High Court of Ireland Decisions

1. By Order of the 7th of April 2000 Lavan J granted leave to the Applicant to apply by way of Judicial Review from the reliefs set forth at paragraph D I, II, III, IV, IX, X, XI and XII, on the grounds set for at paragraphs E (1) to (25) inclusive of the Applicants statement grounding the Application for a Judicial Review dated the 3rd of April 2000.

2. The reliefs in question were in essence as follows:

3. By his said Order of the 7th of April 2000 Lavan J joined Borg Developments Limited as a Notice Party to the proceedings.

4. The Applicant in these proceedings Vera O’Connor was at all material times the Chairperson of the TLMG Tenants Association which is an unincorporated association representing the residents of Townsend Street, Luke Street, Moss Street and Gloucester Street in the City of Dublin. The Notice Parties are in the process of carrying out a very large property development on a site which is bounded by George’s Quay on the North, Moss Street on the East, Townsend Street on the South and Luke Street on it’s Western side. The area of the site of this development extends to 1.92 hectares. The development in question is the construction of offices in a number of blocks, together with a small residential component comprising of 8 apartments. The development is by any standards a very large one and when complete will provide some 66,000 sq. meters of office accommodation which is approximately 700,000 sq. feet . This office accommodation is arranged into six blocks, five of these being perimeter blocks namely B,C,D,E and F and a large high rising cluster block namely block A which will stand in the centre or heart of the development. The Applicant herself lives on Townsend Street about 30 yards from the proposed development. She has lived in the Townsend Street area all of her life. She is now a retired machinist.

5. The site of this development is clearly a very important and prominent site having regard to its location and size and its development has been the subject matter of a number planning applications and a good deal of local controversy and objection over the past 20 years. The Applicant and the residents of the area where the development is to be sited have consistently objected to high rise office development on the site because of the shadowing effect of tower blocks on their community and also to mono use office blocks being built on this site, so close to an inner-city Dublin community, because of the anti social nature of mono office use.

6. On the 20th of March 1991 under its reference PL29/5/84226 An Bord Plèànala granted planning permission on foot of a planning application bearing the Dublin County Borough planning register reference number 1703/90 to Irish Life Assurance Plc for a development comprising the erection of 66,000 sq. metres of offices and ancillary accommodation in five perimeter blocks (B,C,D,E and F) each four stories high above podium level with a set back fifth floor plus plant rooms, an 11 storey central block plus four levels of plant rooms (block A), covered Atrium, conference/ gymnasium all over a single level basement car park including access and eight apartments and the demolition of eight apartments on this site. The centre block, block A is much higher than the perimeter blocks extending up to 11 stories. The permission was subject to a number of conditions set out in the second schedule and unusually the duration of the permission is for a period of ten years from the 20th of March 1991.

7. The development of this site pursuant to this permission preceded in a piece- meal fashion, blocks B, C and D only, being built. The fact that the high rise centre block, block A was not preceded with, seems to have encouraged the Applicant and probably other residents of the area to believe that the developers were not proceeding with the high rise portion of the development. However, in 1998, the Notice Parties who had by this stage acquired the undeveloped portion of the site, applied for planning permission to the Respondents for permission to revise the development to include a 24 storey high central block. Permission for this development was granted by the Respondents, but was appealed to An Bord Plèanala by the TLMG Tenants Association and other community groups. An Bord Plèanala by its decision made on the 21st of September 1999 refused permission for the revisions sought to the development in respect of which permission was granted on the 20th March 1991, but granted permission for the retention of blocks B, C and D which were already constructed.

8. Following upon this decision of An Bord Plèanala the Notice Party decided to complete the development in accordance with the permission granted by An Bord Plèanala on 20th of March 1991.

9. In order to do that it was necessary for the Notice Party to comply with the conditions which were set out in the second schedule to that permission. The conditions required the Notice Party to agree a variety of matter with the Respondents and in default of such agreement to have these matters determined by An Board Plèanala. Until that process was completed the final scope of the permission was not settled. This involved the Notice Party making two submissions to the Respondents, one on the 2nd of December 1999 in respect of blocks E and F and the other on the 22nd of December 1999 in respect of block A for the purpose of obtaining the agreement of the Respondents that the submissions of the Notice Party and the proposals contained therein were in compliance with the planning permission of the 20th of March 1991. The Respondents for its part signified its agreement that the Notice Parties proposals were in compliance, by a letter of the 7th of January 2000 in respect of blocks E and F and a similar communication of 10th of February 2000 in respect of block A.

10. The Applicant challenges in these proceedings the agreement thus signified by the Respondents in its communications to the Notice Party on the 7th of January 2000 and 10th of February 2000 as been ultra vires the planning permission granted by An Bord Plèanala on the 20th of March 1991, essentially on the basis that what was agreed to by the Respondents materially altered the development in respect of which An Bord Plèanala granted permission and was not a faithful implementation of the conditions attached to that planning permission.

11. The Applicant identifies a number of changes or alterations both in respects of blocks E and F and block A which she contends could not be sanctioned by any of the conditions attached to the 1991 planning permission.

