1. This
is an application by the Applicant for leave to seek Judicial Review. The
reliefs sought are:-
2. The
background to the case is that the Applicant is the owner of the lands
comprised in Folio 5759 of The Register of Freeholders County Cork being the
lands commonly known as the Old Head of Kinsale. The Applicant has developed
the said lands by building a golf course thereon, which development is accepted
by all parties is an exempted development and did not require planning
permission.
3. By
a decision of the First named Respondent dated 6th May 1993 the Applicant was
granted planning permission for a development comprising the erection of a golf
clubhouse and ancillary equipment building together with necessary site works,
carpark, road ways and drainage on a portion of the said lands in accordance
with plans lodged with the Second named Respondent (hereinafter called "the
County Council"). There were a number of conditions attached to the said
permission including,
inter
alia:
-
4. The
Applicant erected a clubhouse and carried out other works on the lands, but
these were not carried out in accordance with the said planning permission and
the said conditions were not complied with. In due course the Applicant
applied to the County Council for retention and completion of the golf
clubhouse, carpark and access road, retention of machinery shed, retention and
modification of entrance. Permission was granted by the County Council, again
subject to a number of conditions, and the Applicant appealed against certain
of these conditions to An Bord Pleanala. The result of the appeal was that
the application for retention was granted subject,
inter
alia,
to the following conditions:-
5. I
must emphasise that this is not an application for Judicial Review, it is an
application for leave to apply for Judicial Review. Section 19 (3) of the
Local Government (Planning and Development) Act, 1992 amended the Local
Government (Planning and Development) Act, 1963 by inserting a provision in
section 82 thereof, the relevant portions of which are as follows:-
6. The
meaning of the words "substantial grounds" has been considered in several
cases. There is no doubt that the Applicant must do more than merely show
that it has an arguable case, but it is equally clear that the Applicant does
not have to prove his case even on a balance of probability at this preliminary
stage. In particular, the Court does not determine any question of fact, nor
does it make any final determination on questions of law. In
McNamara
-v- An Bord Pleanala
(1995) 2 I.L.R.M. 125, Carroll J. said at page 130:-
7. This
passage has been cited with approval and followed in a number of subsequent
cases, and I believe accurately represents the legal position. For this
reason, I propose to limit myself in this judgment to considering whether the
grounds put forward by the Applicant are reasonable in this sense. In doing
so, I propose to consider the grounds put forward by the Applicant in respect
of its challenge to the conditions individually, although of course those
grounds do overlap to a considerable degree.
8. Conditions
1 and 2 may conveniently be considered together. These conditions purport
to require the Applicant to provide access for the public to the lands and to
provide certain amenities such as a picnic area in relation to such public
access. This goes far beyond the development sought in the planning
application, which merely related to retention of certain developments which
had already been carried out. In fact it required further development of
the lands. Section 26 of the Local Government (Planning and Development)
Act, 1963 provides,
inter
alia
:-
9. Subsection
(2) is expressly stated to be without prejudice to the generality of subsection
(1) and provides that the Planning Authority may impose conditions of certain
types which include:-
10. It
is, therefore, quite clear that a Planning Authority may require further
development work to be carried out as a condition to a planning permission, and
if one solely considers the provision of a picnic area, that would seem to me
quite clearly to come within the powers of the Planning Authority. However,
what the conditions seek to impose in this case are not only the carrying out
of works, but the provision of access by the public, at a charge. It is
conceded by the Respondents that there is no public right of way over these
lands, and that insofar as the public has in fact used the lands as an amenity,
they have been trespassing when doing so. These conditions do not merely
affect the physical development of the lands, but also entirely alter the use
of the lands. The lands are used as a privately owned golf course and in my
view there are substantial grounds for arguing that imposing such a condition is
ultra
vires
the powers of the Respondents as granted by section 26. The only argument
which the Respondents can make is that such conditions are within the general
powers conferred by section 26(1), and it seems to me there are substantial
grounds for arguing that, while the admission of the public to the Old Head of
Kinsale may be a matter relating to the development of the area of the Planning
Authority, and therefore a matter to be considered by them, nevertheless this
does not empower them to impose a condition on a land owner obliging it to
allow such access.
