High Court of Ireland Decisions

O'Nuallan v. Dublin Corporation [1999] IEHC 11; [1999] 4 IR 137 (2nd July, 1999)

BETWEEN

JUDGMENT of Mr. Justice Smyth delivered the 2nd day of July 1999

INTRODUCTION

1. Nelson's Pillar was built between 1808 and 1809. The General Post Office (designed by the distinguished Irish Architect Francis Johnston) was built in 1820. The statute of Lord Nelson was executed by Thomas Kirk R.H.A. (1781-1845) one of the few Irish sculptors of international renown. The Nelson monument was irreparably damaged in 1966 and ultimately required to be removed in its entirety for public safety reasons.

2. The formal dimensions of O'Connell Street were determined as early as the 1740's by the eighteenth century entrepreneur, Luke Gardiner, who developed Gardiner's Mall with terraces of elegant townhouses running from the grounds of the newly built Rotunda Hospital to Henry Street. This spacious thoroughfare was subsequently known as Sackville Mall and after 1922 was renamed as Upper O'Connell Street. In 1796 the Wide Street Commissioners decided to continue the street from Henry Street to the river in the construction of what is known as Lower O'Connell Street. The considerable width and spatial qualities of this street promoted its use as a place of public assembly and civic ritual. Its importance as a focus for national ideals can be seen in its choice as the site of commemorative monuments to historic figures such as Daniel O'Connell, CharlesStuart Parnell, William Smith O'Brien and James Larkin. With the exception of the comparatively recently executed Anna Livia Fountain, every other monument on O'Connell Street has a pronounced verticality of emphasis. The abiding perception of the street has traditionally been a serial progression of vertical elements of different heights - forming a central zone running from the river to the Rotunda - flanked by a continuous building perimeter forming the edges of the street. The oldest and most historic monument associated withO'Connell Street - the former Nelson's Pillar - was considerably higher than the peripheral buildings in the street. At one hundred and thirty-four feet high it was nearly two and a half times as high as the adjoining General Post Office. There is respectable architectural opinion for the view that the destruction of the Pillar seriously altered the architectural coherence and ceremonial character of thestreet-scape. The success of the compositional relationship between Nelson's Pillar and the surrounding buildings was not accidental. Francis Johnston was deeply involved in the design of both the Pillar and the General Post Office. The siting and the dimensional co-ordination of both these monuments was under his control. As Architect of the Board of Works from 1805 until the 1820's he was responsible for developing the design of the Pillar from an original sketch made by WilliamWilkens. Several drawings of the Pillar - some without Nelson's statue - made by Johnston have survived. He in fact supervised the construction of the Pillar and the execution of the statue.

3. In or about the month of July 1997 the Respondent through its then Lord Mayor Councillor John Stafford initiated a study which came to be known as the O'Connell Street Integrated Area Plan (hereinafter referred to as "the I.A.P.) The I.A.P. was prepared and completed, and launched by the Lord Mayor on 27th February 1998. On the 31st March, 1998 the I.A.P. was submitted to the Department of the Environment and Local Government which the Minister for Housing and Urban Renewal approved of by letter dated 17th February, 1999. The I.A.P. provides for the reinstatement of a monument at the site of the former Nelson Pillar at the junction of O'Connell Street and Henry Street. The proposal was to reinstate a monument at the said site in order to foreshorten the length of O'Connell Street and to give a focal point to the street in the city. The I.A.P. indicates (at page 98) that:-

"The present shortfall in the definition of space at the junction of O'Connell Street and Henry Street will be addressed by public competition".

