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Coonagh v. An Bord Pleanala [1998] IEHC 37 (26th February, 1998)
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[1998] IEHC 37
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Coonagh v. An Bord Pleanala [1998] IEHC 37 (26th February, 1998)
THE
HIGH COURT
JUDICIAL
REVIEW
1998
No. 18 JR
BETWEEN
BARRY
COONAGH
APPLICANT
AND
AN
BORD PLEANALA
RESPONDENT
AND
THE
IONA AND DISTRICT RESIDENTS' ASSOCIATION
NOTICE
PARTY
AND
DUBLIN
CORPORATION
NOTICE
PARTY
JUDGMENT
of Mr. Justice Declan Budd delivered on the 26th day of February 1998
1. The
Applicant and his wife purchased a commercial property known as "the Maples
Hotel" at 79/81 Iona Road, Glasnevin, Dublin 9 in or about 1994. The property
for many years previously had been run as an extended Bed and Breakfast with
approximately twenty-two bedrooms and a licence to serve alcohol. The hotel is
located on the northern side of Iona Road in a residential area in Glasnevin.
The houses were built in Edwardian times and in the 1991 Dublin City
Development plan the area has a land use zoning objective "A2" which is "to
protect and/or improve the amenities of residential conservation areas".
the
previous owners of the hotel had erected a number of signs on the property to
indicate that it was a commercial premises and had also installed some external
lighting to highlight these signs for night-time use. the Applicant and his
wife expended considerable sums on refurbishing the premises and indeed the
Residents Association concede that most of the changes to the hotel have been
beneficial and that the new owners have made great efforts to improve the
building and to work with the community and in providing meeting rooms etc. for
charitable and community organisations to the benefit of the community as a
whole. As part of the refurbishment programme the Applicant, who is by
profession a chartered surveyor, put up three signs on the external frontage of
the property. One of the signs was an "Hotel" sign and was a small box sign
which he says was a smaller replacement of the original "Maples" sign, which
was in place for about twenty-seven years. The other two signs were one sign
for Heineken Beer and the other a sign for Kilkenny Beer, both of which were
new and were erected since the purchase of the property. Both of these are
quite small signs. The following description of the signs appears in the
planning inspector's report to An Bord Pleanala:-
1. Sign
A - a Heineken circular sign, internally illuminated measuring 900 mm x 1000 mm.
2. Sign
B - a double sided illuminated box sign measuring 960 mm x 1350 mm with the
hotel's name on it.
3. Sign
C - a circular Kilkenny sign with an external spotlight on either side. The
sign measures 930 mm x 730 mm and is on the side elevation, fronting to Iona
Drive. The floodlights are on the front of the building on the Iona Road
elevation.
2. The
Applicant contends that the lighting is essential from a commercial point of
view and also for security reasons and for the safety of customers entering
and leaving the premises as the signs augment the other lights.
3. In
early 1997 the Applicant sought retention planning permission from Dublin
Corporation for signage, floodlights and security lights on the external facade
of the premises. An application for retention planning permission was
submitted on 22nd April, 1997. An objection to the application was lodged by
the Iona and District Residents Association; the objection was dated 1st May,
1997 and was received in the planning department on 6th May, 1997. The
objection was that the signage and lighting were excessive in the circumstances
that Iona Road has an Edwardian ambience and is predominantly residential.
4. A
planning officer, Patricia Hyde, inspected the premises taking into account the
objections from local residents. Her report dated 19th June, 1997 was made to
the Dublin Planning Officer. She described the signs and said of the
objections:-
"There
are a number of objections to the development - from the Iona and District
Residents Association and from local residents who feel that the signage and
spotlighting is excessive, given that Iona Road has an Edwardian ambience and
is predominantly residential. I have noted carefully the objections and
inspected the premises in the evening when it was dark. There was a neon
restaurant sign on the ground floor window - this is exempt from planning
control.
ASSESSMENT
The
signage and floodlighting is not excessive and given
(a) that
the hotel is long established
(b) that
there is a need to identify the premises as a commercial entity,
I
recommend that planning permission be granted for retention."