11. I
think there is also a substantial argument that such a condition is totally
unreasonable and irrational. Imposing this condition in the way in which it
has been done, without any detailed consideration as to how such access is to
be overseen, could in effect put members of the public exercising this right of
access in serious danger, both from being struck by golf balls and by reason of
the sheer cliffs on part of the lands.
12. Apart
from seeking to justify the conditions on planning grounds, the Respondents
also question the Applicant's right to raise these issues at all, for two
reasons. Firstly, very similar conditions were imposed in the original
planning permission, which was not in fact followed, but the conditions were
not objected to at that time. Furthermore, they point to the undoubted fact
that the Applicant submitted to the Planning Authority that they intended to
allow some form of access to the public, in particular in the Applicant's
letter of 27th May 1997. These are undoubtedly matters which may be
canvassed by the Respondents ultimately, but in my view they are not
sufficiently persuasive to take away from the substantial nature of the
Applicant's grounds.
13. In
relation to condition 3, I am of the view that the Applicant's grounds are very
substantial indeed. I know of no provision whereby a Planning Authority is
entitled to regulate charges made for access to property, particularly when
that access is imposed by the Planning Authority themselves. I think there
are very substantial grounds for saying that this is not a planning condition
at all, and further that the regulation of charges to the public is in itself a
matter which would be
ultra
vires
a Planning Authority. This is also a totally impractical condition in that
there is no reference to what is to happen if the entrance fee cannot be
agreed, and it would seem to envisage a continuing consultation process between
the Applicant and the Planning Authority, as presumably the Applicant's
expenditure will vary from year to year, and therefore it would be entitled to
vary its entrance fees.
14. Finally,
with regard to condition 8, the justification for imposing such a condition
would seem to be contained in section 26(2)(a), which permits:-
15. If
there is a question of access by the public to the lands, the Planning
Authority is certainly well within their rights in trying to ensure the safety
of the public in relation to the Castle which is at the entrance to the lands.
However, if there is to be no access to the public, I think there is a
substantial argument that the condition of the Castle is quite irrelevant to
the development authorised by the permission. Furthermore, there appears to
be a doubt over the ownership of the Castle, and the Planning Authority is only
entitled to impose the condition if the Castle is under the control of the
Applicant. I certainly did not have sufficient material before me to
determine whether that is so, nor in my view is it a question which should be
determined at this stage in the proceedings. The Castle is apparently a
National Monument, and enjoys certain protection in that regard, and there is a
considerable doubt on the title document as to whether this is or is not within
the folio owned by the Applicant. It is expressly provided in the folio:-
"There
is excepted out of the said lands the property in the ancient monument known as
Down MacPatrick
Castle",
which is accepted to be what is commonly known as deCourcey Castle. On the
other hand, the Land Registry map would appear to include the Castle.
However, there is certainly a substantial argument that the wording of the
folio itself takes precedence over the Land Registry map, and indeed that the
words
"excepted
out of the said lands"
could be construed as meaning excepted out of the lands which are delineated on
the Land Registry map. I am certainly not determining the ownership of the
Castle, but if it is not in the ownership or under the control of the
Applicant, then there are certainly substantial grounds for saying that such a
condition cannot be imposed. In saying this, I recognise that conditions may
be imposed validly which relate to lands which are not under the Applicant's
control, as was argued by the Respondents before me under the general power
contained in S26(1) of the 1963 Act, but certainly if the Applicant should
succeed in relation to the other conditions, then there is a substantial
argument to be made that the condition in relation to the Castle is not one
which should properly be imposed.
16. On
these grounds I would grant leave to the Applicant to issue Judicial Review
proceedings in accordance with the Statement of Case which has been filed. I
should add that in granting such leave I am not ignoring the substantial legal
arguments which were put before me on behalf of the Respondents, but once
substantial grounds have been established those legal arguments become a matter
for the substantive hearing and not for the preliminary hearing.