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Irish Hardware Association v. South Dublin County Council [2000] IEHC 135 (19th July, 2000)
URL: http://www.bailii.org/ie/cases/IEHC/2000/135.html
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[2000] IEHC 135
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Irish Hardware Association v. South Dublin County Council [2000] IEHC 135 (19th July, 2000)
THE
HIGH COURT
1999
No.
270JR
BETWEEN
IRISH
HARDWARE ASSOCIATION
APPLICANT
AND
SOUTH
DUBLIN COUNTY COUNCIL
RESPONDENT
AND
BARKHILL
LIMITED
NOTICE
PARTY
Judgment
of Mr. Justice Paul Butler delivered the 19th day of July, 2000.
1.00 The
Applicant in these proceedings is seeking, by way of Judicial
Review,
to challenge the decision of the Respondent to grant Planning Permission (Ref
No s98A-0161) in respect of the proposed development of “Retail
Warehousing” at Liffey Valley Town Centre, Fonthill Road, Clondalkin in
West Dublin. Leave to apply by way of Judicial Review was granted by the Order
of Mr. Justice Barr on the 11th of October, 1999. The Applicant sought
an:-
“Order
of Certiorari to quash the Decision of the Respondent,
Register
Reference Number s98A/0161, granting planning
permission
to the Notice Party for a revision and alteration to
previously
approved permission Register Reference Number
s97A/0523
to include inter alia, one retail warehouse of
approximately
9,560 sq. meters in area”
1.01 In
the statement of grounds the Applicant sets forth thirteen grounds upon which
the relief is sought. The Respondent in legal submissions dated 20th June 2000
has fairly identified three principal issues as the basis of the Applicants
challenge to its decision, namely:-
(1) “the
permission granted is for a development materially different
from
the development which was applied for, and this is contrary
to
a basic principle of planning law.
(2) the
planning authority should have exercised its discretion to
require
that the developer readvertise the application for
permission,
specifying the modifications proposed in the response
to
additional information, principally the construction of one large
undivided
unit instead of one structure divided into 5 units.
(3) the
planning officer’s report reveals that the town planning
authority
(a) did not take into consideration relevant matters
such
as the 1982 and 1998 General Policy Directives and the
Draft
Retail
Planning Guidelines of 1998 and (b) granted
permission
for reasons that are not rational reasons.”
2.00 FACTS
The
facts preceding this application may be summarised as follows:-
2.01 In
1993 the Notice Party applied for a mixed development to develop the
“Quarryvale” site to be known as “Liffey Valley”. The
proposed development included an hotel, conference and leisure facilities,
public house, betting office, drive-through take away restaurant, petrol
filling station, motor sales outlet, computer centre, leisure centre, swimming
pool, recreation hall, civic offices, cinema, retail and ancillary spaces,
other ancillary units and car parking.
2.02 The
retail units amounted to 23,444 sq. meters in aggregate. The application was
accompanied by an Environmental Impact Statement which assessed the impact of
the proposed development by reference to a number of criteria specified in the
regulations and included assessment of the impact on retail in the area and
traffic impact studies.
2.03 Permission
was granted for the foregoing proposal on the 13th April 1994 after an appeal
to An Bord Pleanala
subject
to some 45 conditions.
2.04 The
Notice Party, between 1995 and 1999 lodged a number of further applications to
amend the permission given. The relevant one insofar as these proceedings are
concerned was a second such application made in 1997 Ref s97A/0523 which sought
to change the use of the South Eastern corner of the site from industrial to
retail and sought permission for some 15 Retail Warehousing units with a total
floor area of some 33,911 sq. meters.
2.05 Permission
was duly granted on foot of the said application and, although the same has
been attacked by the Applicant in these proceedings, it was unchallenged and
remains unchallenged.