5. This
recommendation was accepted and the Planning Department of Dublin Corporation
granted retention planning permission number D3153 on 19th June, 1997.
6. The
Residents Association lodged an appeal against this decision of the Planning
Department on 18th July, 1997 with An Bord Pleanala. Both the Applicant and
the Residents Association made representations to An Bord Pleanala and a
planning inspector, George Hannigan, was duly nominated by An Bord Pleanala to
consider the appeal. The inspector issued his report dated 7th November 1997.
In his Report he sets out the history of the appeal and the views of the
Applicant, the objections from the Residents Association and the views of the
Planning Department of Dublin Corporation. I quote from his report:-
"THIRD
PARTY APPEAL
The
Third Party Appeal, dated 16th July, 1997, has been submitted by the Iona and
District Residents Association, and is summarised as follows:-
1. the
Glasnevin Maples Hotel sign is not in keeping with the Edwardian ethos of the
area and is contrary to the proper planning and development of the area.
2. the
Heineken and Kilkenny signs are contrary to the "A2" objective for the area
which is to protect, and/or improve the amenities of residential conservation
areas.
3. a
restaurant sign, in one of the ground floor front windows is intrusive and
damages the residential and environmental quality of the area.
4. the
Appellant quotes paragraphs 15.15.11 and 15.15.14 in support of the appeal and
contends that the signage is not in keeping with the residential Edwardian area
nor the restrictions imposed by Dublin Corporation.
5. the
alterations to the lighting and signage are the forerunner of an
intensification of usage of the premises.
APPLICANT'S
RESPONSE TO THE THIRD PARTY APPEAL
In
the response to the Appeal, dated 18th August, 1997, the Applicant makes
the
following points:-
1. The
only additional signs erected are signs "A" and "C". Sign "B" is a
replacement
sign for the original Maples sign.
2. The
restaurant sign is not part of this application.
3. The
signage is not considered excessive for a commercial licensed premises.
4. The
box sign is smaller than the one it has replaced (see postcard
attached).
5. The
vast majority of local residents have no objection to the signs.
PLANNING
AUTHORITY'S RESPONSE TO THE THIRD PARTY APPEAL
By
correspondence dated 15th August, 1997 the planning authority have responded to
the appeal and reiterate the views expressed in their original report.
Regarding the grounds of appeal, the following observations are made:-
1. The
proposed signs are relatively minor in scale and therefore are not considered
visually obtrusive. They do not detract from or diminish the quality of either
this facade or the streetscape.
2. The
Maples Hotel is a long established commercial use in the area and therefore it
is appropriate to identify it as such. The signs do not clutter the facade nor
are they out of scale with the building.
3. The
restaurant sign does not require planning permission.
4.
This
application relates to signage and lighting and therefore it is not appropriate
to comment on future potential uses in this appeal.
LAND
USE ZONING
The
subject site is located in an area with a land use zoning objective "A2" which
is 'to protect and/or improve the amenities of residential conservation areas'
in the 1991 Dublin City Development Plan.
ASSESSMENT
AND RECOMMENDATION
The
main issues involved in this appeal are the impact of the proposal on an "A2"
conservation area and the requirements of the Dublin City Development plan
regarding advertisements.
In
relation to advertising on business premises, paragraph 15.15.11 of the current
Development Plan states
'The
number of signs attached to a building should be limited to prevent an
impression of clutter and no sign should be excessively obtrusive or out of
scale with the building facade'.
Furthermore,
paragraph 15.15.14 and 15.15.15 states
'the
use of illuminating box fascias and illuminated projecting box signs will be
severely restricted, particularly when they are used indiscriminately in
relation to the shop front or building to which they relate (15.15.14)'.
All
advertising above ground level will be severely restricted in order to avoid
clutter and preserve the amenity of the streetscape on any building fronting on
Upper and Lower O'Connell Street, Westmoreland Street, College Green or any
conservation area, projecting signs affixed at any point above the ground floor
facade shall not normally be permitted.