12. In blocks E and F she points to three significant alterations. The first of these relates to the recessing of windows at ground floor level which the Applicant’s architect Mr. Kelly accepts is a modification permitted by condition 1 of the planning permission. In floors 1 to 3 of these blocks she identifies a change in material from selected brick to selected reconstituted natural stone and a significant alteration or amendment of the overall relationship of solids to voids in that the proportion and layout of windows, opes and general fenestration in relation to solid elements of walling has been considerably altered and reduced, meaning that there is significantly less fenestration visible on the East elevation of these two blocks. So far as levels 4 and 5 of blocks E and F are concerned she identifies significant changes in the shape of the roof, from a hipped roof with dormer structures overhanging a glazed and clear storey, stretching the entire length of the East elevation of blocks E and F, there is now to be substituted a gable ended overhanging roof structure, retaining the glazed clear storey of the 1991 scheme. In addition the roof modelling has been altered in that the three forward projecting hipped dormers have been omitted. This change is related to another change in blocks E and F. In the 1991 scheme there were to be two separate courtyards, one in each block. In the drawings submitted with the compliance application, these two courtyards are joined into a single covered atrium extending through both blocks. A consequence of this change is that the position of the plant room on the roof of the two blocks had to be changed so as to locate it horizontally behind the new atrium, so that as one views the eastern elevation of these two blocks, the plant room protrudes above the hipped roof along a distance of some 52 metres. The Applicant contends that the results of these changes is to radically alter the roof profile of these two blocks from the eastern elevation. It is her contention supported by the expert opinion of her architect Mr. Kelly that these are changes which far exceed anything contemplated in the conditions attached to the planning permission and in themselves require planning permission and should have not be permitted by the Respondents, under the guise of being a compliance with the conditions attached to the 1991 planning permission.

13. In block A the Applicant points to a change in the curtain walls for all elevations of this block. It is her contention supported by her architect Mr. Kelly, that in the 1991 permission, the elevations on the tower cluster comprising block A used curtain wall aluminium framed black or very dark glazing recessed within a surround of reconstituted natural stone, in an elevational layout of three bays per floor, with each bay subdivided into six panels. Thus the overall architectural characteristic of the cluster of towers referred to as block A in the 1991 permission is that of black towers subdivided into three bays with white stone or reconstituted stone surround.

14. In contrast to this, the Applicant contends that in the drawings submitted as part of the compliance submission there is a comprehensively different treatment of all elevations in this cluster block in that these drawings indicate the use of unframed butt jointed blue-gray structural glass set flush within a surround of polished Wicklow Ballybrew granite and incorporating vertical stainless steel fins projecting from the outside of the building and running from ground level to top storey all set within an elevational layout of 11 bays per floor. The Applicant contends, and in this respect is supported by the expert opinion of her architect Mr. Kelly that these changes were not permitted or contemplated by any of the conditions attached to the planning permission and ought not to have been agreed to by the Respondents, as being in compliance with the 1991 planning permission.

15. The Applicant points to the following conditions of the planning permission as having been breached. These relevant conditions read as follows

16. The Applicant contends that the modification envisaged in this condition affected only the ground floor levels and insofar as blocks E and F are concerned the facades to Moss Street and Townends Street, and this condition did not permit any changes to the facades of blocks E and F above ground floor level or to the roof of these two blocks or to its internal structures. All that was envisaged in this condition is that there would be a modification of the ground floor facades and no more.

17. The next condition which the Applicant claims was breached is condition three which is as follows

18. It is the Applicant’s case that all this condition permitted was a clarification of material already submitted in the manner perscribed in the condition itself and that it could not and did not permit the Notice Party to alter or depart from the plans in respect of which planning permission has already be given by An Bord Plèanala in 1991. The Applicant points to the distinction between condition 1 which mandates a certain modification and condition 3 which merely requires clarification and hence does not permit of any change or modification. The Applicant contends that condition 3 merely provides for the submission of additional material and detail as set out in the various paragraphs of the condition so as to make clear detail already submitted and more clearly establish the exact scope of the development, and no more.

19. The Applicant next identifies condition number 5 as breached by the compliance Order of the Respondents. This read as follows:

20. “Adequate provisions shall be made to facilitate access to, and use of the proposed development by disabled persons and special provisions shall be made in the off street car park; for the parking of their vehicles. The minimum requirements to be satisfied shall be set out in “Access for the Disabled-Minimum Design Criteria” published by the National Rehabilitation Board. Proposals providing for compliance with this condition shall be submitted to and agreed with the planning authority prior to commencement of development.

21. To ensure that reasonably facilities are provided for the convenience of disabled persons”.

22. It is the Applicant’s case in respect of this condition that following upon the two compliance submissions of the Notice Party, the Respondent in its Orders or decisions signify agreement as to compliance, set out a whole range of requirements to be met before there could be compliance with this condition. The Applicant submits that given this list of outstanding matter which had not at that time been addressed by the Notice Party, that the Respondents could not have concluded that there was compliance by the Notice Party with condition 5.

23. The next condition of the planning permission which the Applicant says has been breached is condition number 8 and it reads as follows:

24. It is the Applicants case in regard to this condition, that at the time that the Respondents signified its agreement that the Notice Parties plans, drawing and proposals were in agreement with all of the conditions attached to the planning permission, that at that time agreement had not been reached in respect of payment of all contributions to paid under this condition nor had there been full payment of all these contributions and hence the absence of such agreement and payment invalidated the purported agreement of the Respondents that there had been compliance.

25. Finally the Applicant contends that conditions 11 and 13 when taken together, have been breached. These read as follows

26. James Barrett the City Architect in an Affidavit sworn on the 22nd of June 2000 says the following at paragraph 4

27. In the light of these averments which were not controverted and neither were the deponents cross examined on them, and in the light of the undisputed evidence concerning the history of planning file number 1703/90 and the submission of duplicates of the original plans on planning application number 1290/98, I have concluded that Mr. McDonnell and Mr. Barrett did in all probability have before them duplicate copies of the plans in respect of which An Bord Pléanala granted planning permission, at the time when their relevant professional assessments were made for the purposes of the compliance application.

