Wexele -V- an Bord Pleanála

Irish Environmental Law Association

Judgements of the Superior Courts in the period from December 9th, 2009 to February 22, 2010.

Niall Handy B.L.

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Wexele -v- An Bord Pleanála and Dun LaoghaireRathdownCounty Council

[2010] I.E.H.C. 21

High Court decision of Charlton J., 5th February 2010

Planning law – Judicial Review - Fair procedures – Is an applicant entitled to submit detailed replies to third party submissions–Matters for consideration upon deciding appeal – Proper Planning and sustainable development - Can appeals board take into consideration matters not mentioned in development plan.

Factual background

By decision of 14th July 2008 the applicant company was refused permission by the Respondentfor development consisting of 80 apartments and 2 retail units, and associated parking, on the site of a surface car park at Crofton Road, Dun Laoghaire, facing the harbour, used exclusively by staff and patients of St Michaels Hospital. The site had been purchased from the hospital by the applicant company in 2006 and the hospital continued to use the car park facility for 90 cars on a caretaker’s agreement with the applicant company, which could have been revoked at any stage.

Permission was refused on three grounds, including:visual amenity;siting, design and layout; and the loss of car parking spaces which would impact on traffic congestion and run contrary to proper planning and sustainable development.

The applicants sought an order of certiorari in respect of the decision as to car parking, a declaration that this decision was beyond the powers of the respondent, an order severing this reason from the decision and that the decision be amended accordingly, and an order remitting the matter to the board for reconsideration. The grounds on which the relief was sought were as follows. Firstly, after permission had been refused by the planning authority, certain third parties submissions were sent to an Bord Pleanála. The applicant complained 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 was 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.

Thirdly, the applicant argued 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 was also argued to an error of law that the proposed development would result in the under provision of car parking space in the area. Finally, it was 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.

Fair procedures

Charleton J. began by citing authorities forthe accepted position that the question of what constitutes good planning is one left for those expert in the field and within the context of an examination of plans and relevant points made by interested parties on what is proposed. Turning to the question of fair procedures, the court then quoted Murphy J. from State (Haverty) v. An Bord Pleanála, [1987] I.R. 485 at 493, where in the context of an argument that a person making a detailed observation on a planning appeal should have been allowed to make a further observation by a way of a response to further submissions from an interested party, Murphy J. stated that the applicant had already submitted detailed professional arguments to the planning authority and had access to all submissions on the planning file before lodging an appeal. While a developer might want to make detailed responses to each and every submissions, there had to be a limit to the amount of responses and the substance of the application was already fully before the Board. In those circumstances the matter had to be brought to a conclusion unless there was a material conflict of evidence before the Board, which could only be resolved by oral hearing into the matter.

Charlton J. went on to quote from State (Genport Limited) v. An Bord Pleanála, High Court, Unreported 1st February 1982, where at p. 8 of the unreported judgment Finlay P. stated:-

“I am satisfied that as a matter of general law An Bord Pleanála carrying out a quasi judicial would have an obligation to take reasonable steps to ensure that every party interested in any application before it should be aware of the submissions or representations made by any other party: should have a reasonable opportunity of replying to them; and should have a general reasonable opportunity of making representations to the board”.

The Court then turned to the applicable legislative scheme and traversed the relevant sub-sections of section 34 of the Act to highlight how the applicant would at all times kept be aware of submissions received in respect of the subject application. Applying the law to the facts before him Charleton J. found there was no breach of fair procedures because the real substance of the application was already before An Bord Pleanála, who were the quasi-judicial body with the necessary expert knowledge to decide upon the application.

The following is also of note from the judgment:

“An argument has been advanced by the respondent that since s. 131 of the Act, in effect, gives a discretion to An Bord Pleanála, that it is only if that discretion were exercised in such a way as to be unreasonable, in the sense of flying in the face of fundamental reason and commonsense, that the court should ever interfere with the Board’s decision. I have serious doubts about this submission advanced on behalf of the Board within the context of s. 131. Rather, it seems to me that s. 131 sets up an objective standard.The interests of justice are best met by selling the comments of an interested party where the Board receives a novel submission on appeal that, reasonably construed, might affect its decision to grant or refuse planning permission or to impose a condition, and where that observation is not in substance already part of the papers on the appeal which had been notified to the complaining party.