2.06 On
the 18th March 1998 the application which is the subject matter of these
proceedings was originally made. The original application was for 5 Retail
Warehousing units amounting to some 12,165 sq. meters which units were to be
arranged in a terrace under one roof so to speak. The Respondent sought
further information from the Applicant on the 12th of May 1998. It is clear
from that request for information that the Respondent was unhappy with the
application as it stood. It was not until the 23rd March 1999, more than 10
months later, that a “reply” was given to that request for
information. The reply, on any view, proposed a radical alteration to the
former plan in that instead of 5 Retail Warehouse units there was to be
“giant” unit of some 9,650 sq. meters with, on one side of it a
garden centre of some 12,100 sq. meters and, on the other side a dry goods
store of some 1,912 sq. meters.
3.00 THE
APPLICANT’S CASE
3.01 It
is submitted that the permission granted was for a development materially
different from that which was applied for and that the matter was dealt with
privately between the developer and the planning authority without any input
from the public and even persons such as the Applicant failed to notice what
had happened. The Applicant submitted that this is entirely understandable
because the notice originally published in respect of the application referred
to 5 Retail Warehousing units. This latter submission must, however, be wrong
because, as appears from paragraph 11 of the Affidavit of Jim Goulding,
Secretary General of the Applicant, sworn on the 16th July 1999, it was not
until the summer of 1998 that the Applicant first took steps to check planning
applications. The application which is the subject matter of these proceedings
was advertised in March of 1998.
3.02 It
is submitted on behalf of the Applicant that the question in the present case
is whether or not the modified application which was submitted by the
Respondent for, what the Applicant describes as, a single “category
killer” store in conjunction with a garden centre and dry goods store was
a modified application which raised different planning issues as compared with
the original application such that to grant permission for the modified
development would be to deprive those who should have been consulted on the
change of development of the opportunity of such consultation. The Applicant
submits that it is incontrovertible that very large single retail warehouses of
this nature do raise fundamentally different planning concerns to a development
which would have consisted of 5 separate retail warehouse units. This, the
Applicant submits, is evident from both the Draft Retail Planning Guidelines of
1998 and from the decision of An Bord Pleanala in relation to the application
for permission for such store in Crowcastle, Co. Dublin.
3.03 The
Applicant cites article 17(2) of the Local Government (Planning and
Development) Regulations 1994(S.I. 86 of 1994) which provides, inter alia, that
where it appears to a planning authority that any notice, because of its
content or for any other reason, is misleading or inadequate for the
information of the public the planning authority shall require the Applicant to
give such further notice in such manner and in such terms as they may specify
and to submit to them such evidence as they may specify in relation to
compliance with any such requirement. It was argued that in this case, once
the planning authority was prepared to accept the significantly modified
application submitted by the Respondent on the 23rd of March 1999 it was and is
patently obvious that the original notice which referred to 5 individual retail
warehouse units was now misleading and/or inadequate for the information of the
public.
3.04 The
Applicant further submitted that there was a failure on the part of the Notice
Party to comply with the obligation to furnish elevation drawings under
articles 19 and 23 of the 1994 Regulations hereinbefore mentioned and that that
failure was a failure to comply with a mandatory requirement. It emerged,
however, that elevation drawings were, in fact, furnished and the only argument
in relation thereto related to the adequacy thereof in that drawings of the
northern elevation did not show the modification of the building from 5 units
to 1 unit.
3.05 It
was further argued that Respondent failed to take into account the relevant
criteria which are identified both in the 1998 Shopping Directive and in the
Draft Retail Planning Guidelines and that it wrongly and irrationally relied on
an assumption that the planning issues which arose on the instant application
had already been evaluated and determined in the 1997 planning permission. It
was not disputed that the use of this site as a retail park had been
established by the 1997 permission. It was argued, however, that the issue was
whether a single large retail warehouse, twice the size permitted under the
Retail Planning Guidelines, was or was not in conformity with proper planning
and development of the area. This was not an issue which had been raised in
the 1997 permission because there had been no application for such a large
retail warehouse at the time.
4.00 THE
RESPONDENT’S SUBMISSIONS
4.01 The
Respondent began by submitting that the decision of the Supreme Court in
O’Keeffe -v- An Bord Pleanala (1993) 1I.R. 39, the Court must consider
all applications to quash decisions of decision making bodies, and specifically
planning authorities, in accordance with principles enunciated by Finley, C. J.
at page 71 of the report as follows:-
“The
Court cannot interfere with a decision of an Administrative
decision
making authority merely on the grounds that (a) it is
satisfied
that on the facts as found it would have raised different
inferences
and conclusions, or (b) it is satisfied that the case
against
the decision made by the authority was much stronger
than
the case for it.”