4. A number of illustrations of the proposed monument are to be found throughout the I.A.P.

THE COMPETITION

5. A competition for a new monument for O'Connell Street was initiated on the 8th of July 1998. The competition was promoted by the Respondent and was organised and administered BY the Royal Institute of the Architects of Ireland. Two hundred and five entries were received and the winning entry was announced to the public on 25th November 1998. There were both rules and regulations governing the competition. The design parameters provided for in the competition rules are of importance and are as follows:-

"1.1 Design Parameters

v The objective of the competition - strictly in urban design terms - is to reinstate a monument which has a pivotal role in the composition of the street, fixing the central points of the street beside the General Post Office, enclosing the vistas from north , south, east and west.

v The monument should be a new symbol and image of Dublin for the Twenty-first century (such as, for example, the Eiffel Tower is for Paris and the Statue of Liberty is for New York).

v The area zoned for this monument is the former site of the Nelson Monument at the junction of Upper and Lower O'Connell Street on the north/south axis and Henry Street and North Earl Street on the east/west axis.

v The monument shall have a vertical emphasis, an elegant structure of twenty-first century contemporary design, which shall relate to the quality and scale of O'Connell Street as represented by the late eighteenth century and early twentieth century architecture and civic design.

v This is a monument for the twenty-first century and beyond. The chosen materials shall be appropriate for a civic location, durable, adaptable to new technologies and require low maintenance in the future.

v Competitors are expected to familiarise themselves with the O'Connell Street Integrated Area Plan."

6. The Rules provided for a two stage competition and for the presentation of a design package and also included a programme which made specific reference to "planning part X", which it is common case, refers to Part X of the Local Government (Planning and Developments) Regulations, 1994 (S.I. No. 86 of 1994), (hereinafter referred to as "The 1994 Regulations"). The Applicant was one of the competitors. He did not succeed in passing the first stage of the competition. Accordingly he was not considered at stage two when a jury (by common agreement referred to as being autonomous) chose the winning entry at the end of the stage two process and so reported to the Respondent. The matter was put before the Planning and Development Committee (a statutory committee of the City Council) on 12th January 1999 and the Council were informed that it was proposed to follow the Part XI procedure of the 1994 Regulations in relation to the planning process for the construction and erection of the new monument forO'Connell Street. The matter was advertised in the Irish Times and Irish Independent newspapers on the 13th of January 1999. A planning notice was placed on the site of the proposed development. On 21st January 1999 a weekly planning list together with a notification of the particulars in respect of the proposed monument was circulated under the provisions of Article 132(3)(c) of the 1994 Regulations but a challenge has been raised as to whether this article was fully complied with. Pursuant to Article 133 of the 1994 Regulations, the Respondent made available for inspection by members of the public a document describing the nature and extent of the proposed development by the Respondent, which document outlined the principle features of the new monument proposed to be constructed by the Respondent. The document was available for inspection for period of one month from 13th January 1999. The Respondent received some observations and submissions in regard to the proposal and pursuant to Article 134 of the 1994 Regulations a Report was prepared by MrGleeson, a Deputy Assistant Planning Officer which recommended the construction of the monument. The said Report was signed by Mr John Fitzgerald, the City Manager and Town Clerk and was submitted to the elected members who by majority noted the Report. The decision to proceed with the project was made on 1st March, 1999 as extended at a further meeting on 8th March, 1999. The Managerial Orders referable to the project are those exhibited as "CMN6" in the Affidavit of Ciaran McNamara sworn on the 11th May, 1999.

LEGAL PROCEEDINGS

7. On 23rd April 1999 the Applicant sought and obtained leave to apply by way of application for Judicial Review for the reliefs set forth at paragraph D of the Statement and on the grounds set forth in paragraph E of the Statement required to grant an application for Judicial Review.