22. Here, that test is not met. All of the substance matters in complained about in the affidavit of Tom Walsh dated 14th January, 2010 as being submissions which were sent to interested statutory bodies but not to this applicant were already the subject of a comment by the appellant. And, further, all of the points had been made by the bodies consulted under the Act by the planning authority, in the inspector’s report or in third party observations already received by the local authority or in the planning file of the local authority that can be accessed by the applicant for development once an appeal to An Bord Pleanála is taken.

23. It is correct that lengthy submissions were received from residents after the initiation of the appeal and that these were sent for observation to these interested public bodies, but not to the applicants. None of these observations, no matter how one would construe them, related to the closure of the hospital car park. In so far as they focussed on other issues as to the proper planning and development of the area, they were points already under investigation before the local authority and had been fully commented upon in the inspector’s report. The relevant question that should be asked in the context of a complaint of an unfair procedure is whether an appellant knew the points that might reasonably move An Bord Pleanála to grant or refuse planning permission, or to impose conditions, when it made its appeal or whether, on the other hand, an injustice has been perpetrated through a new and objectively significant important point being brought into the equation of which they had no notice? No new and important point was brought into this appeal. The applicants had a full opportunity to make any reasonable or relevant point that they choose to pursue.

Car parking issue

The car park site in question had been designated as underdeveloped in the Dun Laoghaire Urban Structure Plan 2004. It is noteworthy that in his report to the Board, the planning inspector was highly critical of the planning authority’s use of the development control process to regulate its priorities for the subject site. The inspector stated in his report to the Board that the Urban Structure Plan 2004 inevitably gave the impression that the planning authority was disposed toward development on the site in question. However, notwithstanding the lack of identification of parking for the hospital as a priority in the development plan, the inspector also felt the car parking facility was essential to the general operations of the hospital and that the removal of upwards of 100 spaces would be detrimental to those operations. The Board agreed with that position.

The Court ultimately accepted that notwithstanding that the site had been flagged as suitable for development in the Dun Laoghaire Urban Structure Plain 2004 and that there was no mention of preserving car parking spaces for St Michael’s Hospital in its Development Plan, An Bord Pleanála was entitled to consider the issue of parking in the context of the proper planning and sustainable development of the area. The Court found that upon an objective, common sense analysis it was clear that the removal of upwards of 100 car parking spaces from the hospital would result in increased traffic congestion and parking problems in the immediate vicinity, for six days a week and possibly seven. These were matters to which the Board could fairly take into consideration. In all the circumstances the Court held An Bord Pleanála had not actedultra vires in taking the car parking issue into consideration and refused to quash the decision of the Bord and therefore to remit it for its consideration. The judgment did not consider circumstances in which a decision might be remitted to the Bord.

Abbeydrive Developments Limited v KildareCounty Council [2010] I.E.S.C. 8

Supreme Court judgment by Kearns P.

Planning Law – Judicial Review – Default planning permission – Directive 85/337/EEC –Environmental Impact Assessment - Whether deemed decision contrary to European Law in absence of appropriate assessment

European Law – doctrine of prohibition on inverse direct effect – whether Respondent could rely on its own omission to resist application for default development consent

Practice and Procedure –Rules of the Superior Courts, O.84, r.22, r.26 – Final orders - Res judicata – Whether affected party not on notice of proceedings entitled to make submissions

Background

The applicant/appellant applied for planning permission to build houses on a site in Ballymore Eustace, CountyKildare in 2002. The respondentplanning authority made no decision within the eight week period permitted by section 34 of the Planning and Development Act, 2000. The applicant/appellant in judicial review proceedings claimed to have acquired the right to a planning permission by default by virtue of the provisions of sub-section 8 of that section. The respondent opposed the application on two grounds. Firstly that the application was one for a permission which, in terms of the development plan, would not normally be granted. Secondly, that the application did not comply with the requirements of the relevant regulations.

The High Court (Murphy J) in a judgment of 29th November 2005 rejected the claim. He held that the application fell into a category of development which was "open to consideration”. In his view, it was a permission which, according to the terms of the Development Plan, would not normally be granted, though the planning authority had discretion, and therefore the power, to grant or refuse permission. For that reason he held that default permission could not arise. The applicant appealed that decision to the Supreme Court.