The
Chief Justice went on further:-
“Under
the provisions of the Planning Acts the legislator has unequivocally and firmly
placed question of planning, questions of balance between development and the
environment and the proper convenience and amenities of an area within the
jurisdiction of the planning authorities and the Board which are expected to
have special skill, competence and experience in planning decisions. The Court
is not vested with that jurisdiction, nor is it expected to, nor can it,
exercise discretion with regard to planning matters”.
“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
that 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”
4.02 In
answer to the argument that the permission granted was materially different
from that originally applied for, the Respondent argued that a planning
authority may impose conditions which modify a development (Section 26 of 1963
Act), call for amended plans or particulars modifying the proposed development,
under Article 35 of the 1994 Regulations hereandbefore referred to, or request
further information (including maps and plans) under Article 33 of the same
regulations. The Respondent cited the dicta of Mr. Justice Henchy in the State
(Abenglen Properties) -v- Dublin Corporation (1984) I.R.381 at page 405 where
he said:-
“Finally,
I do not accede to the submission that the permission granted is so different
from that applied for that it does not amount to a adjudication of
Abenglen’s application. Unquestionably, the permission granted differed
substantially from that applied for - particularly in terms of height of
buildings, reduction of amount of office space, increase in the amount of
residential space and variation in the ratio of office space to the total area
to be built on. But in, my opinion, the variation was valid for it was
effected by the imposition of conditions which the Respondents were authorised
by Section 26 of the Act of 1963 to impose for permitted purposes....”
4.03 It
was submitted that the modified plans had been on the public file since their
receipt and available for inspection by any interested person. Thus, there was
no exclusion of the public from making representations in respect thereof.
4.04 In
response to the argument that the Respondent should have required
readvertisement the Respondent submitted, inter alia, that it is clear from the
Affidavit of Enda Conway that the planning authority took the view that (a) the
principal of a retail warehouse park of approximately 15,000 sq. meters of
floor space had already been approved on this part of the Liffey Valley site by
planning permission 97A/0523, (b) that the Consultative Draft Retail Planning
Guidelines did not mean that large single retail warehouses should not be
permitted in the context of modern shopping centre developments such as Liffey
Valley with a highly developed road infrastructure and, (c) that it was not
necessary to require that further notice of the application be given.
4.05 On
the argument that the Respondent failed to take relevant matters into
consideration the Respondents argue that the uncontroverted evidence of Mr.
Conway was that the substance of government policy underlining the provisions
of the various planning directives were taken into account as were the
provisions of the Consultative Draft Retail Policy Guidelines of 1998.
4.06 Counsel
for the Respondent said that it was quite clear from the report of the County
Planner that he was aware of the draft guidelines; he quoted therefrom and
expressed the view that the proposed application did not come under the ambit
thereof.
4.07 Counsel
for the Respondent further submitted that it was clear from the planning
officer’s report that the particular distinctions in the instant
application were considered by him and taken into account. Having taken the
same into account he was of the view that those distinctions were not of such
significance that he should refuse the application.
4.08 The
Respondent finally referred to the conflicting views expressed in the
respective Affidavits of Mr. Manahan, the town planner, and of Enda Conway and
Anne Mulcrone. It was argued that the mere fact that the former disagreed with
the last two persons mentioned is not grounds to quash the decision.
5.00 SUBMISSIONS
ON BEHALF OF THE NOTICE PARTY
5.01 The
Notice Party first argued that the shopping directive of 1998 (SI193 of 1998)
did not apply to the instant application having regard to the fact that the
same was made three months prior to the coming into operation of the said
directive relying upon the decision of Geoghegan J. in O’Flynn
Construction Limited -v- An Bord Pleanala (unreported High Court 12th November
1999). They further submitted that the 1982 directive did not apply as the
same was revoked by the 1998 directive. Nevertheless, it was argued, that the
planning officer indicated that the decision of the Respondent was informed by
a consideration of the criteria referred to at paragraph 3 of the 1998
directive.