28. Both Mr. Rodgers S.C. for the Respondents and Mr. O’Neill S.C. for the Notice Party drew attention to the fact that the Applicant as part of his proofs, had not exhibited with any of the Affidavits, either the originals or duplicates or any other form of copy of the plans lodged with planning application number 1703/90 which led to the planning permission in March 1991 and both submitted that as a consequence of this, it was not possible for the Court to determine one way or another whether or not there had been any material departure as was been claimed by the Applicant from the 1991 permission in the compliance orders and hence it was their submission that the Applicants case must fail for want of essential proofs.

29. It is to be noted that the Applicant identifies, as indicated earlier, a number of matters as been in her view impermissibly at variance with the 1991 permission. In summary these were in blocks E and F changes in the facade above ground level involving altering the relationship between solid to void and thereby reducing the amount of fenestration, the removal of two separate courtyards joining together into a single covered atrium running through both blocks with consequent changing of position of the plant room and consequent changes in the roof profile, and in respect of block A the change in the colour of the curtain wall glazing from either black or very dark to blue grey and a change in the layout of the bays of these windows and a change from in corporation in recessed reconstituted white stone to a flush finish with Wicklow Ballybrew granite.

30. In his Affidavit sworn on the 3rd of April 2000, James Kelly says the following at paragraph 10

31. In paragraph 15 of this Affidavit Mr Kelly says the following “...on the assumption that the development in respect on which planning permission was granted by An Bord Pléanala on 20th March 1991, is that which is depicted in the extract on the environmental impact statement previously referred to that which is depicted and illustrated in the drawings referred to at paragraph 10 above, I am of the view that the compliance drawings submitted by the developers in respect of block A of this purposed development constitute a comprehensive variation of that for which planning permission was originally granted. Having examined drawing numbers 8912/525 and 8912/526, bearing a date in 1990 and having regard to the computer generated depiction of the cluster of towers known as block A and exhibited herewith, I note the following critical architectural details and designs for block A as permitted by the decision of An Bord Pléanala of 20th March 1991. The elevations on the towers use curtain wall aluminium framed black or very dark glazing recessed within a surround of reconstituted natural stone in an elevation layout of three bays per floor with each bay subdivided into six panels. I have a sketched elevations as depicted on drawings 8912/525 and 8912/526 which I examined in the offices of the planning authority and beg to refer to this sketch upon which marks the letters JK3 I sign my name prior to the swearing hereof. This elevation treatment is a match for the depiction of the elevation of the 1991 permission as submitted in the environmental impact statement to An Bord Pléanala in 1999. The further significant architectural feature of these elevations is the use of black or very darkly tinted reflective glass. I am satisfied that the overall architectural characteristic of the cluster of towers referred to as block A , as granted by An Bord Pléanala in 1991 is one of black towers subdivided into three bays with white stone or reconstituted stone surround. By contrast with the elevation treatment in respect to which planning permission was granted in 1991, the compliance drawings submitted for block A on 22nd of December 1999 to the planning authority indicate comprehensively different architectural treatment of the elevations of these clustered towers, such that what is now purposed was never within the contemplation of An Bord Pléanala when it granted permission on 20th March 1991.”

32. Examining exhibit JK1 in the Affidavit of James Kelly one sees a picture in colour of the central cluster block, namely block A, depicting curtain walls in black or very dark glazing, surrounded by white.

33. These averments of Mr. Kelly were not controverted on Affidavit by any of the deponents of the Respondents or Notice Party nor was Mr. Kelly subject to cross examination on them.

34. I have therefore come to the conclusion that on the balance of probabilities, the elevational treatment of block A in the 1991 planning permission is as has been described by Mr. Kelly in his Affidavit.

35. As far as the changes to blocks E and F are concerned, these changes are described in detail by Mr. Kelly in his Affidavit sworn on the 28th day of June 2000, where he says at paragraph 25 as follows.

36. Mr. Kelly goes on to say in paragraph 26 of this Affidavit

37. An examination of exhibit E in the Affidavit of Michael Kinsella sworn on the 12th of June 2000, clearly demonstrates the changes in the facades to blocks E and F and also the changes in the roof profile of blocks E and F as described by Mr. Kelly in his Affidavit.

38. Not only are these averments of Mr. Kelly not controverted on Affidavit by Respondents or the Notice Party, the Affidavits of Mr. McDonnell and Mr. Kinsella in broad terms accept that changes were made to the eastern elevation of blocks E and F and to the roof profile and that the plant room was reorientated. Exhibits JK1 in the Affidavit of James Kelly sworn the 3rd of April 2000 and in particular the depiction in colour of the development as permitted in the 1991 permission, clearly shows in blocks E and F, two separate uncovered courtyards and placed on the roof separating these two courtyards, a raised structure which is probably the plant room. The drawings being exhibit MKB referred to in the Affidavit of Michael Kinsella and in particular drawings number 99083EF/07A clearly show an entirely different configuration with a glazed over atrium running down the length of both blocks thus necessitating the reorientation of the plant room, with the consequent changes in roof profile.

39. All of this persuades me that the changes from the 1991 permission as described in the Affidavit of James Kelly in relations to blocks E and F, are accurately described and I accept his evidence in this regard and hold as a fact that these changes as described by Mr. Kelly in relation to blocks E and F are provided for in the drawings accompanying the compliance submission of the 2nd of December 1999.

