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Cite as: [2003] IEHC 8

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Parolen Ltd. v. Drogheda Corporation [2003] IEHC 8 (14 May 2003)

HIGH COURT

2002 No. 634JR

BETWEEN

PAROLEN LIMITED

APPLICANT

AND
DROGHEDA CORPORATION

RESPONDENT

AND
TALEBURY LIMITED

NOTICE PARTY

JUDGMENT of Finnegan P. delivered on the 14th day of May 2003

The principal relief sought by the Applicant on this application for leave to apply by way of Judicial Review is an order of certiorari quashing the decision of the Respondent dated 12th August 2002 reference 01/161 to grant to the Notice Party planning permission for the development of lands known as the Lakelands Dairy site at Marsh Road, Drogheda for a mixed use development, that is a mixed retail and commercial development.
The Notice Party's lands are situated to the south of the river Boyne. On the 27th November 2001 the Applicant obtained planning permission to develop a shopping centre and mixed use development on its site at Laurence Street, Drogheda to the north of the river Boyne and which development it is now carrying out. The
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Applicant has been diligent to ensure that there should be no irregularity attending the prerequisites for development of its site by the Notice Party and is not to be criticised for this. The Applicant successfully challenged by way of Judicial Review a rezoning of the Notice Party's lands. Again the Applicant participated fully in the planning process in relation to the application with which I am concerned. The present application for Judicial Review focuses on two aspects of the Respondent's decision –

1. Included in the application is a public road, Graves Lane, in respect of which the Applicant claims the Notice Party did not possess any or any sufficient interest to enable it to apply for planning permission.

2. The Respondent's decision was to grant planning permission subject to a number of conditions. Condition 2 provides as follows –

"2. Prior to commencement of development, the developer shall seek and obtain all relevant statutory permissions, including planning permission, to construct a footbridge over the river Boyne, linking the subject development and Drogheda established/traditional town centre area, as schematically indicated on submission 05/03/02, et al. The said footbridge shall form an integral component of the subject development permitted under 01/161 and shall be completed prior to occupation and operation of the subject development.

Reason: in the interest of proper planning and sustainable development and to provide appropriate linkages with the traditional town centre".

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The Applicant claims that the condition is ultra vires the Respondent and not capable of being severed and that accordingly the decision itself is ultra vires. The condition it is claimed is ultra vires for the following reasons –

(a) The construction of a pedestrian footbridge is not reasonably related to the subject matter of the planning application.

(b) The land upon which the footbridge would be situate is not within the lands the subject matter of the application and the Notice Party does not own or possess sufficient control over the lands to comply with the condition.

(c) There is not in the Respondent any power to attach to a planning permission a condition requiring a further planning permission to be obtained.

(d) The decision amounts to a partial decision on a larger development part of which larger development was not part of the application.

As to the first Reason the position is as follows. Within the site of the proposed development is a public road, Graves Lane, which runs from the southern bank of the Boyne river to the southern side of the Notice Party's site. The Notice Party's application for permission was made on the 9tn August 2001. Prior to that on the 25th July 2001 the Notice Party sought closure of Graves Lane under section 12 of the Roads Act 1993. Also on that date the Notice Party wrote to the Respondent in the following terms –

"You will note that the application includes for the development of lands that are outside the control of the applicant and in the ownership/control of Drogheda

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Corporation ... In this regard, we seek the permission of Drogheda Corporation for the inclusion of these lands (outlined in blue on the attached map) within the application boundary for the purpose of the making of a planning application ".

The letter was headed "Edward Holdings Limited" and it is clear that the application was made on behalf of that company. By letter dated the 3rd August 2001 the Respondent replied in the following terms –

"The Corporation has no objection to Edward Holdings Limited including property in the ownership/control of the Corporation at Marsh Road/South Quay, Drogheda in their application for permission under the Planning and Development Acts to develop the former Lakelands Dairy site at Marsh Road".

The application for planning permission was made in the name of Talebury Properties Limited, the Notice Party, and not Edward Holdings Limited: however in answer to an enquiry as to ownership in the planning application form the Notice Party disclosed the interest of Drogheda Corporation. Clearly there was no confusion in the mind of the Respondent - in a replying Affidavit sworn on behalf of the Respondent by Rachel Kenny on the 31st October 2002 it is deposed that the Notice Party is a wholly owned subsidiary of Edward Holdings Limited and that the Respondent had full knowledge of the Notice Party's proposed development and the effect the said development would have on the lands in the ownership/control of the Respondent.
The Applicants rely upon the decision of the Supreme Court in Frescati Estates Limited v Walker 1975 I.R. 177. Henchy J. at p.190 said –

"To sum up, while the intention of the Act is that persons with no legal interest (such as would be purchasers) may apply, for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would

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be exceeded if the word "applicant" in the relevant sections is not given a restricted connotation. The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interest of the common good, for proper planning and development.

Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development, as relates to the property in question. There will thus be sufficient privity between the applicant (if he is not a person entitled) and the person entitled to enable the applicant be treated, for practical purposes, as a person entitled".

In Keane & Another v An Bord Pleanala & Others 1998 2 ILRM 241 Keane J. considered the above dicta and regarded them as obiter and went on to say at pp 248 – 249

"It may be that the ratio of this decision is to be found in the first paragraph of this passage and that the second paragraph to the extent that it suggests that an application for planning permission can only be made by or with the consent of a person entitled to a legal estate or interest sufficient to enable him to carry out the proposed development should properly be regarded as obiter. One could readily envisage circumstances in which an application could be made by some other person which could not possibly be described as either "unnecessary " or "vexatious ". In the context of the present case however it is sufficient to say that the principle apparently

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laid down in Frescati Estates Limited v Walker must be strictly confined to cases in which the application is not made by or with the approval of a person who has a legal estate or interest in the relevant property sufficient to enable him to carry out the proposed development ".

In the circumstances of the present case on the basis of the correspondence which passed between Edward Holdings Limited and the Respondent and the terms of the planning application form and the circumstance that the Notice Party is a wholly owned subsidiary of Edward Holdings Limited and having regard to the Affidavit of Rachel Kenny to which I have referred I am satisfied adopting the approach of the Supreme Court in Keane & Another v An Bord Pleanala & Others that the Notice Party had locus standi to make the application. A substantial ground is not disclosed here.
As to the Applicant's second Reason it is necessary first of all to look at the provisions of the planning code dealing with conditions. The Local Government (Planning and Development) Act 1963 section 26 provides as follows –

"26(1) Where –

(a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and

(b) any requirement relating to the application of or made under such regulations are complied with

the authority may decide to grant the permission or approval subject to or without conditions or to refuse it; and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development

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of the area of the authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area and the matters referred to in sub-section (2) of this section ".

Sub-section 2 of section 26 provides that without prejudice to the generality of sub-section (1) conditions may include all or any of the conditions therein set out.
The Applicant firstly contends that the construction of the footbridge is not reasonably related to the subject matter of the planning application. The Local Government (Planning and Development) Act 1963 section 26 restricts the Planning Authority in dealing with an application to considering the proper planning and development of the area of the authority. The extent to which the Respondent considered the proper planning and development of its area is clear from the voluminous exhibits to the Affidavit grounding the application sworn by Anne Mulcrone on behalf of the Applicants on the 9th October 2002. In particular I have had regard to exhibit A.M. 12 to that Affidavit the report of Mr. Declan Conlon, Executive Planner of the Respondent. The application for planning permission at paragraph 2.4 proposed at a later date a link bridge between the site and the north of the town of Drogheda. The Respondent issued a request for further information on the 9th January 2002 which included the following request in the Schedule at 2. –

"2. Further to the request for further information above, the planning authority considers the provision of a pedestrian link between the subject site and the existing town centre to be critical. Such a link appears to form a key element of your argument in support of the proposal (as per your application submission in respect of

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the RIS). In this regard you are requested to submit comprehensive and achievable proposals for a pedestrian bridge between the subject site and the existing town centre on the north side of the river".

RIS refers to the Retail Impact Statement pursuant to the Retail Planning Guidelines adopted December 2000. The Notice Party furnished a detailed reply to the request in the course of which it acknowledged and recognised the significance of a pedestrian bridge link between the site and the north bank of the river and undertook to provide the required bridge but suggested that as the time required to do engineering testing, design the bridge, engineer it and liaise with various relevant bodies would cause unreasonable delay that a set of parameters for an achievable proposal which they submitted be considered and that the grant of permission should be subject to a condition that the approval of a final design for the bridge be subject to a separate planning application. Having considered the documentation exhibited in the Applicant's Grounding Affidavit I am satisfied that the condition is directed to the proper planning and development of the area of the Respondent. It is to a very significant extent relevant to the subject matter of the planning application which the Respondent was considering. A substantial ground is not disclosed here.
Next the Applicant contends that the land upon which the footbridge would be situate is not within the lands the subject matter of the application and the Notice Party does not own or possess sufficient control over the lands to comply with the condition. As to ownership of the lands I again have regard to the decision of the Supreme Court in Keane & Another and An Bord Pleanala & Others and the portions of the judgment which I have already quoted. On an application for planning permission for the erection of the pedestrian footbridge it could not be said that the application was
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either "unnecessary" or "vexatious". The Notice Party is the owner of the lands to the south of the river. To the north of the river is a public highway and in all the circumstances disclosed in the documents exhibited in the Applicant's Grounding Affidavit and which disclose that the Respondent considered the construction of such a pedestrian footbridge desirable it would be reasonable for the Notice Party to assume that accommodation could be reached with the Respondent in respect of any lands to the north of the river under their control. While mention is made of a foreshore licence there is no evidence before me that the proposal for a footbridge involves the foreshore or indeed the interest of any person other than the Notice Party and the Respondent. In all the circumstances the Notice Party is entitled to expect that the necessary permissions will be forthcoming and it cannot be said that the application for planning permission is either unnecessary or vexatious. In these circumstances for the purposes of the present application I am satisfied that the Notice Party has locus standi to make an application for planning permission in respect of the proposed pedestrian footbridge. This is not a substantial ground.