8. The first of the several complaints of the Applicant was that there were a number of illegalities associated with the Architectural competition. In particular that the winning entry does not relate to the scale of O'Connell Street as represented by the late eighteenth century and early twentieth century architectural and civic design. Provisions of the design brief hereinbefore referred to were also subject to Article 2(1) of the competition regulations which provided that "The assessment shall be carried out in accordance with the requirements of the briefing information and competition regulations provided to the competitors". The requirement that the new monumentshall relate to the quality and scale of O'Connell Street as represented by the late eighteenth century and early twentieth century architecture and civic design was of defining importance. The inclusion of this criterion in the design parameters for the new monument meant that persons entering the competition reasonably concluded that their proposed designs were obliged to relate to all elements of the quality and the scale of thestreet-scape as it stood at the date of the competition. The former requires a qualitative relationship between the proposed design and the existing factors whereas the latter required a quantitative relationship between the proposed design and those factors. The Applicant contended that a reasonable entrant for the competition was entitled to conclude that this latter criterion addresses the issue of the height of the new monument. It's height, where it was required to relate to the buildings onO'Connell Street it is contended must be similar to the height of the said buildings. I do not accept this contention, but at the same time I acknowledge that the question of scale is a mandatory provision in the terms of the competition rules because of the expression "shall relate" in the design parameters and to have any meaning it must mean that some relationship of height, scale and other dimensions shall exist between the new monument and the buildings of eighteenth century and twentieth century architecture and civic design should be adhered to. While noenvironmental Impact Statement was prepared (a matter to which I will return later) there were nonetheless a number of listed buildings on the street which are described in appendix A to the I.A.P. In the matter of architecture there were two affidavits filed in the proceedings, one on behalf of the Applicant by Mr. Sam Stephenson, Architect and the other by a Mr. Arthur Gibney, Chartered Architect for the Respondents. Neither of these witnesses were cross-examined on their affidavits. It seems clear to me that the proposed new monument was intended to affect buildings of architectural or historic interest on O'Connell Street and its environs. It is not expressly agreed that the General Post Office is the most significant building on the street, but in fact there is no real significant divergence of architectural opinion in this regard. It is a building of grand proportions and is approximately two hundred feet long and three stories high and clad in stone. It is stated to be "of a strongly horizontal design and its form and scale set the present unified character of the street which was substantially rebuilt after 1916". Professional architectural opinion on the replacement of the Pillar is divided. That of the Respondent as expressed by MrGibney was that the effect that the compositional principle of using high vertical features such as towers or column or monuments as a dramatic foil to horizontal buildings masses is one of the most common patterns encountered in historic examples of urban design. In his view, the material proposed and the slenderness of the intended pole clearly identify the monument as a sculptural form and not a building intervention which could visibly clash with the fabric of thestreet-scape. The Applicant on the other hand has adduced evidence that as any two objects can be deemed to relate to each other, in architectural terms, where a new development is obliged to relate to the scale of other buildings such relation cannot be that which comes about merely because of the proposed coexistence of the new monument and the pre-existing buildings. That more than mere coexistence is contemplated by a design brief whichrequires a development to relate to the scale of other existing buildings. The contention of the Applicant was that the winning entry to the Respondent Local Authority's competition being approximately four hundred feet high (over twice the height of the former Pillar) does not and cannot relate to the scale ofO'Connell Street as represented by the late eighteenth century and twentieth century architecture and civic design. In the course of the hearing evidence was given by the Chairperson of the jury that the concept of the word scale, in the design brief of the intended monument, could be in certain circumstances as high as 1.2 kilometres. The argument being made was that although the jury was autonomous the Respondent was entitled to proceed with or abandon the project and therefore the final decision rested with the Respondent who, having set before the competitors certain design parameters, were obliged to see that the competition, from its inception to its conclusion, was carried out in accordance therewith. That the Respondent failed to do this by reason of their non-adherence to the mandatory provision in the design parameters that the monument should relate to the quality and scale of the eighteenth century and twentieth century architecture and civic design was of such a character that no reasonable planning authority could accept or endorse the decision of the jury as it (the chosen entry) failed to meet the design parameters of the rules. A number of other points were raised by MrMacEochaidh for the Applicant concerning the competition but on these evidence was not conclusive in favour of the Applicant. The fact that the competition regulations provided for in Article 2 that the jury shall, at the end of stage one, select a minimum of five entries for stage two submissions does not, in my view, obligate them so to do and in this instance the expression "shall select" is directory and I am satisfied that there was nothing improper or unreasonable in the actions of the jury and those charged with the implementation of the competition rules in this regard. Furthermore I am satisfied that the competition was conducted anonymously and the assessors did not change or abandon the rules without notice in this regard at all. Furthermore, I do not consider that the assessors or jury in any way departed from the competition rules or regulations in considering a monument of a design which had no public access or viewing platform or designs incorporating any such element. The competition regulations (Article 15)provided that in the event of a dispute arising out of the competition the matter shall be dealt with by an arbitrator appointed by the President of the R.I.A.I.. The Respondents are not to be faulted in failing to seek the appointment of an arbitrator. This was open to the Applicant if he so wished. He did not do so before proceedings brought and in my opinion this complaint of the Applicant cannot sustain any of thereliefs claimed.