In
relation to the current proposal, I consider the advertising signs:-
1. are
at ground floor level facade;
2. do
not, by reason of their number, scale and location, create visual
clutter;
3. are
pedestrian orientated;
4. do
not detract from the visual appearance of the building or the area in general.
This
hotel is a 'legally established' business in a residential conservation area.
It is a commercial venture which requires to be easily identified but not to an
extent where this identification (advertising signs) detracts from the
streetscape, the building itself or the area in general. I consider the
signage is visually acceptable on the streetscape and does not detract from
this residential conservation area. In relation to the floodlighting, this
site was inspected in the evening to ascertain the effect of the lighting on
properties in the vicinity of the site. The lighting on the front facade is
subdued and directed towards the brickwork, illuminating the building but
having little or no effect on neighbouring properties. Having read all the
reports on the file and inspected the site, I recommend that permission for the
proposed development be granted."
7. Thus
the recommendation of the inspector was in favour of a grant of permission for
retention of all three signs. This was supported by the views of the planning
officer in her report dated 19th June, 1997. In the letter dated 14th August,
1997 to An Bord Pleanala, the planning department of the Corporation reiterated
the view that the retention planning permission should be granted for the
reasons set out in the planning authority's response to the Third Party appeal
as set out in the Planning Inspector's report. On 17th November, 1997 An Bord
Pleanala decided to grant permission for Sign B and refused permission for
Signs A and C and the lighting. The hotel sign was allowed for the reasons set
out in the First Schedule:-
"having
regard to the nature of the business and to the dimensions of the sign, it is
considered that the sign does not seriously injure the amenities of the area
and is in accordance with the proper planning and development of the area."
8. The
two beer signs and the lighting were refused for the reasons set out in the
Second Schedule:-
"Having
regard to the zoning objective for the area, as set out in the current Dublin
City Development Plan, which objective is to protect and/or improve the
amenities of residential conservation areas (which objective is considered
reasonable), it is considered that the additional signs (Signs "A" and "C") and
the external lights seriously injure the amenities of the area and are contrary
to the proper planning and development of the area."
RELEVANT
LAW
"(3A) A
person shall not question the validity of ...
(b) a
decision of (An Bord Pleanála) on any appeal or on any reference,
otherwise than by way of an application for judicial review under O.84 of the
Rules of the Superior Courts (S.I. No 15 of 1986)....
(3B)
An
application for leave to apply for judicial review under the Order in respect
of a decision referred to in subs. (3A) of this Section shall
(i) be
made within the period of two months commencing on the date on which the
decision is given, and
(ii) to
be made by Motion on Notice to ...
(iii) ...
the Board and each party or each other party as the case may be to the appeal
or reference and
(iv) any
other person specified for that purpose by Order of the High Court,
and
such leave shall not be granted unless the High Court is satisfied there are
substantial grounds for contending that the decision is invalid or ought to be
quashed.
In
Scott
-v- An Bord Pleanala
unreported 27th July, 1994, Costello J. said at page 1:-
"It
seems to me that what the Court has to be satisfied about is that there are
substantial grounds for declaring the decision invalid. To comply with this
the Court must examine and assess the grounds on which the decision is
challenged. In this case the Court does not have to reach a decision on
disputed questions of fact. If I am satisfied that there are substantial
grounds, then I must allow the application. If I am not so satisfied then I
must refuse the application."
9. Having
considered the issues on this application for judicial review and the planning
matter he came to the conclusion that the two grounds submitted were not ones
of substance.
10.
Liberty was given to appeal to the Supreme Court on the grounds that the
decision involved a point of law of exceptional public importance and that it
was desirable in the public interest that an appeal should be taken to the
Supreme Court. The Judgment of the Supreme Court was given by Egan J. on 29th
November, 1994 ([1995] 1 ILRM 424). He said at pages 428-429:
"What
meaning should be given to the word "substantial"? I gain little assistance
from the views expressed by various judges in
O'Dowd
-v- N.W. Health Board
[1983] ILRM 186 and
Murphy
-v- Greene
[1990] 2IR 566 as they were dealing in the main with
allegations
of factual matters whereas the present case is concerned with a contention of
law. I fall back on a word which is so often used as a test in legal matters.
