

[2002 No. 196 JR]

HC 275/04



Planning and Environmental law - Compulsory Purchase Order - Judicial review - Whether decision confirming CPO should be quashed - Relationship between planning and compulsory purchase process - Local Government (Planning and Development) Regulations 1994, Part X procedures

Facts: The applicant applied for judicial review seeking an order of certiorari quashing the decision of An Bord Pleanala to confirm a compulsory purchase order. The applicant contended that An Bord Pleanala had failed to have regard to the impact of the road on protected structures on the land; had acted in material contravention of the development plan; and had breached the requirements of natural justice in the manner in which it had conducted the inquiry. The respondent contended that the respondent had a very limited function in determining whether or not to confirm a compulsory purchase order and that the Part X of the Local Government (Planning and Development) Regulations 1994 procedure was the appropriate procedure for the applicant to agitate most of the issues raised in the application.

Held by O’ Caoimh J. in refusing the relief sought that the applicant had no basis to challenge the decision of the respondent based upon planning considerations which were properly the subject matter of the Part X procedure. The applicant had ample opportunity to address his planning concerns under the procedures provided for in Part X. The development of the road fell with the terms of the development plan and the applicant had not been deprived of an opportunity to advance his case.

Reporter: R.W.


JUDGMENT of Mr. Justice Ó Caoimh delivered the 14th November. 2003.


On the 17th June, 2002, Mr. Justice Herbert granted the applicant leave to seek orders of judicial review and in particular an order of certiorari quashing the decision of An Bord Pleanála hereinafter referred to as (the Board) to confirm a compulsory purchase order known as the County Meath Compulsory Acquisition of Land (Road No. 5) or 161 Rathnally to Balreask, Order 2000, notice of which confirmation was published in the Meath Chronicle dated the 23rd February, 2002. At the stage of granting the applicant leave to institute these proceedings an order was made suspending the operation of the scheme until the final determination of these proceedings.


The grounds upon which the applicant relies are as follows:


1. The lands owned and occupied by the applicant and over which part of the proposed road is to be constructed is a protected structure for the purposes of the Planning and Development Act, 2000 and the first named respondent erred in law and in fact in its consideration of the development in the context of such a designation. In particular, the first


named respondent failed to have regard to the impact of the road on the actual Bective Demesne which is in itself a protected structure pursuant to the Meath County Development Plan, and failed to have regard to the damage which such a road would cause to the protected structure.


2. The respondent erred in law in directing its mind to the legal protection which attaches to a protected structure, and failed to direct its mind to the fact that the road was purporting to seriously interfere with and destroy such a protected structure, and failed to refer to the legal protections and the statutory context which applies to such protected structures.


3. The respondent erred in law in holding that the demesne wall and the attendant grounds did not form part of the protected structure comprising Bective House, and failed to have regard to the statutory definition of a protected structure which includes its curtilage, and in those circumstances erred in law and in fact in the determination of the application.


4. The respondent erred in law in holding that the entrance gate and pillars to the estate would not be affected in circumstances where the main entrance to the estate which comprises of the estate wall, entrance gate and the gate pillars would be severed from the remainder of the estate by the proposed road and the essential unity of the overall lands would be severed.


5. The respondent failed to have regard to the protected structure known as “Clady Bridge” which is a protected structure for the purposes of the Meath County Development Plan. The first named respondent had no evidence as to the visual impact of works to be carried out to the Clady Bridge and could not have concluded that the character of the bridge would not be adversely affected in those circumstances.


6. The decision of the respondent is unreasonable in circumstances where with regard to the impact on Clady Bridge there was no evidence before them as to what the


impact on this protected structure would be in circumstances where there were no elevations or drawings showing the design proposed to Clady Bridge in the context of its extension.


7. The respondent failed to have regard to relevant considerations and/or had regard to irrelevant considerations.


8. The first named respondent erred in law and in fact in holding that the demesne wall did not form part of the protected structure. Equally the first named respondent erred in law in holding that the demesne, including the mature trees and attendant features, did not form part of the protected structure.


9. The respondent erred in law in failing to consider the alternatives proposed which would not interfere with the protected structure in all the circumstances, and in particular in circumstances where a significant and important protected structure would be destroyed arising from the confirmation of the proposed scheme.


10. The respondent erred in law in holding that the construction of a replacement wall in a different location in the context of severing part of a protected structure, one from the other, could be a mitigation measure in the context of the whole character of the demesne, which is a protected structure, being destroyed and important elements of the estate be severed one from the other.


11. The proposed development, namely the construction of the road which interferes with a protected structure is a material contravention of the second named respondent’s Development Plan, and the proposal in those circumstances isultra vires


the powers of the respondent.


12. The determination of the first named respondent isultra vires and void in circumstances where the first named respondent failed to comply with fair procedures and with natural and/or constitutional justice. In particular the first named respondent failed to afford the applicant an adequate opportunity to consider a number of significant reports


prepared immediately before the hearing commenced and which the applicant had no advance notice of sufficient to procure adequate responses to the issues therein contained. Despite a number of requests for an adjournment to consider these reports and in particular to obtain professional technical advice with regard to their contents the hearing did not adjourn, and the applicant, in those circumstances, was seriously prejudiced in the conduct of the hearing and curtailed with regard to the submissions that were capable of being made. In those circumstances the proposal related to the applicant’s dwelling house and was in the context of damage being caused to the applicant’s property. The first named respondent failed to conduct the hearing in accordance with fair procedures and failed to observe the applicant’s right to natural and/or constitutional justice.


13. The decision of the first named respondent is unreasonable and contrary to plain reason and common sense.


The application is grounded upon an affidavit of the applicant himself who states that he is the owner of Bective House which he says has been historically known as Bective Demesne and which lands comprise an 18th century house together with a demesne which is surrounded by an estate wall and a number of gate lodges which are all made into the gates and which comprise an area of in or about 200 acres. He says that the demesne is situated halfway between Navan and Trim and is bounded to the north by a continuous demesne wall, punctuated by a number of entrances, two stone wall entrances with gate lodges on the east side and one on the west side and he says that the lands are bounded by the River Boyne and the demesne itself and the house is essentially unaltered. He describes it as a fine example of an 18th century demesne landscape which he says is of great architectural, historical, literacy (sic), archaeological and visual significance.


The applicant contends that the house is a protected structure under the 1994 and 2001 Meath development plan and he says that this protected structure includes not only the


house itself but the curtilage to the house which he says includes the demesne and the demesne wall, entrances, gate lodges and other intended structures within the overall estate and he says that he was always advised that he could do no worse either to the house or to the demesne without the permission of Meath County Council in view of the special status which apply to the house and the demesne.


The applicant says that in or about the end of 1998 he was approached by officials of Meath County Council who indicated that they had decided on the route of the proposed road which would enter into the demesne and which would result in the destruction of a number of trees, and the demesne wall, and would sever part of the original demesne from the remainder. He said it had originally been planned to avoid the estate because he presumed it was protected under the Meath County Development Plan and...

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