NON-COMPLIANCE WITH THE 1994 REGULATIONS

9. The Respondent Local Authority utilised the statutory procedures set out at part X of the 1994 Regulations when it decided to propose that a monument be erected. Article 132 (1) of the regulations requires the Local Authority to send notice (as provided for by Article 132 (2)) of the proposed development to certain prescribed bodies. In particular Article 132 (3) (c) of the regulations provides that"where it appeared to the local authority that the proposed development would affect any ... object of historical interest or any building or artistic, architectural or historic interest" the notice shall be sent to named bodies. The proposed new monument, I am satisfied, would effect and will effect objects of historic interest and/or buildings of artistic, architectural or historic interest. This view is expressed by Mr Stephenson in paragraph (8) of his affidavit as follows: "I have no hesitation whatsoever in saying that the domination of this street by the new monument will directly and dramatically affect the buildings on the street. In particular, the effects on the nearby historical buildings will be significant". MrGibney's affidavit at paragraph (10) states "Its height will have a considerable impact on both its immediate site and the central city area". The Local Authority notified inter alia one Ms Linda Patten of the National Parks and Wildlife of Duchas, 5th Floor, Hill Samuel House at 25/28 Adelaide Road, Dublin 2 and notwithstanding that may not have been the Minister for Arts, Culture and the Gaeltacht under the Heritage (Transfer of Functions of Commissioners of Public Works in Ireland) Order, 1996 (S.I. No. 332 of 1996) I am nonetheless satisfied that there is compliance with the spirit of the regulations if not with the letter and that the non-compliance is of a technical nature. Furthermore, I am satisfied that such bodies as were notified and who were invited to make representations did so and that same were incorporated in the report placed before the elected members of the Respondent when they ultimately made the decision to note the report of the manager to proceed with the project. Accordingly I do not think any of the prescribed bodies were in any way deprived of the opportunity which is intended to be given to them under the 1994 regulations for making such observations or submissions as were considered appropriate. However the provisions of Article 132 (2) have not in my opinion been adhered to. The Article provides for notice of proposed developments to be given to certain bodies but the notice that is to be given is to include certain matters which I am satisfied they were not given, i.e.,"132 (2) (b) ... a copy of the plans of the particulars of the proposed development made available for inspection by members of the public in accordance with Article 133." In my opinion this is a mandatory provision under the 1994 Regulations and was not complied with and is not of a technical or peripheral nature such as can be excused or overlooked in the instant case. The fact that the information given to the prescribed bodies indicates the location, nature and extent of the proposed development does not excuse the non-compliance with the provisionhereinbefore cited from regulation 133(2)(b).

Which Part of the 1994 Regulations Apply:

10. Notwithstanding the provisions of the competition rules that Part X of the Local Government (Planning and Development) Regulations, 1994 would apply, I am satisfied that no decision was actually taken then or before any of the competition was held as to which part of the Regulations would be appropriate. In following through the public announcement of the decision of the jury of the winning entry which was announced on the 25th November, 1998 I am satisfied that the true position is as set out in paragraph (4) in the affidavit of MrGleeson sworn on 11th May, 1999 which is to the following effect:-

"4. I say that following the public announcement of the winning entry in the design competition for the new O'Connell Street Monument, the Respondent had to decide on the appropriate planning route for the project. I say that having considered the criteria contained in the European Communities (Environment Impact Assessment) Regulations 1989 governing the requirement for an Environment Impact Statement I was satisfied that the project was not covered by either Part I or Part II of the first Schedule of the said Regulations.

I say that, having considered the requirements of the Part IX procedure under the Local Government (Planning and Development) Regulations, 1994 I was also satisfied that the project did not come close to any of the thresholds that are specified in Part II paragraph 10(b) of the said 1989 Regulations and I concluded that it was not necessary to apply the procedures of Part IX. I say that having determined that the Part IX procedure was not required, I decided that Part X was the appropriate procedure to adopt and apply in respect of the project."