It is the word 'reasonable' and I suggest, therefore, that the words
'substantial grounds' require that the grounds must be reasonable."
11. He
then went on to consider the matter and said that he saw nothing in the
arguments advanced by the appellants to overturn the view of the learned judge
that there were not substantial grounds for contending that the decision was
invalid.
12. Another
case in which an application for leave to apply for judicial review fell to be
decided was
Byrne
-v- Wicklow County Council
.
Keane J. in a Judgment delivered on 3rd November, 1994 said that he approached
the matter on the basis that the applicants must show not merely an arguable
case but substantial grounds for contending that the planning permission was
invalid and he said that he had not the slightest hesitation in holding that
there were no substantial grounds. The decision impugned was a decision of the
county manager and Keane J. said it was plainly and almost inarguably a
decision in respect of which there was material before him entitling him to
arrive at the conclusion.
In
McNamara
-v- An Bord Pleanala
[1995] 2 ILRM 1025 at page 130
Carroll
J. said:-
"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 this argument at the next stage to those
which I believe may have some merit."
13. This
summary of the judicial function in adjudicating on an application for leave to
seek judicial review of a decision of An Bord Pleanala has frequently since
been cited with approval.
In
O'Keeffe
-v- An Bord Pleanala
[1993] 1 IR 39 the Local Authority had granted planning permission for a radio
mast at Tara. Local people appealed this decision to An Bord Pleanala. An
oral hearing was heard before a planning inspector who reported and
recommended, after setting out the relevant evidence in a substantial report,
against a grant of planning permission. An Bord Pleanala decided, despite the
recommendation of the planning inspector, to grant planning permission.
Costello J. in the High Court quashed the planning permission on the grounds
that there was no evidence on which An Bord Pleanala should depart from the
recommendations of the inspector. On appeal to the Supreme Court it was held
that the decision of Costello J. should be reversed as the proceedings were not
a form of appeal and a very high margin of deference should be paid to the
decision of An Bord Pleanala as an expert body set up to deal with planning
appeals. In view of the high margin of appreciation and tolerance to be given
to An Bord Pleanála the courts should not lightly interfere with the
decision of An Bord Pleanála. At page 72 Finlay C.J. said as follows:-
"I
am satisfied that in order for an applicant for judicial review to satisfy a
Court that the decision-making authority has acted irrationally in the sense
which I have outlined above so that the Court can intervene and quash its
decision, it is necessary that the applicant should establish to the
satisfaction of the Court that the decision-making authority had before it no
relevant material which would support its decision."
14. Counsel
for the Applicant submits that this matter is only at "the seeking leave to
apply stage". He accepts that there is a higher standard than in the usual
judicial review to be satisfied and that the principle as set out in the
O'Keeffe case applies. However, Counsel for the Applicant suggests that the
present case bears a superficial similarity to the matters set out in O'Keeffe
in that in both cases An Bord Pleanála rejected the recommendations in
the inspector's report, at least in the present case to the extent of refusing
retention permission for Signs A and C. Counsel contends that in the present
case there are distinguishing features. First, both the planning officer and
the planning inspector in their reports make succinct recommendations which are
overwhelmingly in favour of the grant of retention permission. He contrasts
this with the Inspector's report after the oral hearing in the Radio Tara case
in which the report of the inspector was over one hundred and twenty pages long
giving a synopsis of the considerable evidence given at the oral hearing and in
which there was much evidence given on both sides. Secondly, he points out,
that in this case there was no oral hearing unlike in the Radio Tara case.
Thirdly, Counsel submits that there was no recital of evidence contained in the
Inspector's report which would, in his submission, justify the Bord in arriving
at the decision to refuse retention permission for the two beer signs. He
submitted that both the planning officer and the planning inspector had
reported in favour of the grant of retention and that there was no scintilla of
evidence in favour of the refusal to grant retention permission. He submitted
that there were considerable policy considerations in the Radio Tara case
whereas in the present case much turned on the visual impact of the beer signs
and both the planning officer and the planning inspector had looked at the
signage and the lighting and had recommended retention permission. He argued
that the laconic decision of An Bord Pleanala appeared to be aberrant and
irrational.