The central point in the appeal was the High Court’s decision that default permission could not arise in circumstances where the planning authority maintained a discretion to grant or refuse permission. The Supreme Court allowed the appeal on the grounds that where a planning authority hasdiscretion as to whether or not to grant a permission, i.e. without having to invoke the material contravention procedure specifically provided for in the legislation, such a decision was within the viresof the planning officials and therefore was capable of being deemed made in circumstances where the planning authority failed to meet the time limits identified in section 34 of the Planning and Development Act 2000. Endorsing the views expressed by Clarke J. in Maye v Sligo Corporation (unreported 27th April 2007), Fennelly J. therefore held that the High Court was wrong to extend the circumstances in which a default permission will not be granted beyond those envisaged by the legislature, to a category of cases where the discretion to grant or not was vires the planning authority. The Supreme Court thus set aside the High Court order.

Subsequent developments – application of An Taisce to make submissions post-decision
Following that decision of the Supreme Court of 22 July 2009, An Taisce became aware of it through news reports.An Taisce had been a party to the original application.The applicant originally applied for planning permission on 3rd December 2002 and that application was accompanied by an Environmental Impact Statement. The relevant procedures were applied and in due course An Taisce, as a prescribed body under the Planning and Development Act 2000, was notified of the planning application by the respondent by letter dated 12th December 2002. A submission was made by An Taisce and receipt of same was acknowledged. Thereafter An Taisce received no further correspondence from the respondent until 3rd January 2007 when it was informed that the planning application had been deemed withdrawn. An Taisce received a similar letter to the same effect from the respondent dated 26th June 2008. Those letters were totally misleading because the application had not in fact been withdrawn.

An Taisce was thus unaware of the legal proceedings until the Supreme Court judgment of 22nd July 2009 was reported in a national newspaper. In other words, An Taisce not only had not been notified of the default permission, but was never made aware of the existence of the proceedings in either the High Court or the Supreme Court.

In those circumstances on 18th August 2009 An Taisce sought to appeal the grant of planning permission to An Bord Pleanála. That appeal was deemed invalid because of it was outside the period permitted for the making of an appeal. An Taisce was strongly of the view that the grant of default planning permission in respect of a proposed development which was accompanied by an Environmental Impact Statement as required the EIA Directive,was contrary to European law. For that reason, An Taisce sought to be heard prior to the making of any final orders in the proceedings. While counsel on behalf of An Taisce expressly disavowed any intention to reopen the judgment, it sought to be heard with a view to trying to persuade the court that the issue it has raised is of such importance that it should be adjudicated upon and/or that an appeal by An Taisce to Bord Pleanála should be permitted as part of the Court’s order.

Counsel on behalf of An Taisce pointed out that the European Court of Justice had ruled by its decision in Commission v Belgium[2001] ECR 1-4605 that developments that are subject to the requirements of the EIA directive cannot be authorised by way of tacit permission or refusal. Given that the applicant had submitted an Environmental Impact Statement with its application for planning permission, the respondent did not have the vires to make the grant of permission without engaging in the assessment requirements established by the EIA Directive. Neither the Supreme Court nor the High Court had been made aware that the proposed development was subject to the provisions of the EIA Directive.

Counsel submitted that An Taisce had been deprived of its right to participate in the planning process or to appeal the decision deemed to have been made by the planning authority in this case and that was due to no fault on their part. An Taisce submitted that it had locus standi to be heard as an person “affected” for the purposes of Order 84, Rule 22 of the Rules of the Superior Courts, and under Order 84, Rule 26 particularly because it had not been served with the pleadings.

The application was strenuously resisted by Michael Collins SC on behalf of the applicants, who argued that the matter was now res judicata and that, in effect, An Taisce was seeking to revisit the judgment and disapply its conclusions by holding that a valid permission could not have been given by virtue of the failure to assess the EIS in this case. He argued that An Taisce was not a party “affected” by the decision in the sense that they were neither an applicant nor a body or party living in immediate proximity to the proposed development. He further argued that the point in question could, if it was a good point, have been taken by the respondent, Kildare County Council, but was not. In those circumstances, particularly when Kildare County Council itself could not raise the point in an appeal in circumstances where it had failed to take the point in the High Court, it was scarcely open to An Taisce, who had not participated at all in the proceedings, to make the point for the first time now in this Court.