5.02 The
Notice Party disputed the Applicant’s contention relating to the Draft
Retail Planning Guidelines. It rejected the assumption that the Respondent was
obliged to take the same into consideration. Apart from the fact that they
were Draft Guidelines it was pointed out that the same were not published until
April 1999, subsequent to both the lodging of the application on the 18th March
1998 and to the lodging of the additional information and modified plans on the
23rd March 1999. Notwithstanding the status of the Guidelines, the Respondent
was entitled to take them into account insofar as they represented a study
undertaken by a reputable firm of Planning Consultants.
6.00 FINDINGS
6.01 It
is clear that, in challenging the decision of the Respondent, the
Applicant
faces a formidable task as described by the then Chief
Justice
in
O’Keeffe
-v- An Bord Plenala
hereinbefore referred to.
6.02 Rather
than go through the thirteen individual grounds identified
in
the Applicant’s statement Required to Ground Application, I
intend
to give my findings under the headings identified in the
Applicant’s
outlined legal submissions dated the 23rd June, 2000.
6.03 “The
Permission as Granted Relates to a Materially Different
Development
from that for which the Planning Application
was
Made and Notice of such Modified Application should
have
been given to the Public”
6.04 I
accept the submissions of the Respondent and the Notice Party to
the
effect that a Planning Authority can grant permission for
something
substantially different than that originally applied for.
This
was recognised by Henchy J in his judgment in
The
Sta
te (Abenglen)
Properties -v- Dublin
Corporation
(1984) IR 381.
The
revised plans in question amount to a modification. I do not
accept
that what, in effect, is a change from five retail warehousing
units
to one very large retail housing unit amounts to a materially
different
development.
6.05 As
to re-advertising, I am satisfied that anyone interested in retail
warehousing
in the area in question was properly put on notice in
the
first place and that all information concerning any modification
Of
that original plan was available to the public.
6.06 “The
Failure on the Part of the Developer to Comply with the
Obligation
to Furnish Elevation Drawings under Articles 19
and
23 of the Local Government (Planning and Development)
Regulations,
1994, was a Failure to Comply with a Mandatory
Requirement
for the Valid Application for Planning Permission
and
the Purported Grant of Planning Permission is Accordingly
Void”.
6.07 While
I am not convinced that the failure to furnish elevation drawings would be
fatal, it appears that the same were, in fact, furnished. The only argument in
relation thereto relates to the adequacy thereof in that drawings of the
Northern elevation did not show the modification of the building from five
units to one unit. I reject the foregoing ground of objection.
6.08 “The
Planning Authority Failed to take Account of the
Relevant
Criteria which are Identified in both the 1998
Shopping
Directive and in the Draft Retail Planning
Guidelines
and Wrongly and Irrationally Relied on an
Assumption
that the Planning Issues which arose on the
Instant
Application had already been Evaluated and
Determined
in the 1997 Planning Permission.”
6.09 Whether
or not the Directives of 1982 or 1998 or either of them
were
in force, I am satisfied that the Planning Officer took into
account
the substance of Government Policy underlining the
provisions
of those Directives and took into account the Draft
Retail
Policy Guidelines of 1998. It seems to me that the
Applicant
is seeking to use this application to attack the 1997
Planning
Permission. Indeed, Mr Manahan in his replying
Affidavit
sworn on the 4th February, 2000 argues at paragraphs
6,
7 and 8 thereof that the said permission is “void and of no legal
effect”.
In spite of the foregoing, that permission remains in force
and
has not been lawfully attacked. I accept the proposition that
the
1997 permission is a precedent permission in respect of the site
and
that the planning officer was entitled to treat it in a manner in
which
he did in that context.
6.10 I
accept the contention on behalf of the Respondent that the Court
is
faced with conflicting expert views in this case and that it is not
a
matter for the Court to substitute the view of one expert for
another.
6.11 By
reason of the foregoing I am refusing to grant the relief sought
in
the Notice of Motion herein.
© 2000 Irish High Court