15. Counsel
for the Respondent has referred to
O'Donoghue
-v- An Bord Pleanála and Tallon Properties Limited
[1991] ILRM 750 in which the planning issue was whether the bungalow in that
case constituted an over development of the site. At page 759 Murphy J. said:-
"It
seems to me that the indisputable data permitted both conclusions. The site
was delineated on the plan attached to the planning application and the
dimensions of the proposed four bedroomed bungalow were likewise indicated
thereon. It seems to me that that information alone would have entitled the
bord rationally to have formed the view that the proposed development would not
constitute over-development of the site notwithstanding the fact that others
whose views are entitled to respect took a diametrically opposite view. No
matter how vigorously one might disagree with the conclusion reached by the
bord it would be impossible to say that it 'flies in the face of fundamental
reason'."
In
McGarry
-v- Sligo County Council
1989
ILRM
768 McCarthy J., referring to the County Development Plan, said at page 772:-
"When
adopted, it forms an environmental contract between the planning authority, the
council and the community, embodying a promise by the Council that it will
regulate private development in a manner consistent with the objectives stated
in the plan and, further, that the Council itself shall not effect any
development which contravenes the plan materially."
16. No
one here is suggesting that the Local Authority is effecting a development
contravening the plan materially but it is quite clear that the Association in
making its appeal was bringing to the attention of the Bord the Edwardian
ambience of the area and that the zoning objective of the Corporation was to
preserve the amenities of the residential conservation of the area. It is
clear from the map and photographs in the Appendix, the submissions of the
residents Association and the zoning of the area and the provisions of the City
Development Plan with regard to the signs in a residential conservation area
that there was material on the basis of which An Bord Pleanala could reasonably
reach the decision made. Indeed Counsel for the Residents Association
submitted that the hotel in this residential location was a planning anomaly.
Furthermore the Applicant for planning permission should not be entitled to
benefit from an illegal development in respect of the two beer signs in the
sense that he cannot avail of the fact that they have been erected for some
years since they should not have been put up.
17. While
there was a reference in the Third Party Association's Appeal to the
alterations to lighting and signage being the forerunner of an intensification
of usage, it is clear from the Planning Authority's response that this was
irrelevant and no inference can be drawn that either the inspector or An Bord
Pleanala were improperly influenced by this immaterial consideration.
18. I
conclude that there was ample material before An Bord Pleanála on the
basis of which a perfectly rational decision could be made to refuse retention
permission in respect of the two beer signs. Accordingly, I find that there
are no substantial grounds for contending that the decision is invalid or ought
to be quashed, or that
1. the
decision of An Bord Pleanala was unreasonable; or
2. that
the Bord was influenced by ultra vires considerations, such as prospective
future intensification; or
3. that
the Bord failed to consider the long history of the lighting on the facade of
the hotel; or
4. that
the Bord failed to take account of the constitutional rights of the Applicant; or
5. that
the Bord ignored the reports and recommendations of the planning officer and
the inspector.
19. Accordingly,
despite sympathy for the Applicant, I am coerced in to refusing leave to apply
for judicial review as there are no substantial grounds for contending that the
decision is invalid or ought to be quashed.
Authorities
referred to in judgment
:
20. Byrne
-v- Wicklow County Council, unreported 3rd November, 1994
21. McGarry
-v- Sligo County Council [1989] I.L.R.M. 768
22. McNamara
-v- An Bord Pleanala [1995] 2 I.L.R.M. 125
23. Murphy
-v- Greene [1990] 2 I.R. 566
24. O'Dowd
-v- North Western Health Board [1983] I.L.R.M. 186
25. O'Keeffe
-v- An Bord Pleanala [1993] 1 I.R. 39
26. O'Donoghue
-v- An Bord Pleanala [1991] I.L.R.M. 750
27. Scott
-v- An Bord Pleanala, unreported 27th July, 1994
28. Scott
-v- An Bord Pleanala [1995] 1 I.L.R.M. 424
© 1998 Irish High Court