40. This was undoubtedly the most controversial aspect of the case. The difficulty which is manifest here is in determining whether the correct approach to the interpretation and of the conditions attached to the planning permission is to determine whether or not the Respondent correctly construed the meaning of the conditions, or whether the appropriate test is that set out by Finlay CJ in O’Keefe -v- An Bord Pleanala (1993) 1IR39, namely, whether there was irrationality or unreasonableness on the part of the Respondents which vitiated the two decisions in the sense that, there was no material which could support the conclusions reached. The question which has to be decided is aptly put by McGuinness J in the case of Wicklow Heritage Trust Limited -v- Wicklow County Council Judgment delivered 5th February 1998, where she said at page 9 of her Judgment the following:

41. In that case what was involved was the construction of a County Development Plan.

42. For the Applicant it was submitted that the test laid down in O’Keefe -v- An Bord Pleanala was inappropriate, save in one respect, namely, that were the 1990 plans or duplicates of them not before the decision makers when the decisions were being made, that on the basis of the test in this case there would have been no material before the decision makers, which could have supported the decisions made. Otherwise, they submit that as Mr. MacEochaidh put it in reply, what is a issue here, is an old fashioned jurisdictional point. The Applicant submitted that the decisions impugned in these proceedings are essentially administrative decisions, unlike the decision of a local authority or An Bord Pléanala under Section 26 of the Act of 1963 on an application for approval or permission. It was submitted further for the Applicant that what is involved in the exercise been conducted by the Respondents in this case was an implementation of the conditions attached to the planning permission, conditions which bound both Notice Party and the Respondents and therefore what had to be ascertained or what had to be decided, was the true or correct meaning of these conditions and hence the reasonable test as envisaged in the O’Keefe decision was inappropriate. The kind of task the Respondents had contrasted markedly with the jurisdiction they would have on an application for permission or approval under Section 26 of the Act of 1963.

43. In support of their submissions, in this regard, Mr. Callanan referred to the case of Gregory -v- Dun Laoghaire Rathdown County Council both to the unreported Judgments of Geoghegan J delivered on the 16th of July 1996 and the unreported Judgments of the Supreme Court delivered on the 28th of July 1997. In this case, the matter at issue was similar to the present case, in that, it related to the agreement by Dun Laoghaire Rathdown County Council to a certain proposal purporting to be in compliance with a condition attached to a planning permission by An Bord Pléanala. Geoghegan J said the following starting at page three of his Judgment:-

44. In the Supreme Court the following was said by Murphy J at page 10 of his Judgment:

45. Barron J and in the course of his Judgment at page 5 of the same said the following:

46. Lynch J agreed with the Judgments of Murphy J and Barron J.

47. For the Respondents, Mr. Rodgers submitted that in determining whether or not the decisions impugned in these proceedings were ultra vires , the appropriate test is to be found inter alia and the Judgment of the Supreme Court in the case of the State (Abenglen Properties) -v- Dublin Corporation (1984) IR381 and also in the case of O’Keefe -v- An Bord Pléanala already mentioned. Mr. Rodgers cited the following passage from the Judgment of Henchey J in the Abenglen case as follows:-

48. Mr. Rodgers submits that the Respondents clearly had jurisdiction to make the decisions that they made and hence even if there was any error made it was one which was within their jurisdiction and hence the remedies claimed in these proceedings are not available to the Applicants.

49. Mr. O’Neill S.C. for the Notice Party in his submission stressed the test laid down in O’Keefe -v- An Bord Pléanala and submitted that this was the appropriate test and as there was manifestly ample material to support the two compliance decisions and as there were manifestly within jurisdiction there were no grounds upon which certiorari could lie. In this respect he also refers to the case of Byrne -v- Wicklow County Council an unreported Judgment of Keane J as he then was, delivered on the 3rd of November 1994, in support of this submission.

50. In my view the case of Gregory -v- Dun Laoghaire Rathdown County Council is on point. What was in issue in that case was, as it is in this case the implementation by way of agreement between a developer and a local authority of a condition in a planning permission imposed by An Bord Pléanala. In that respect, the case is on all fours with the instant case. I am, therefore, in my view bound by the authority of the Judgments of the Supreme Court which appear to me to be unequivocally against the proposition advanced by Mr. Rodgers and Mr. O’Neill. I accept therefore, that the appropriate test to be applied is that the conclusion or decision of the Respondents must be looked at to see if it is correct in law and not reasonable in the sense of the test laid down in O’Keefe -v- An Bord Pléanala .

51. Apart from authority, the nature of the function being discharged by the Respondents in dealing with these compliance application leads in my view inexorably to this conclusion. As Mr. Rodgers said in the course of his submission, what we are dealing with here is the tail end of the planning process. The application for planning permission has in the first instance being heard and determined by the Respondents in accordance with the statutory procedures. Its decision was appealed to An Bord Pléanala and, it, in due course, heard and determined that appeal again having conducted its proceedings in accordance with the elaborate statutory procedures involved. All through these procedures the relevant parties i.e. the developer, the local authority and the public were involved and made their respective case. Ultimately, An Bord Pléanala finally determined the matter by its decision to grant planning permission on the 20th of March 1991. Thereafter all that remained to be done was to achieve compliance with the conditions in the planning permission by way of an agreement between the Notice Party and the Respondents or failing that by way of determination by An Bord Pléanala. This final leg of the procedure was confined between the Notice Party and the Respondents and did not include the Applicant or any other members of the public. It necessarily follows from this, that what is required of this compliance procedure is no more than faithful implementation of the decision of An Bord Pléanala. The jurisdiction so invoked on the part of the Respondents is a very limited one and of a ministerial nature. What they have to do is to implement that which has already been decided in essence. Thus, all that they must ascertain is the true or correct meaning of the conditions attached to the planning permission and to confine themselves and the Notice Party to such proposals as are in compliance with those conditions.