The next Reason given by the Applicant is that the footbridge will be constructed upon lands not the subject matter of the application. In this regard the Applicant relies upon the decision of the Supreme Court in The State (FPH Properties S.A.) v An Bord Pleanala 1987 I.R. 698. In that case An Bord Pleanala imposed a condition requiring the applicant for planning permission to carry out works to Furry Park House which was on land the property of the applicant and which adjoined the land the subject matter of the application. It was held by the Supreme Court having regard to the provisions of the Local Government (Planning and Development) Act 1963
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section 26(2)(a) that the carrying out of such works was not as required by that provision expedient for the purposes of or in connection with the development authorised by the permission. In relation to section 26(2)(b) it was there held that this must refer to works on the lands the subject of the application for permission. In relation to the section 26(1) McCarthy J. said –

"Mr. Brady, for the Respondents, falls back, so to speak, on the "catch all " provision of sub-section (1) arguing that sub-section (2) is merely a check list. I accept this general proposition, but it does not seem to me to advance this case any further. In my view, to enable the relevant authority to impose a condition of the like created by condition 1. would require expression in the clearest terms" .

While this statement is not without doubt I understand McCarthy J. to construe section 26 as limiting the power to impose conditions to conditions in respect of land the subject matter of the application (sub-section (2)(b)) or to lands in the ownership of the Applicant adjoining the lands the subject matter of the application where the condition is expedient for the purposes of or in connection with the authorised development (sub-section (2)(a))and sub-section (1) as not being sufficiently wide to empower the authority to attach a condition affecting land outside the application requiring works to be carried out. However as against this in the present case the Notice Party offered to construct the pedestrian footbridge and has submitted to the condition. While it did appeal the decision of the Respondent to An Bord Pleanala I do not know the nature of that appeal and the appeal has in any event been withdrawn. It is only the Notice Party who can be said to be adversely affected by condition 2. Insofar as the Applicant or the public at large are concerned or the Planning Authority are concerned before the pedestrian footbridge can be constructed the Notice Party
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must pass through the full rigours of the planning process and the planning permission may or may not be granted.

Again in Grampion Regional Council v Aberdeen District Council 1983 47 P and CR 633 the House of Lords distinguished a negative condition of the type of condition 2. and a positive condition upon the basis that the former is enforceable while the latter is not. There is as yet no decision to the like effect in this jurisdiction.
Having carefully considered the legal submissions on behalf of the Applicant, the Respondent and the Notice Party I find that in this regard the application discloses substantial grounds the issue being as follows: is condition 2 permissible under the Local Government (Planning and Development) Act 1963 section 26(1) and if not is the same severable.
With regard to the remaining two matters - power to attach to a planning permission the condition requiring a further planning permission to be obtained and the power to make a partial decision - these can be considered together. It is quite clear that the condition relates to the proper planning and development of the area of the Respondent. Accepting the dicta of McCarthy J. in The State (FPH Properties SA) v An Bord Pleanala as to the manner in which the planning code should be construed if it is found at the hearing of this matter that a condition requiring the construction of the footbridge is valid under section 26(1) of the 1963 Act I can find nothing in section 26(1) which would prevent a planning authority imposing a requirement that further planning permission be obtained in respect thereof prior to the development authorised by the planning permission being carried out. Such a condition facilitates
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the involvement of those affected by the proposed development and the general public to participate in the planning process: if they successfully oppose the granting of the further planning permission then the conditional permission will be ineffective. Again the obligation on the Planning Authority is to have regard to the proper planning and development of the area of the Authority and the condition such as that sought to be impugned seems to me ideally suited to achieving this subject only to the same being held valid on the determination of the issue at 2(b) above. The Applicant has failed to satisfy me that this Reason represents a substantial ground.
Accordingly I grant leave on the sole ground as follows –
The said decision of the Respondent is ultra vires in that condition 2. attached thereto is not a permissible condition pursuant to the Local Government (Planning and Development) Act 1963 section 26(1) and the said condition is not severable.
I make this order notwithstanding the existence of a right of appeal to An Bord Pleanala of which the Applicant has availed and which appeal is pending before An Bord Pleanala.
As to the Respondent's motion to strike out the application on the grounds that the same is frivolous and vexatious and/or premature I refuse that relief having regard to what I have found above.