(emphasis added)

11. While this matter was dealt with in cross-examination and on Affidavit and was the subject of specific submissions by Mr Rogers on behalf of the Respondent I am satisfied that the true state of facts is as stated by Mr Gleeson in his affidavit. This being so I am satisfied that no Managerial Order delegating any function of a character such as would enable Mr Gleeson to have made a decision as to which part of the 1994 Regulations were applicable was made in the instant case. In my opinion the presentation by the City Manager and Town Clerk (who adopted Mr Gleeson's report) and placed same before the Respondent City Council for notation, was not a decision as to which part of the 1994 Regulations was appropriate either expressly or inferentially. The decision in this regard had been made by Mr Gleeson some considerable time before any report was presented to the Respondent City Council in the person or through the office of the City Manager and Town Clerk. As to which part of the Regulations is to operate is a matter of considerable importance because there is a degree of autonomy under Part X that is not available under Part IX of the Regulations which is more restrictive as to the fashion in which the local authority can give effect to proposals they may wish to implement. Furthermore, and most particularly, the decision as to whether an Environmental Impact Statement is necessary is under Part IX Article 117 the prerogative of the Minister. The fact that the intention to proceed with the project may have been 'common knowledge', or that the Minister may have been circulated (by way of notice) of the proposal under Part X Article 132(2)(a) or approved of the project under the Urban Renewal Act, 1998 cannot deprive the Minister of his entitlements under Part IX of the 1994 Regulations. Before making any determination on this question of the delegation, it is of importance that the general background to the question of environmental impact statements and assessments should be considered.

ENVIRONMENTAL IMPACT STATEMENT

12. In the present case the directive of the Council of Europe (85/337-EEC) of 27th June, 1985 is the first matter for consideration. While it is true to say that many of its objects in the recitals are directed to projects that have or are likely to have a detrimental or adverse effect on the environment, the Council Directive is not to be construed narrowly indeed, thejudgment of the European Court in Aannemersbedrijf P.K. Kraaijeveld BV eav Gedeputeerde Statn van Zuid Holland (24th October, 1996) notes that the wording of the Directive indicates that it has a wide scope and a broad purpose (paragraph 31) (and also paragraph 39). The scope of the Directive is not to be curtailed or diminished by looking only at its recitals. Article 1 paragraph 1 of the Directive provides that"This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment". Article 2 further provides that "Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects".Paragraph 3 of Article 2 further provides that "Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive". Article 3 provides that the Environment Impact Assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:-" ...... material assets and the cultural heritage" It is not necessary for the purpose of this case to carry out a detailed analysis of the Directive, suffice it to say that in Annexe II Section 10 projects which are the subject to Article 4(2) include infrastructural projects and in particular urban-development Projects. Annexe III of the Directive which is expressly referable to Article 5(1) embraces in paragraphs 2 and 3 in particular, the type of information to be incorporated in an Environmental Statement and insofar as this case is concerned it includes a description of the aspects of the environment likely to be significantly affected by the proposed project, including the architectural heritage. Arising from the provisions of the Directive the appropriate Regulations applicable in this jurisdiction are to be found in the European Communities (Environmental Impact Assessment) Regulations, 1989(S.I. 349 of 1989) (hereinafter referred to as "The 1989 Regulations") and the Local Government (Planning and Development) Regulations, 1990 (S.I. 25 of 1990) (hereinafter referred to as "The 1990 Regulations").

13. In my opinion the provisions of the Directive are applicable in the instant case and it does not lie with the national court to cut down, the broad scope of the Directive and merely to confine its application to projects which have an "adverse effect". The matter of "adverse effects on the environment" referred to in both thejudgment in the Kraaijeveld case (paragraph 15) and in the 1989 Regulations Act 10 amending S.78 the Local Government (Planning and Development) Act 1963 by insertion of subsection "(2)c" - neither reference is a warrant to delimit the Directive. Argument was advanced as to whether the project, even if it were one in respect of which the Directive should apply, came within the area of discretion in which a decision may be made as to whether a proposal should or should not be the subject of an Environmental Impact Statement. MrGleeson in the course of his evidence averred to the fact that he gave consideration not only as to whether Part IX or Part X of the 1994 Regulations was the appropriate course to adopt, but more particularly in considering the question of the Environmental Impact Statement he considered both the project from the point of view of being within the terms of the requirements of the Regulations of 1989 and 1990 to which I have referred and also gave particular consideration as to whether the development fell below the threshold that mandates the production of an Environmental Impact Statement.