52. This exercise is wholly and radically different to the jurisdiction exercised by a planning authority after the statutory planning procedure has been gone through, in making its decision to grant or refuse an application for permission or approval. This latter exercise is clearly of a judicial nature and involves the local authority drawing on its resources of expertise in planning matters and having regard to the circumstances of each case and the relevant planning considerations making a decision which necessarily involves on its part an, extensive discretion. When ultimately that process is finally exhausted by a decision of An Bord Pléanala if there is an appeal, it would be wholly contrary to principle and impractical if the questions which were involved in the application and in the appeal were to be reopened or to be revisited on a compliance application particularly in circumstances where essential parties i.e. in this case the Applicant or otherwise the Public were excluded. A fortiori, new issues could not be opened at this stage of the process. Therefore in my view it necessarily and obviously follows that the Respondent must be confined in this exercise solely to the ascertainment of the true and correct meaning of the conditions and consequent, on that, confined in their agreement to proposals which faithfully adhere to and implement those conditions.

53. Necessarily, such an approach excludes, in my view, “the reasonableness test” as laid down in O’Keefe -v- An Bord Pléanala from the compliance procedure.

54. All parties to the proceedings in their submissions relied upon the judgment of the Supreme Court in the case of Boland -v- An Bord Plénala (1996) 3IR435. This case dealt with the type of matter which may properly be inserted into a planning permission for later agreement between the planning authority and a developer. The judgments in this case establish the criteria to which the board was entitled to have regard in deciding whether to impose a condition leaving a matter to be agreed between the developer and the planning authority to be as follows:

55. I accept, that it is manifestly clear that I must have regard to these criteria when approaching the task of determining what was a correct construction of the conditions attached to the planning permission in this case. I have also been referred to the case of In Re. XJS Investments Limited (1996) IR750 in which McCarthy J delivering the judgment on the Supreme Court said at page 756 the following:

56. I am happy and indeed bound to follow this approach in determining the true construction of the conditions attached to this planning permission.

57. Before dealing with each individual condition a number of features of the planning permission are worthy of note and attention was drawn to these by both Mr. O’Neill and Mr. Rodgers. Firstly, the development was of an inordinately large size, some 66,000 square meters or approximately 700,000 square feet. The development was a very complex one involving five perimeter blocks and a large central cluster block. The site was very large and in terms of civic design a very important one because of it’s central location and it’s location vis-a-vis other important architectural sites. Reflecting the enormous size of this development and it’s complexity this planning permission, unusually, has a duration of ten years. It is also note worthy and attention was drawn to this by Mr. O’Neill that unlike most other planning permissions there is not in the conditions a condition requiring that the development be carried out in accordance with the plans and specifications lodged with the planning application.

58. I take the view that having regard to the nature of this development, it was one, in respect of which the criteria set out by the Supreme Court in the case of Boland -v- An Bord Pléanala are remarkably apposite.

59. The only part of condition one which is relevant to this case is paragraph 1.

60. Mr. Callanan for the Applicant submitted that in this context, the word “modified” permitted changes to the ground floor facades of blocks E and F as they faced Moss Street and Townsend Street but no more than that and he submitted that this condition could not be construed so as to have permitted the changes in the facades of these two blocks above ground floor level which changes are envisaged in the compliance material. Mr. Rodgers for the Respondent submitted that conditions one and also three, which I will deal with later, permitted the modification of the proposed development in the course of the compliance process provided such modification was within the ambit of contemplation of conditions one and three.

61. In my view condition one merely permitted some alteration to the ground floor level facades of block E and F, and as far as this case is concerned I do not think that this condition can be availed of as a basis for the changes to the upper facades or the internal arrangements and the changes in the roof of blocks E and F

62. This condition is crucial to the alterations envisaged in the compliance material. Mr. McDonald in his Affidavit clearly construed this condition as the one which permitted these alterations and Mr. Rodgers and Mr. O’Neill in their submissions relied on their view of the construction of this condition to justify such changes as were contained in the compliance material.

63. Mr. Callanan for the Applicant in his submissions placed great reliance on the word “clarified” as meaning simply that all that was sought was the making clear or the enhancement of detail or information already given so as to establish the full scope or the development and he submitted that use of the word “clarified” in this condition necessarily implied that no change or redesign or modification was envisaged by this condition, merely the provision of further detail and further drawings so as to make clear that which has already been provided. Hence in his submission it was not open under this condition to change the colour of the curtain wall glazing in block A from black or very dark to blue grey with a silver tint. Similarly it was not open under this condition to make changes in the facades of the floors above ground level in blocks E & F. He submitted that there was nothing in this condition or indeed in condition one which could have anticipated or contemplated or envisaged the change in the internal layout i.e. the joining of the two courtyards in blocks E and F into a single atrium under a glass roof with the consequent rearrangement of the plant room and the rearrangement of the roof resulting in a profile on the eastern elevation which gives the appearance of an extra storey.

64. Both, Mr. Rodgers and Mr. O’Neill draw attention to and stress the importance of the second paragraph of this condition starting with the words “Prior to their incorporation” and submit that if all that was envisaged in this condition was simply the provision of further detail for the purposes of making clear, then the agreement of the planning authority would not have been needed because there would be no change to be agreed to. Both Mr. O’Neill and Mr. Rodgers stressed the importance of the reason attached to this condition. They identified two factors which were featured in the reason. The first of these was the “interest of civic design”. The concept of civic design, it was submitted, imported a relationship between this development, the city generally, other buildings in it, and the people which would use this building or who would come in contact with it or it’s environs. It was submitted that this would entail over the ten year period of the planning permission the necessity to permit some degree of flexibility so that, as the project developed evolving standards of civic design could be accommodated, new technologies embraced and changes and developments occurring in the surrounding environs of this development adapted to and accommodated. The second factor which they identified in the “Reason” attached to this condition was the fact that An Board Pléanala considered it appropriate that the planning authority should be enabled to assess the suitability of the proposed materials and other specific details at this important city centre location. It was submitted that this necessarily envisaged that the question of the materials, which would include matters such as stone, glass and various metals attached to the exterior of this development were not finally decided, but would have to be agreed to by the planning authority. This combined of with subparagraphs III and IV of the condition itself necessarily imply, they submitted, that the final detail of the materials, colours, and finishes to be used on the doors, windows, security, shutters, grills, railings, or gates and the curtain wall glazing systems and other cladding material to be used on the roofs’ and the facades of the buildings were not finalised and had to be agreed with the Respondents. It was further submitted that the flexibility envisaged in this condition was precisely that kind of flexibility which the Supreme Court had envisaged would be left to a developer in carrying out a very large and complex project such as the instant one and that these were precisely the kind of technical matters or matters of detail which should be left to be agreed between the developer and the planning authority including in some instances where necessary some element of redesign. It was further submitted that having regard to the long duration of this planning permission, it was entirely foreseeable and indeed envisaged by An Bord Pléanala that over the lifetime of the planning permission there would be changes in technologies and changes in materials, which it was desirable to accommodate. It was further submitted by them that the such changes as were envisaged in the compliance material were not such as would motivate reasonable members of the public to object.

65. It was submitted that the reference in the reason to the “scope of permitted development”, in the context of clarification and the interest of civic design necessarily imports latitude and capacity for some “redesign”.

66. In my view, condition three cannot be given the narrow construction contended for by the Applicant. Taking the condition as a whole including the second paragraph and also the reason and in particular paragraphs III and IV it would seem to me that the non-expert person envisaged by McCarthy J in the XJS case reading the entirety of this condition would undoubtedly be left with a clear impression that as Mr. Rodgers put it in his submission, such detail as was included in the plans and drawings submitted with the application were not “set in stone” and that some degree of change was envisaged as permissible. Needless to say in order to keep faith with the planning permission generally and the scheme in respect of which it was given, such degree of change would have to be of a very limited and technical nature and not such as to excite significant public interest and/or objection.

67. In my opinion, the changes to the facades of the upper floors of blocks E and F manifestly come within that limited degree of flexibility for change envisaged in condition three.

68. So far as block A is concerned the changes in the curtain wall systems excluding for the moment from consideration, the change in the colour of the glazing, would in my view be manifestly regarded as technical detail and within the limited degree of change permissible still in compliance with the planning permission.

69. The question of the colour change in the curtain wall glazing of block A has understandably given rise to considerable concern on the part of the Applicant. However it would appear that what she perceived prior to the initiation of these proceedings as being a colour change from black to white was an misapprehension on her part as a result perhaps of being misled by the appearance of a model she saw at a meeting on the 21st of January 2000 and a subsequent newspaper report. The model in question showed block A as having a very white or translucent appearance. As a result of Mr. Kelly’s examination of the compliance drawings it is now clear that the colour which is proposed for the curtain wall glazing on block A is a blue grey with a silver reflective tint set. The difference between that and black or very dark glass is much less than perhaps the Applicant originally perceived and in my view such a degree of change in colour is not such as would ordinarily excite the interest or indeed objection from reasonable members of the public and hence I am driven to the conclusion that the change in colour as proposed in the compliance material, having regard to the duration of this planning permission and the need to accommodate civic design, is one which would undoubtedly have been envisaged by An Bord Pléanala because colour is specifically mentioned in the condition and this change is in my view of such a limited degree as to be easily and comfortably accommodated within the scheme for which planning permission was granted by An Bord Pléanala in March 1991.

70. The rearrangement or redesign of the two courtyards into a single atrium in blocks E and F and the consequent changes to the plant room and the rearrangement of the roof profile are a different matter.

71. There is nothing in Condition I that could possibly justify these changes. Condition three relates solely to the external layout of the development and in my opinion cannot be construed so as to envisage this change, or to permit it, no matter how desirable this change might be. It noteworthy that the text of the compliance submission dated 1st of December 1999 contains no express reference to these changes, which are to be found solely in the drawings submitted. Nor indeed is these any express reference to these changes in the text of the agreement to compliance dated the 7th of January 2000. Mr. McDonald’s view expressed, in his Affidavit was that these changes were encompassed by condition three. I cannot accept this and I believe he erred, in his view as to the correct construction of condition three.

72. It was submitted by Mr. O’Neill for the Notice Party, that in any event, such changes, in this regard, as were sought in the compliance material would be exempt development under the Section 4 (1) (g) of the Local Government (Planning and Development) Act 1963 which reads as follows:

73. It was submitted that because these changes were changes to the internal structure of blocks E and F that they came within the exemption permitted under this subsection of the Act and that being so that it was open to the Notice Party to proceed with these changes in any event.