14. I am satisfied that, taking into account the provisions of the Directive, the Regulations of 1989, 1990 and 1994 that there is an obligation on decision-makers to require the carrying out of an Environmental Impact Statement in accordance with the Directive if a particular project is likely to have significant effects on the environment by virtue of its nature, size and location, notwithstanding the fact that this particular project falls below the threshold established in the 1989 Regulations (First Schedule Part II class 10). In the instant case the proposal of the Respondents is an urban development project and will be part of the infrastructure of Dublin City and is well below the area thresholds as set out in the 1989 Regulations. However, it is a project which is likely to have, and is intended to have, significant effects on the environment and in those circumstances the Respondent, in my judgement, is required to cause an EIS to be prepared in accordance with the Directive and the Regulations

DELEGATED POWER

15. Even if I am incorrect in the view that I have formed concerning the necessity for an Environmental Impact Statement, it is a very important matter in a case such as this and the attention of the Court has been brought to a decision of Mr Justice Hopper in the High Court in England -Regina -v- St Edmundsbury Borough Council ex parte Walton, the Times 5th May, 1999. In issue in that case was - who could take decisions under the Directive? It was held that an officer of the local authority was not authorised to decide whether a proposed development would be likely to have significant effects on the environment unless formally delegated to do so by the local authority. On the basis of his decision Hopper J. pointed out that the decision whether or not to require an applicant to submit an EIS was an important one. With this latter observation I am in complete agreement. In the instant case the decision as to whether to proceed under Part IX or Part X of the 1994 Regulations is a decision of great seriousness and is of a character and nature such as should have been the subject of a Managerial Order by the Manager or by a person duly delegated with powers to make such a decision. This did not occur in the instant case. The decision as to whether to proceed under Part IX or Part X should have been the subject of a considered position by a properly delegated officer of the Respondent with powers to make a decision having particular regard to the obligations arising from the Directive and the 1989 - 1990 Regulations as well as those of 1994. This is not a decision of a simple routine administrative nature - it is one with profound consequences.

16. This bold beacon - which is to be the Millennium Monument is intended to be erected in the middle of the principal street of the capital of the country is intended to affect and is likely to have significant effects on the environment.

DELAY

17. The Applicant entered into correspondence with the Respondent initially by letter dated 29th October, 1998, the response to which was made by an undated letter but with the indication that the Applicant's enquiry to the City Manager had been referred to the City Architect for an appropriate response. No direct response appears ever to have been received from that source, though a certain amount of correspondence passed between the Applicant and the Royal Institute of Architects of Ireland. Correspondence was resumed by the Applicant with the Respondent on 23rd February, 1999 in which various matters were canvassed. While it is true that this latter correspondence was in part a response to the notification issued on foot of the activities of MrGleeson and Mr McNamara I am satisfied that at no stage did the Applicant acquiesce in the course being taken by the Respondent the decision which ultimately came to be made is made and which is challenged is that of March 1st, 1999 and it seems to me that the application brought by the Applicant to Court was brought in time and even if I am wrong in this, and a point of view was canvassed to the contrary as was by Counsel for the Respondent in the course of the hearing and I would nonetheless be disposed to accepting that the Applicant did apply for leavetimeously in all the circumstances and if necessary have exercised my discretion and extended the time limits under the rules.

CONCLUSION

18. Accordingly the Order of this Court will be in terms of the reliefs sought in Paragraph D of the Statement required to ground the application for the Judicial Review under items 1, 2, 3, 4, 5 and 8. However, as this is a matter of considerable importance to the Respondent it seems only just and proper that they should be given an opportunity to address matters as from the date of receipt of the decision of the jury anew, in the light of thejudgment of the Court and that the injunctive relief should cease to have effect on compliance therewith. The work of the Courts has to continue since the case came to an end and it has not been possible for me to give exclusive attention to the preparation of this judgment, as I would like to have done. Liberty to apply to either party will be an express part of the Order of the Court.