74. In support of this submission reference was made to the case of Smyth -v- Colgan (1999) 1IR548. This case related to an extension to a dwelling house which was claimed, was an exempt development. Although it is not expressly stated in any of the judgments it seems to me to be implicit from them that the dwelling house to which the extension, which was claimed to be exempt, was attached, and in respect of which undoubtedly planning permission had been obtained, was in fact, constructed at all material times. The issue in that case was whether or not it could be considered a dwelling house for the purposes of the exemption although nobody had lived in it up to the point of the carrying out of the alleged exempt development. In my view this case is not an authority which supports the proposition that because the rearrangement of the internal structure of blocks E and F could be said to be an exempt development, that is its permissible at this stage in advance of the construction of blocks E and F in compliance with the planning permission to disregard the internal structures in respect of which planning permission was obtained and to carry out the development in the first instance in this rearranged fashion.

75. In my opinion were it open to a developer to do that, it would make nonsense of planning permission in respect of internal structures, as it would be open to a developer to make such alterations as he pleased not withstanding the plans and specifications in respect of which planning permission had been obtained. Thus the planning code would be confined solely to exterior structures. This of course cannot be, and I have no doubt that Mr. O’Neill is incorrect in this submission.

76. The Applicant’s case in regard to this condition is that in their communication of agreement in respect of both compliance submissions the Respondents in respect of both compliance submission set out a number of requirements not hitherto addressed in the compliance material and in respect of the compliance application in respect of block A stated there was not sufficient detail or scale for a thorough Part M assessment. The Respondent then set out eight requirements in respect of block A and also made a number of requirements in respect of block’s E and F .

77. The Applicants submit that in view of the apparent incompleteness of the Notice Party’s submissions in respect of condition five for both blocks E and F and block A that it was not open to the Respondents to signify their agreement that the proposals were in compliance with the planning permission. I cannot accept this submission as it ignores the fundamental nature of the exercise. What was required by the condition in the planning permission was to reach agreement or failing that there would be a determination by An Bord Pléanala. There was nothing in the condition to prohibit proposals or requirements being put forward by the Respondents. It would then of course be a matter for the Notice Party whether or not these were acceptable. Generally what happened in this case was that proposals were advanced in the compliance submission by the Notice Party but in the case of condition five the reverse took place in that the Respondents having considered the submission clearly decided that a number of matters were not sufficiently addressed and they themselves put forward their own requirements. It was a matter then for the Notice Party to either accept these requirements or appeal them to An Bord Pléanala. The Notice Party did not so appeal and it must be inferred, that these requirements were acceptable to the Notice Party. Paragraph 16 of the Statement of Opposition of the Respondents indicates so much. It reads as follows:

78. The Applicant’s complaint in regard to this condition is that at the time the two compliance Orders were made, that there was not agreement on contributions nor were they paid, and hence it was not open at that time to the Applicants to signify their agreement that there was compliance with the planning permission.

79. The Affidavit of Bridgit Kelly sworn on behalf of the Respondents indicates a different picture which would not have been known to the Applicants at the time of the initiation of these proceedings. That fact is acknowledged by Mr. Sodon in his final Affidavit.

80. In Paragraph three if her Affidavit Bridgit Kelly deposes to the fact that by letter dated the 6th of October 1992 the Respondents agreed to a proposal put forward by the then developer Irish Life Assurances Plc for the payment of £123,500 index linked to the date of grant of permission on a phased a basis as follows: Phase 1 Block C and D 40,000; Phase 2 Block B 20,000; Phase 3 Block A 65,000 and Phase 4 Block E and F 38,500,

81. In respect of blocks A, E and F the Notice Party under cover of a letter of the 31st of January 2000 paid the sum of £103,500 and requested details of the amount due in respect of indexation. Under cover of a letter of the 6th April 2000 the Notice Party enclosed a payment for the sum of £31,492.74 in respect of indexation, thus discharging in full all sums due on foot of condition eight.

82. For the purpose of the compliance exercise what was required of the Notice Party was as is said in the last sentence of the first paragraph of condition eight:

83. The letter of the 6th October 1992 achieves the requirement of agreement for the purpose of satisfying the condition. The Applicant however complains that payment of the amount due in respect of the contribution was made on the 31st of January 2000 some three weeks after the compliance order in respect of blocks E and F and the final payment in respect of the amount due for indexation was not received until the 6th of April 2000 after both compliance orders and indeed after the initiation of these proceedings.

84. In my view what the condition required was agreement on the amount to be paid. Failure to have paid prior to the commencement of the development would as submitted by Mr. Callanan have had the effect of bringing Section 26 (10) (a) of 1963 Act into operation thereby rendering the entire permission a nullity until such time as it had been paid. Thus, such development as was carried out during the period of default would have been development carried out without any permission whatsoever and would have rendered the Notice Party liable to a variety of enforcement procedures contained in the planning code.

85. The purpose of the compliance procedure is to finalise the scope of the scheme in respect of which permission is granted. That is a separate matter entirely from carrying out of the development and it’s commencement. Such default as there was in the payment of the contribution merely rendered the Notice Party liable to enforcement procedure during the period of default and did not in my view impinge upon the valid completion of the compliance procedure.

86. The Applicants complaint in regard to these two conditions is that there was a failure to agree a proper phasing of the development with the Respondents and now there is a headlong rush to have the development completed in the relatively short period left before the expiry of the planning permission. The Notice Party counters this objection on the basis that the essence of the complaints been made by the Applicant have to do with nuisance created by the development and that problems in this regard have been addressed and agreement reached between the parties and hence it is not open to the Applicant to pursue this complaint.

87. The Notice Party in their two compliance submissions said the following in regard to condition Eleven:

88. In the letters of the 6th of January 2000 and the 11th of February 2000 indicating compliance the Respondents in respect of condition 11 say the following.

89. In my view phasing in regard to condition 11 would have to be construed in broad terms. It could not in my view be regarded as imposing upon the Notice Party a detailed timetable of works. The Respondent in their reply to the compliance submissions in this regard indicated their satisfaction with the order with which it was proposed by the Notice Party to proceed with the remainder of the development. They were in my view entitled to be satisfied with what the Notice Party was proposing and I am of the opinion that there was compliance by the Notice Party with condition 11 and the Respondents were entitled to indicate their agreement, as they did.

90. The Applicant makes the case that the Respondents should have required an Environmental Impact Assessment and Environmental Impact Statement from the Notice Party as part of their compliance submission. The basis of the Applicant’s case in this regard is to submit that having regard to the significance of the changes sought to be implemented through the compliance procedure, that for the purpose of the E.U. Directive, the appropriate point of “consent” was the compliance agreement of the Respondents.

91. I have no hesitation in rejecting that submission. What was happening in the compliance procedure was as indicated earlier in this judgment merely the implementation of the conditions attached to the planning permission. Hence there could be no question of the moment of “consent” shifting from the grant of the planning permission by An Bord Pléanala to the agreement by the Respondents that the Notice Parties compliance submission was in compliance with the planning permission.

92. The Applicant makes the case that because of the significance of the changes proposed in the compliance material there was a duty on the part on the Respondents to engage in a process of consultation with her and other interested community groups. In my opinion this submission is unsustainable. As indicated earlier in this judgment the compliance exercise was merely the implementation of the conditions attached to the planning permission for the purposes of finalising the planning permission itself. Earlier in this judgment I concluded that such changes as were agreed by the Respondents in the compliance Orders were within the limited degree of flexibility permitted by condition 3 and hence were not such as would excite objection from reasonable members of the public.

93. The Statutory planning code makes no provisions for consultation with the public in the compliance procedure, and in the absence of a statutory obligation to consult, having regard to the limited nature of the exercise, there could not be any other duty imposed on a Planning Authority to consult the public at this late stage in the planning process

94. I have determined that the changes in blocks E and F consisting of the removal of the two unroofed courtyards and their replacement by a single atrium stretching through both blocks with the consequent reorientation of the plant room were not permissible changes under the compliance procedure necessitated by conditions one or three of the planning permission of the 20th March 1991.

95. I am satisfied however that these changes are not intrinsically connected to the remainder of the matters in respect of which the Respondents signified their agreement to compliance on the part of the Notice Parties in respect of either blocks A, E or F. I am of opinion that I should treat the portion of the compliance material thus impugned as severable from the rest, for the purposes of the reliefs claimed in these proceedings.

96. The Notice Party in their submissions contended that the Applicant lacked the locus standi to pursue the reliefs sought in these proceedings, and relied upon the case of Lancefort Limited -v- An Bord Pleanala (no 2) (1999) 2IR270. The question of locus standi was not raised by either the Respondents or the Notice Party in there Statements of Opposition and hence it is not a ground of opposition which should be entertained. However I may observe that having regard to the fact that the Applicant lives very close to the development, that she participated in the planning process as a objector at every stage she would in my view have a “ sufficient interest ” in the completion of the compliance procedure, and having regard to the fact that she and other members of the public are excluded from that part of the planning process would in my view have a locus standi to mount these present proceedings.

97. The Notice Party submitted that as the remedies claimed in the proceedings are discretionary, the Court ought not to exercise its discretion in favour of the Applicant on the grounds that the Applicant did not have a locus standi and also that as the objection which the Applicant had set out in Affidavit was to the high rise nature of the development and its use solely as office accommodation, that the remedies sought would not alleviate any of her concerns given that the height of the development was not affected by the compliance orders nor was the use of the buildings in question and hence the remedies sought in these proceedings would not be of any real benefit to the Applicant.

98. My Judgment that the Respondents erred in the construction of condition three of the conditions attached to the planning permission cannot in my view be left without substantive affect. To do so would be to fail to uphold the law. The Applicants having litigated the questions in issue in these proceedings and having obtained a favourable judgment on that aspect of the case and they having in my view a locus standi in the proceeding, are entitled to an appropriate remedy.

99. In my view the appropriate form of remedy is Declaratory relief. The difficulty in granting an order of certiorari is that the compliance submission and in particular the compliance orders of the 7th of January and the 11th of February 2000 do not expressly deal with the rearrangement of the two internal courtyards into a single atrium with the necessary consequences which flowed from that. Thus one cannot identify any particular part of the compliance order in relations to blocks E and F which expressly sanctions this change. Undoubtedly this change was agreed to by the Respondents as being in compliance with the planning permission and that agreement is contained in the general statement in the compliance order which as follows

100. I am satisfied that the Respondents signified their agreement in these general statements to the changes which have been found ultra vires.

101. I am also of the view that the changes condemned in these proceedings are severable from all the other material in respect of which the Respondents lawfully gave their assent. However it is not possible to sever the text of these general statements so as to excise that which relates solely to the changes which are ultra vires.

102. If then the remedy of the certiorari were to be granted it could only be granted in respect of the entirety of the compliance order in respect of blocks E and F. Having regard to the fact that I have concluded that much of the material in respect of which this order signified agreement to compliance is intra vires and that there is no intrinsic connection between the aspects of the development which are intra vires and that change which is ultra vires , in my view it would be inappropriate to grant the remedy of certiorari in respect of the entirety of this compliance order.

103. In my view therefore the appropriate remedy is a declaration which should be in the following terms: