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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kenny v. Dublin City Council [2004] IEHC 381 (8 September 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/381.html
Cite as: [2004] IEHC 381
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- 2 There are two preliminary issues that emerge from the pleadings in the present judicial review application, that of appropriateness and of promptness.
JUDICIAL REVIEW
[2002 No. 383 JR]
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTY
JUDGMENT of Mr. Justice Murphy dated the 8th day of September, 2004
1.1 Background
The issue arising in this application is the scope of a planning authority to certify compliance of conditions imposed by An Bord Pleanala ("the Board") where the Board required such compliance to be agreed between developer and planning authority and whether modifications are a "redesign by condition" or are a further process of design evaluation which require planning permission rather than a certificate of compliance.
The applicant, Mr. Kenny, had at all material times, lived adjacent to the notice party's ("Trinity College") development at Trinity Hall, Dartry, Dublin 6. He had been a member of the Dartry and District Preservation Association which had initially opposed the development.
The development was undertaken pursuant to the Board's decision of 4th August, 2000 which was subject to 19 conditions. The respondent's (Dublin City Council, "the Council") had originally granted permission on 11th November, 1999 (11/01/1999).
Application for judicial review in respect of the Board's decision was heard and refused by McKechnie J. on 15th December, 2000. On 2nd March, 2001 leave to appeal was refused.
A planning compliance submission was then made by Trinity College to the Council in August 2001 with an addendum in November. On 24th December, 2001 the Planning Officer stated his satisfaction with the details submitted. A compliance order (reference 0022) issued on 4th January, 2002 confirmed that Trinity College, the notice party, was in compliance with conditions 2, 6 to 9 inclusive and 17 of the planning permission 11/01/99 granted by An Bord Pleanála on 4th August, 2000. Development commenced on 5th January, 2002.
The present judicial review proceedings, instituted on 17th July, 2002 sought to quash the compliance order of 4th January, 2002.
The development was then completed. It consisted of a 25,000 m2 three block institutional residential development with 832 bedrooms in 180 apartments. The building blocks extended from three to seven storeys and within a 4.27 hectare site on Dartry Road in the City of Dublin.
In addition to the statements of grounds and opposition the court considered over twenty affidavits sworn and filed from 3rd July, 2002 to 25th March, 2004 and the evidence of several of the deponents in cross examination. Much of the affidavits, particularly the supplemental affidavits, consisted of submissions of the respective deponent rather than averments of facts. The court will confine itself to the factual elements and the submissions of parties' counsel.
1.2 Chronology
The development of the site had taken almost four and a half years from the original application for planning permission to the completion of the three blocks.
The major events were as follows:
12/04/99 Application to respondent Council for planning permission
14/09/99 Revised plans submitted pursuant to Article 35 of the 1994 Regulations
07/10/99 Revised Environmental Impact Statement and plans submitted
11/11/99 Grant of planning permission by Council subject to 14 conditions
24/05/00 Three day oral hearing of appeal to Board by Dartry and District Preservation Association (not a party to these proceedings)
04/08/00 Decision of Board subject to 19 conditions
03/10/00 Application for leave for judicial review of Board's decision
15/12/00 Review refused by McKechnie J.
02/03/01 Leave to appeal refused
/08/01 Planning compliance submission
/11/01 Planning compliance addendum
24/12/01 Planning officer's expression of satisfaction
04/01/02 Compliance order (ref 0022)
05/01/02 Commencement date
04/07/02 Leave for judicial review (Ó Caoimh J.) to quash compliance order
04/06/03 Planning grant by An Bord Pleanála for Special Olympics
20/06/03 Block 3 completed. Building occupied by Special Olympians participants
11/08/03 Block 2 completed
05/09/03 Blocks 1 completed
/10/03 Blocks 3 and 2 occupied by students
/01/04 Block 1 occupied by students
25/03/04 to Hearing of this application and related applications
23/04/04
2. Compliance Order
The planning compliance submission of Trinity College Architects, Murray O'Laoire, the Council dated August, 2001 is a lengthy detailed document of almost 70 pages subtitled "Report demonstrating compliance with An Bord Pleanála grant of permission, August 4th, 2000."
The 25 page addendum of November 2001 is, in turn, subtitled "clarifications, modifications and corrections to documents demonstrating compliance with An Bord Pleanála grant of permission August 4th, 2000".
The acceptance letter of 24th December, 2001 refers to details submitted in August, September, and November of 2001. The Council states that these are satisfactory and in compliance with conditions 2, 6, 7, 8, 9 and 17 of the planning permission of 4th August, 2000 and are acceptable to the Planning Authority.
The preamble to the order of 4th January, 2002 refers to those conditions, to the submissions and to the report dated 24/12/01 of Patrick F.A. McDonnell, Dublin City Planning Officer. That report had stated that "the details submitted are satisfactory and comply with the requirements of the conditions" and recommended that the applicant be so informed. The Senior Executive Office endorsed that recommendation.
The order itself was made by the duly authorised executive manager in the terms following:
"Order I direct that that the applicants, Murray O'Laoire Architects be informed that the details submitted in August, September and November are satisfactory and in compliance with Condition Nos. 2, 6, 7, 8, 9, and 17 of the planning permission granted by An Bord Pleanála on the 04/08/00 in respect of Plan No. 1101/99 and are acceptable to the planning authority."
3. Relief Sought
3.1 The applicant, Mr. Kenny, sought an order of certiorari quashing the Council's decision of 4th January, 2002 which had confirmed that Trinity College was in compliance with the aforementioned conditions of the planning permission granted by An Bord Pleanála on 4th August, 2000. Certain other declarations were sought that the respondent had acted without power and that the acceptance of the compliance submissions constituted unlawful material alterations to the development as permitted by An Bord Pleanála subject to conditions. At the hearing of the application the issues were narrowed to compliance:
Condition 2: omission of floor,
Condition 8: revised drawings and
Condition 9: retention of trees
3.2 Condition 2 was as follows:
The western arm of Building Number 3, that is on the full Dartry Road elevation, shall be reduced in height by the omission of the first floor. Revised drawings incorporated in this modification to building No. 3 shall be submitted to the planning authority for agreement prior to the commencement of development.
Reason: in the interest of visual amenity.
In relation thereto the applicant sought a declaration that the agreement of the Council that Condition 2 was complied with by a submission that involved the retention of the first floor in the western arm of Building Number 3 and the omission of another floor in the said building, and the consequent compliance letter P.0022 and order of the respondent of 4th January, 2002 constituted an unlawful material alteration to the development as permitted and conditioned by An Bord Pleanála.
3.3 Condition 8 was as follows:
Revised drawings of the proposed development, with floor plans and elevations corresponding in detail, shall be submitted to and agreed in writing by the planning authority prior to the commencement of development.
Reason: In the interest of orderly development.
Mr. Kenny sought a declaration that the agreement of the Council to the installation of boilers and boiler rooms in the roof spaces of block Nos. 2 and 3 with consequent alterations to the roof design and profile and the omission of plant rooms in the said buildings as shown on the revised plans and drawings submitted to the planning authority on 7th October, 1999 by way of acceptance of the compliance submissions made to the respondent and the consequent compliance letter constituted an unlawful material alteration to the development.
The applicant also sought a declaration that the agreement of the respondent to an increase in bed spaces in the buildings forming part of the development constituted an unlawful material alteration to the development.
3.4 Condition 9 thereof of An Bord Pleanála provided that:
"Existing trees shall be retained and areas shown as open space on the lodged plans shall be planted and landscaped in accordance with the plans submitted to the planning authority. The open areas shall be available for use by the students on completion of the proposed residential units. All landscaping works shall be carried out within 12 months of the completion of the buildings in the proposed development. Services and utilities shall not be laid within 10 metres of the bole of any of the trees to be retained. Prior to the commencement of the development the developer shall submit details and agree with the planning authority measures necessary to protect the trees to be retained. All trees to be retained shall be protected during the development by a timber post and rail fence which shall enclose the crown spread of the trees."
Reason: to protect the existing trees and in the interest of visual and residential amenity.
A declaration was sought that the agreement of the Council to the laying of services and utilities within 10 metres of the bole of trees and to the erection of timber post and rail fences which fail to enclose the crown spread of trees to be retained as part of the development permitted by An Bord Pleanála constituted an unlawful material alteration to the development.
4. Grounding Affidavit
The grounding affidavit of Mr. Kenny, the first of his four affidavits was sworn on 3rd July, 2002, (latter affidavits of 25th October, 2002, 9th December, 2002, and 13th January, 2003). The 12 exhibits provided a narrative of the planning history and detailed the conditions referred to (paragraphs 1 to 10).
The affidavit continued with submissions regarding the impugned decision of the respondent (paragraphs 11 to 32).
The background to the proceedings (paragraphs 33 to 45) summarised the complaints made to the planning department of Dublin City Council in October, 2001, regarding the unauthorised opening of a short cul-de-sac off Temple Road.
Mr. Kenny said that at that time he was aware that Murray O'Laoire, architects for Trinity College, had made a planning compliance submission in relation to the development. He made representations in relation thereto on 3rd October and 13th November, 2001. He received no reply. By 20th December, 2001, having reviewed the file, he did not discover any material which post-dated the compliance document.
He says that on 4th January, 2002 he made enquiries and was informed that a compliance letter had issued to the developer on 24th December, 2001 which was sent on 4th January, 2002 and that a commencement notice had been filed on or about 20th December indicating a commencement date of 5th January, 2002. From his own observations he believed the work commenced on or about 7th January, 2002.
On 10th January he received a copy of the compliance letter. He wrote to the Chief Planning Officer on 14th January, 2002. A reply was received on 17th January. He wrote again on 21st January with a 21 page memorandum recording all events, complaints and circumstances relating to the development. No further response was received until 20th February, 2002 when he received a letter from the Planning Enforcement Manager, Ms. Bernie Conlon, rejecting his complaints of non-compliance with the conditions of the permission. Specifically Ms. Conlon stated, in relation to condition 2, that Dublin City Council considered its decision, to agree to the omission of another floor instead of the first floor, to be intra vires. He sought clarification. A reply was received from the Executive Manager of the Planning Department, Kieran Dunne, dated 18th April. He was dissatisfied with the reply and wrote again on 14th May, 2002. Further correspondence ensued. He stated that the position as at the date of the swearing of the affidavit (3rd July, 2002) was that none of senior officials to whom he addressed letters of complaint had responded to his complaints or enquiries. Having previously applied unsuccessfully for leave to apply for judicial review of the grant he said that he was extremely reluctant to bring another application for judicial review. He said that he had endeavoured to exhaust every possible avenue, that his complaints and enquiries were not treated seriously and that the respondent did not intend to reconsider its decision to issue a compliance letter to the developer's architects. In the circumstances Mr. Kenny believed he had no option but to issue the present proceedings.
In his oral evidence to the court Mr. Kenny confirmed the matter of fact in that and subsequent affidavits. He narrowed the scope of his application to conditions 2, 8 and 9.
5. Statement of Opposition of Respondent
Dublin City Council pleaded that Mr. Kenny had failed to state any grounds which would entitle him to the reliefs claimed and had delayed to act promptly. The Council denied its decision was without jurisdiction and, further, denied the assertions relating to the breach of conditions.
In imposing conditions the overriding concern of the Council was visual amenity. The plans submitted by the developer's architects were in compliance with condition 2.
The installation of boilers had been the subject of extensive discussion with Trinity College's architects. The decentralised and relatively smaller boilers proposed fell within the category of plant and could therefore be located in such areas of the buildings allocated or envisaged for such use, which in the instant were the roof space(s). As a result of the redesign of some of the mechanical services in the buildings more room became available in the roof plant rooms thus increasing potential extra residential accommodation space on the top floors thereby reducing the bed spaces lost by the omission of the floor. The reason for the imposition of the planning condition was not to reduce the density nor the total number of students residing on the development.
There were no material variations that could not have been agreed by the respondent. No agreement amounted to material or significant change to the plans. The Council did not agree to any material variations from the 1999 plans nor did it act without or in excess of jurisdiction.
An Bord Pleanála applied a condition which specifically dealt with the Article 35 discrepancies. There was no misunderstanding on the part of the Council. It was fully accepted that Condition 8 did not authorise material or significant changes to the plans.
It had been the objective of the Council to protect and preserve the trees on the site. The details submitted in relation thereto had been complied with and monitored as a result of extensive consultations.
The decision by the Council to issue a compliance letter in relation to condition was that the Council was satisfied that there was compliance with requirements that services and utilities could not be laid within 10 metres of the bole of any of the trees to be retained.
If the Council had deviated in anyway from the decision of An Bord Pleanála, such deviation was de minimis. The Council sought to comply with the decision of An Bord Pleanála in its entirety.
6. Statement of opposition of the notice party
Trinity College opposed the applicant's application for judicial review by reason of delay and failure to act promptly and by reason of the failure to disclose material facts.
It denied that the decision of Dublin City Council was without or in excess of jurisdiction; that the requirements of the conditions were not complied with or that the 1999 plans had been departed from in the revised plan submitted with the compliance submission. Insofar as any matters had been agreed by the Council on foot of the compliance order, it was pleaded that they were outside the scope of any of the conditions relating, any such non-compliance was not material and was, de minimis.
7. Architect's affidavit: Conditions 2 and 8
7.1. Ms. George Boyle, architect of Murray O'Laoire was Project Architect for Trinity College's development. Her affidavit referred to the background to the development and the procedure regarding compliance (paragraphs 6 to 12). In that context Ms. Boyle stated:
"8. I say that for any such major development An Bord Pleanála cannot determine each and every aspect of the proposed development and I say that in my experience on any such major developments the Board determines the fundamental issues arising from the appeal and if planning permission is to be granted and if there are clarifications or modifications to the scheme required they generally by condition require that revised proposals be submitted for agreement with the planning authority.
9. I say this precisely what has occurred in this case in terms of conditions 2, 8 and 9 of the Permission. I say that it is clear from the decision that while the Board accepted the board principles of the Development as submitted there were certain issues that they wished to have clarified and/or modified and I say that in conditions 2, 8 and 9 they required that these matters be submitted for agreement with the Planning Authority.
10. I say that in my experience these conditions are not at all unusual, indeed I say that there would be very few decisions issued by the Board for a development of this size and scale which would not contain such conditions. I say that the matters which are generally left for determination between the developer and the Planning Authority are technical issues which are matters which the Board consider as a general rule are best left to be determined between the Planning authority and the developer in the event that the principle of the proposal is acceptable."
7.2 She then inter alia, referred to the difficulties of interpretation of condition 2 and the negotiations with the Council in relation thereto:
"19. Following a careful consideration of the terms and conditions of the permission, it became clear that a literal reading of Condition 2 was neither logical nor in accordance with considerations of common sense relating to the design and construction of buildings, for reasons set out more fully below. Indeed, the difficulties associated with a literal interpretation are acknowledged by the Applicant in his memorandum to Sean Carey dated the 22nd January, 2002. nonetheless, the Notice Party and Respondent herein were of the view that An Bord Pleanála had intended to grant permission and that an element of flexibility was to be offered in the interpretation of the condition provided it remained true to its intention and provided that 'modifications' as envisaged in Condition 2 were approved by the Respondent.
Condition 2 applied to Building No. 3 on Dartry Road which was the building closest to the applicants residence and within sight of his house.
Ms. Boyle referred to the consultations with the council as follows:
"20. I say that following consultants (outlined below in more detail), the Respondent approved revised drawings for Building 3 which incorporated the design of the 199 plans with the single exception that the western arm of Building 3 was a storey lower (with the exception of the northern "bookend" element referred to further below). The Respondent required that information be provided in the Compliance Submission and the Addendum in order that the interested public be aware of the extent of the modification agreed on foot of Condition 2.
21. Intensive consultations took place between the Respondent and Notice Party from January – December 2001 regarding the interpretation and implementation of Condition 2 as it became clear that a literal interpretation rendered it meaningless. This is because the removal of the 'first floor' in its entirety (the floor, associate rooms, spaces, and the directly associated external envelope) would considerably disrupt if not destroy outright the visual amenity of the Development in terms of overall design consistency. This is so for a number of reasons set out below."
Ms. Boyle referred in particular to the design, profiled three dimensionally, where the first floor was stepped out over a foot past the rest of the façade. The first and second floor were connected together intrinsically, both structurally and architecturally, in such a way that the removal of one of the floors would severely impact on the integrity of the building unless a major redesign was carried out. It was clear from conditions 2 and 8 that a major redesign was not permissible. Modifications to the design were envisaged by the condition. She believed that it was relevant to an understanding of the difficulties posed by a literal interpretation of the condition that the Dartry Road elevation (buildings 2 and 3) were described in all submitted documents as a "composite elevation". Only if the consistency of a setting/design principle were maintained along the whole extent of that street façade would the buildings be deemed architecturally authentic. This was in accordance with the request from Dublin City Council, the planning authority, in September, 1999 requesting "provision of a 'street' scene along the Dartry Road frontage similar to the strong scenes of streetscape experienced along Palmerston Park and Palmerston Road". This request was complied with by Trinity College in its submissions of 7th October, 1999 which provided as follows:
"The massing and skyline of the footprint shown to reflect the longer expanse of elevational plains as manifest in the continuous building along Temple Villas, at Palmerston Road and at Palmerston Park which are similarly set back from the road behind large mature trees. The consistency and articulation of these facades will satisfy the stipulations of provision 3 of the s. 35 provisions."
It was clear, she said, that design coherence and consistency was a requirement mandated by the Council. Ms. Boyle referred to the Article 35 request and the 1999 submissions. She said that the planning authority did not consider it to be An Bord Pleanála's intention to destroy the architectural integrity of the proposal nor to frustrate the proposal by imposing a condition that was structurally unenforceable.
She believed that the intrinsic design relationship between plan and elevation and between the first and second floors throughout the scheme may not have been clearly obvious to An Bord Pleanála. Drawings submitted with the 1999 submission and reviewed by the Board were simplified representative versions: they did not fully describe the modulation of the façade. The meeting of the Board on 3rd August, 2000 decided to grant permission in accordance with the inspector's recommendations "subject generally to the amendments shown in manuscript on the attached copy of the inspector's draft schedules".
Ms. Boyle believed that Dublin City Council determined that it was clearly not the intention of An Bord Pleanála to frustrate the implementation of the planning permission. A literal interpretation in condition 2 would have had such an effect. The Council interpretated the intent of the condition to mean that the height of the building be reduced by one floor and that the set back at the upper floor level be retained. In a complex development the Council had a certain degree of flexibility in determining conditions that were not entirely clear – an element of discretion was allowed under the condition which provided "revised drawings incorporating this modification to building No. 3 shall be submitted to the planning authority for agreement prior to the commencement of the development. A number of options were provided to the Council including a literal interpretation of the condition which was rejected by the Council as it did not further the explicit purpose of the condition, namely, visual amenity. The Council approved one option which accompanied the 1999 submission.
Ms. Boyle referred to Mr. Kenny's memorandum to the Assistant City Manager of 22nd July, 2002 which referred to the design problem which arises from the condition with regard to what he termed the "bookends" at each side of the western arm of Building 3. Mr. Kenny had said that "Residents could not reasonably object to the manner in which this design difficulty is resolved because it has to be resolved in good architectural terms".
7.3 The installation of boilers involved the provision of gas pipes underground and vertical duct risers which bring the gas to the boulder rooms which are to be located in the roof space on foot of the said Compliance Order. I say that as of the date of the application for leave, 4th July, 2002, and there vertical duct risers 90% of underground services in connection with the boilers had been provided to the three buildings. Moreover she averred that approximately 40% of the works necessary to provide the roof space boilers had been completed.
7.4 In relation to Condition 9 at the date of application for leave, approximately 85% of services and utilities affected by the condition had been laid on site. An inspection carried out by her on site on 11th May, 2002 they were then, in the main installed.
8. Arborist's and landscape architect's affidavits re: Condition 9
8.1 The affidavits of Mr. Joseph McConville (sworn 2nd September, 2002 and 22nd November, 2002) related to the protection of the trees on the site. Mr. McConville referred to the ongoing consultancy services in respect of the development, his conversations with representatives of the Parks Department of the Council, his extensive survey of the 275 trees on the site and their location within five separate zones. Mr. McConville said that it was impossible to apply a literary reading to condition 9 in its entirety given that buildings were to be located within 10 metres of the bole of circle of the trees. Approximately 5% (16/275), of the trees had services/utilities within 10 metres of the bole: this was not a material deviation and in his view amounted to substantial compliance with the terms of condition 9.
In his opinion the method chosen of rendering the entire area off limits for a contractor was an appropriate alternative ensuring the higher standard of protection for trees. Occasional access to the area was had by the contractors.
He estimated that 20/275 of the trees were not protected to the exact extent of their crown spread. This amounted to 7% in total and did not amount to a material deviation from the conditions. It amounted to compliance insofar as practicable with the terms and conditions of the permission, read as a whole. Tree protection measures of the highest degree had been undertaken.
8.2 Mr. McConville said that if a literal interpretation were to be given to condition 9 it would be necessary to erect a fence halfway across Dartry Road. The measures which were adopted provided a high degree of protection s was reasonably possible and in accordance with best international standards. He referred to BS 5837:1991 and to general rule of thumb when a development is under the supervision of an arboriculture specialist that construction works may occur closer but not more that one third of the minimum distance. The removal of the 17 trees was within the terms of the permission.
8.3 Mr. Terence Murray, landscape architect had been retained by the Dartry and District Preservation Association and, at the request of Mr. Kenny, the applicant herein, visited the site on 6th November, 2002 accompanied by Ms. Boyle, Mr. McConville and by Mr. Sheehan, Quantity Surveyor employed by Michael McNamara and Co., the second named notice party.
In his affidavit sworn on the 8th November, 2002, Mr. Murray said that he was familiar with the compliance submissions in respect of condition 9. He had read the affidavits of Mr. McConville and the relevant extracts of Ms. Boyles affidavit. He was informed by Mr. Kenny of failure to protect the crown spread of trees. He carried out an inspection and concluded that a high degree of attention in monitoring for possible tree damage was taking place.
Mr. Murray concluded that by far the greatest number of trees to be protected were on the outer side of a timber hoarding from Dartry Road to the Temple Road cul-de-sac; the crown spread of 14 out of 16 trees were not fully enclosed by the hoarding. The 10 meter exclusion zone was "being generally well observed throughout the sites". He was shown only two places where it had not been observed: one slight and the other where there might be a consequential risk but was unavoidable. He was informed by Ms. Boyle that a line of 17 trees had been removed within the terms of the Board's planning permission.
9. Project Officer's Affidavit
Mr. Tom Merriman, Acting Project Officer, of Trinity College, having referred to the background of the case averred that there was a failure on the part of the applicant to make material disclosure to the court at the date of the ex-parte application. In particular the applicant's affidavit of 3rd July, 2002 failed to disclose the extent of works carried out in relation to the development.
That affidavit also failed to disclose that the Taxing Master had made an order of costs against the applicant in the amount of €123,000 approximately in favour of Trinity College and failed to disclose certain correspondence.
He believed that the decision of An Bord Pleanála required Trinity College and the Council to agree how compliance with the conditions was to be achieved. The conditions contained no express requirement for consultations with third parties. He believed that the compliance submission as approved by the Council did no more than what was required by An Bord Pleanála which vested jurisdiction to determine these matters with the Council. In the circumstances he believed that the development was in compliance with the permission granted by An Bord Pleanála.
10. Affidavit of Anthony Gallagher
10.1 Mr. Gallagher, Architect, who had objected to the development was a founding member of the Dartry and District Preservation Association which was set up to represent local residents' objections to the proposed development. His affidavit sworn 24th October, 2002 replied to certain averments made by Ms. George Boyle, inter alia, at paragraphs 8, 9 and 10 of her affidavit.
He said that he completely disagreed with her averment that "for any major development An Bord Pleanála cannot determine each and every aspect of the proposed development" and that "the Board determines the fundamental issues arising from the appeal".
Mr. Gallagher said that he believed that the request from the Board for modification or redesign cannot, in his opinion, be equated with requiring a revised "proposal" to be submitted for agreement with the planning authority.
He referred to the oral hearing held by the Inspector of the Board.
He believed Ms. Boyle to be fundamentally mistaken in restricting the Board's role to that of merely deciding on principle if a proposal was acceptable. This only applied where outline planning permission was being sought.
He further took issue with regard to the acknowledgment of "the difficulties associated with the literal interpretation" of the Board's second condition. He considered the new proposal to be a material change because the effect on the façade design which would have followed the removal of the first floor would not be achieved. Trinity College, he believed, could not justify its failure to comply with the condition which the Board had imposed on the grant of planning permission by relying on what was referred to as a "design coherence and consistency" which was, Ms. Boyle had said "a requirement mandated by the respondent".
Mr. Gallagher said that he had been unable to discern any design features which, on removal of the first floor, could not have been accommodated within a design modification and was, accordingly, not a condition which was structurally unenforceable.
10.2 Further averments in relation to this matter underlined the disagreement between the two architects with regard to:
- compliance,
- information had by An Bord Pleanála at the oral hearing,
- the interpretation of the condition (flexible or literal interpretation), and
- the adequacy of plans approved by the Council.
He did not accept that "there was an error in the elevational drawings accompanying the October 1999 submission in relation to the roof pitches of building 3 which did not affect the height of the building."
10.3 Mr. Gallagher disagreed with the assertion that the installation of the boiler equipment and plant rooms in the roof space did not require planning permission. He also disagreed with Ms. Boyle's assertion that "the location of the boiler in these plant rooms was not a material deviation from the 1999 plans". Boilers and flues, based on his experience, required planning permission. They do not fall within any of the classes of exempted development. Irrespective of the boilers' size planning permission is always required for their installation and for a change in their location. He submitted that Ms. Boyle should have shown the gross floor area calculations and made exhibits available. There were no cross sections through the buildings to show plant room noise and air pollution emissions. No data existed to support the statement that "under no circumstances would the applicant be aware, visually or otherwise of the location of the plant room". He believed the averment that noise and air pollution potential had been grossly reduced to be loose and haphazard. No forecasts of such potential were disclosed to the planning authority. He believed that the approach adopted by Trinity College was an attempt to introduce complete flexibility into the re-ordering of internal spaces to suit the developer's needs from time to time. Mr. Gallagher expressed doubts as to the planning permissibility of such a course particularly in the institutional use of buildings.
10.4 He also referred to condition 9 relating to the services and utilities being laid within 10 metres of the bole of any tree to be retained and knew no basis upon which it could be argued that some meaning other than a literal meaning could be understood.
Mr. Gallagher believed that the Board could not vest jurisdiction in the planning authority with regard to such a matter.
10.5 Mr. Gallagher made submissions in relation to the manner in which Trinity College sought to depart from conditions expressly laid down by An Bord Pleanála. He believed it to be quiet wrong for a developer to seek to excuse significant and material departures from approved plans and impose conditions by treating them as "technical deviations".
11. Applicant's Second Affidavit
11.1 Mr. Kenny's second affidavit of 69 paragraphs, sworn on 25th October, 2002, was in reply to the affidavits of Ms. Boyle, (para. 7 above), Mr. Merriman, (para. 9 above) and Mr. McConville, (para 8 above), taking issue with the same.
While he and other affected residents in the neighbourhood agreed that the development was major they took issue with the description that it was complex. He repeated his objection to the functions of the Council as planning authority and An Bord Pleanála.
11.2 He referred to the oral hearing and the objections by the Dartry and District Preservation Association including himself and Mr. Gallagher. He referred to the considerable number of submissions, including extremely detailed submissions, the 150 page Inspector's report and the detailed, clearly worded, conditions. Mr. Kenny repeated some of the submissions made in his first affidavit and said that the conditions imposed by the Board were clearly and unambiguously worded. He said that the Board did determine all aspects of the development and left no issues in
abeyance which required clarification. The role of the planning authority was simply to ensure that the proposals submitted would be fully and faithfully implemented.
He maintained that the Council was not permitted under the guise of agreeing revised plans required by a condition imposed by the Board, to reconsider design matters which had already been considered by the Board in the course of the appeal process. A fresh application for permission was open to a developer who was dissatisfied.
He did not understand Ms. Boyle's reference to "viability" of Building 3 which he says is not a matter which is material to the proper interpretation of condition 2. She did not say, he pointed out, that it would not have been possible to redesign that building in accordance with such condition. An Bord Pleanála was in possession of the same documentation, plans and drawings as the Council.
The "design coherence and consistency" raised by Ms. Boyle was not binding on the Board. There was no factual basis for the assertion that the Board "did not give detailed consideration to the consequences of a literal interpretation of the condition".
He contrasted Ms. Boyle's reference to the "determination" of the Council with the phrase that it was "not the intention" of the Board which would give the former the power to rewrite and circumvent the decision of the Board.
Mr. Kenny referred to the retention of both "bookends" at the original five storey height and to the removal of the first floor. In that regard he says the Board made no stipulation with regard to what should happen to the bookend at the northern end of the western arm. The Board chose to select the first floor, not an intermediate floor, for removal, without making any reference to the bookends.
Mr. Kenny referred to the increase in height of the roof of approx. 0.5m by the change in roof pitch and believed it to be ultra vires the Council agree where it had deemed the sleeper roof pitch "to be of significant importance in terms of visual impact". This involved the Council in a design evaluation process.
11.3 Mr. Kenny referred to the application for a fire certificate and the location of the boiler house. The new fire safety certificate in respect of 1st August, 2001 application was granted on 27th September, 2001. That involved the removal of boilers from the previously approved basement locations in building 3 to the roof void level of that building facing on to Temple Road. He was not aware that an application in relation thereto had been made.
Trinity College had informed Mr. Justice McKechnie at the hearing of the previous application for leave to bring judicial review in November, 2000 that the boiler installations would be located in various plant rooms throughout building 3. The compliance submission was the first indication of any intention to place before the planning authority proposal for boiler installations in the roof spaces. He again referred to the requirement for planning permission and the concession made by Ms. Boyle that no application for planning permission was made for boilers or flues to be installed anywhere in the three building development.
Mr. Kenny referred to the consultations alluded to by Ms. Boyle regarding centralised water storage facilities. This was not a term used in the planning application or appeal process. Mr. Kenny said that such centralisation, irrespective of its location, would require a grant of planning permission. Ms. Boyle's reference to the Dublin City Development Plan, 1999, he believed, served no purpose. That was a reference to general site development standards 14.1.2 at paragraph 4 which stated as follows:
"Dublin Corporation is concerned for the proliferation of plant and tank rooms on top of the roofs of buildings in the city. For this reason, plant and tank rooms are being included in the calculation that the gross floor area of buildings. The Corporation considers that such facilities should be provided within the roof space of buildings unless the applicant can prove justification of the need, in exceptional circumstances, to locate plant and tank rooms outside the roof of buildings."
Mr. Kenny says that, as no application for planning permission was ever made in relation thereto, it would not have been possible for any such storage installations to have been the subject of a planning permission condition.
It was not possible for Mr. Kenny nor Mr. Gallagher to give full consideration to Ms. Boyle's assertion regarding to the concealment of plant rooms in the absence of any plans/drawings.
He further submitted that the reference to noise and air emissions being "greatly reduced" was meaningless as no data for boilers or flues was provided or contained in the environmental impact study.
11.4 The environmental impact of the proposed development was on the basis of the overall total of bed spaces which he said was not relevant to the re-ordering of room use from the original proposed uses which were approved by the Board. It did not follow, he submitted, that because the increased bed spaces were agreed by the Council that they are fully in accordance with the terms and conditions of the Board's planning permission. He believed that financial reasons were at least one of the considerations for the creation of these new bed spaces. Mr. Kenny noted that there were no exhibits available to show how an incorrect location could affect the number of bed spaces.
11.5 Mr. Kenny further submitted that it was clear from reading of the permission granted by the Board that condition 9 in relation to the trees was a stand alone condition and that Trinity College was not in any way entitled to speculate as to what the intention of the Council might or might not have been as Trinity College had no justifiable basis for claiming that the Council was entitled to interpret a condition imposed by the Board in such a way as would produce a result other than that dictated by its clear and express wording. Mr. McConville, on behalf of Trinity College and Mr. Murray on behalf of the Dartry District Preservation Association had made detailed submissions to the hearing by An Bord Pleanála who, in turn, laid down a clear and unambiguous condition.
11.6 Mr. Kenny in paragraphs 59 to 66 dealt with allegations of delay and in paragraphs 67 to 69 with the latter allegations of the disclosure of facts and cost order.
He repeated what he said in the first affidavit regarding his letters to the Chief Planning Officer and the Senior Planning Enforcement Officer within one week of the development commencing. The delay was attributable to the failure of the employees of the Council to adequately address or respond to his complaints. Prejudice results from Trinity College proceeding with an unauthorised development and the Council acting in excess of jurisdiction. Given the numerous representations made by him to the Council of which Trinity College was aware, any lapse of time prior to the institution of the proceedings could not be taken to indicate any acquiescence on his part in the unauthorised development.
11.7 In relation to the failure to disclose material facts he said that he was not allowed to enter the site and inspect the works in progress. He could only see the extent of the works from the upper floor of his house which were proceeding on foot of an ultra vires agreement and in breach of the planning permission.
The issue of costs was completely irrelevant to the issue raised in the subsequent proceedings.
12. Replying affidavit of Council
Patrick F.A. McDonnell, Chief Planning Officer of Dublin City Council, said that on 24th December, 2001 he advised the Assistant City Manager (Planning) that details submitted by the architects of the notice party were in compliance with certain planning conditions imposed in a grant of planning by An Bord Pleanála on 4th August, 2000, namely conditions numbered 2, 6 to 9, and 17. He said that several meetings and discussions had taken place with the notice party's architects and himself prior to the preparation of that report. He was satisfied that the proposal complied with the conditions.
The remainder of the affidavit deals in detail with the above mentioned conditions.
13. Mrs. Boyle's Supplemental Affidavit
Mrs. Boyle's supplemental affidavit of 25th November, 2002 referred, in particular, to the applicant's second affidavit and to Mr. Gallagher's affidavit.
She agreed that the role of the Board was to consider an application on first principles. She agreed that the Board's oral hearing had been comprehensive and detailed. However, there was no material in the inspector's summary of this hearing as to the origin of the wording of condition 2 and accordingly the Board may not have been aware of the consequence of a literal interpretation.
The Board was not in dereliction of its duty in indicating in its conditions that certain matters be agreed between the Council and the developer. Each and every aspect was not determined by the Board. This was not dereliction. In assessing various alternative proposals for the implementing of these matters the Council acted responsibly and properly executed its statutory function.
She referred to the lack of clarity and the requirement to agree.
She referred in further detail to the implementation of the conditions. Particular reference was made to the roof pitch where a minor change, sketched in the affidavit, did not affect the height.
The allegations of misleading Mr. Justice McKechnie regarding the location of boilers had not been referred to his court. The placing of equipment in plant rooms did not require planning permission. There is no associated impact on amenities. The architect's report with the April, 1999 submission indicated that plant rooms were to be provided in "ancillary top-storey areas such as plant rooms…" The Council deemed that, as no locations were in fact indicated to the Board as to where precisely the boilers were to be located and as the roof space plant areas were capable of accommodating such equipment, there was compliance with the conditions.
She disputed the allegation that material facts were withheld in previous proceedings or that the court was misled.
14. Mr. Kenny's Third Affidavit
Mr. Kenny in his affidavit sworn 9th December, 2002 said that Mr. McDonnell failed to exhibit the report prepared by him in respect of the compliance process. Mr. Kenny says that Mr. McDonnell had made a number of errors in his affidavit: that An Bord Pleanála did not seek any alteration to the design but simply imposed a condition requiring the first floor to be omitted; did not say that the height of the building was to be reduced in the interest of visual amenity but rather directed that the first floor be omitted in the interest of visual amenity which, he says, was not the same thing.
Mr. Kenny again referred to the omission of the first floor. He said that the Board sought the omission of that floor so that the building height would thereby be reduced. It was specific as to how the reduction in building height was to be achieved. When he agreed that there was no guidance given by the Board as to why, in particular, the first floor rather than any other floor was to be omitted, it did not relieve the respondent of the responsibility to ensure that the condition be complied with. He believed that the respondent had no right to seek to correct the Board's so-called "disruption" of the architect's design intentions which, he believed, had been done by the sweeping Article 35 request. He referred to the modification of the proposed scheme in the grant of planning permission.
Reference was also made by Mr. Kenny to the emphatic eaves detailing of the roof, to the roof space/boiler locations, to the bed spaces, trees and other miscellaneous matters.
15. The Building Contractor - The second named notice party
A statement of grounds of opposition was filed on 31st March, 2003 on behalf of Michael McNamara & Co., raising the absence of prompt application, acquiescence by the applicant and the applicant's failure to take any adequate or timely measures or remedies to protect his interest. The applicant was not entitled to the relief sought by reason of his failure to disclose material and relevant facts to the court.
The statement then detailed the second named notice party's opposition in relation to the conditions.
The statement of opposition was grounded in the affidavits of Mr. Tim Sheehan, Senior Quantity Surveyor of the second named notice party. Two affidavits – sworn 23rd April, 2003 and 5th September, 2003 - detailed the delay and the overall completion of the development. The development involved a workforce of 160 and a cost of €48.75 million of which sub-contract and third party suppliers amounting to €37.2 million. As of 23rd April, 2003 work on site had proceeded for 15 months and development was anticipated for a further 7 months. At the date of the latter affidavit works in the sum of almost €31.5 million (including V.A.T.) had been certified and additional purchase orders with suppliers and sub-contractors then amounted to in excess of €30 million.
16. Related proceedings
16.1 The applicant, in a separate set of proceedings had issued a plenary summons on 7th November, 2002 against Trinity College. The statement of claim sought certain reliefs including inter alia, an order directing the re-hearing of the previous judicial review leave application and an order setting aside the order for costs on the ground that the court was misled on that occasion. Trinity College, by a motion dated 7th March, 2003 sought to strike out the proceedings as, inter alia, disclosing no reasonable cause of action and an abuse of process. Proceedings were discontinued against Dublin City Council when this application was heard by Finnegan P. on 31st March, 2003, who in a reserved judgment, refused Trinity's application. On 20th June, 2003 the Supreme Court allowed the appeal and struck out the proceedings as showing no reasonable cause of action.
Moreover, on 17th July, 2002, the applicant commenced related proceedings under s. 160 of the Planning and Development Act, 2000.
16.2 Notwithstanding, on 3rd July, 2003 the applicant instituted further proceedings which, it was submitted, was substantially similar to the proceedings struck out by the Supreme Court with identical relief together with the relief seeking damages.
16.3 A motion by the respondent and notice parties to strike out proceedings by the applicant to set aside the judgment of McKechnie J. because of alleged fraud was heard on 25th March last. This court, having heard the submissions of the parties in relation to the affidavits filed, saw fit to strike out those proceedings and to proceed with the proceed with the present application.
17. Further Developments
Trinity College offered the organisers of the 2003 Special Olympic World Summer Games the use of the development subject to appropriate permission. Notice was given to the applicant, to the Dartry and District Preservation Association and to a neighbouring landowner, a notice party to the first judicial proceedings, informing each of them of the intention to apply for planning permission. A grant was made by the Council subject to 7 conditions. The applicant, inter alia, appealed that grant of planning permission to An Bord Pleanála. Trinity withdrew the offer to the Special Olympics. An Bord Pleanála decided to grant permission subject to 6 conditions on 4th June, 2003. Later that month the development was occupied on a non-profit basis by Special Olympics participants.
Building No. 2 was completed on 11th August, 2003, building No. 3 on 20th June, 2003 and applications had been received from students to commence occupation in October, 2003. As of 5th September, 2003, Building No. 1 had been completed and applications were received from students to commence occupation in January, 2004.
18. Decision of the Court
18.1 The applicant's opposition to this development has involved prolonged and overlapping plenary claims and judicial review applications. The judicial review applications in respect of the planning application for this major development had been appealed to An Bord Pleanála which was, in turn, the subject of an unsuccessful judicial review before Mr. Justice McKechnie.
The present application is in relation to a further stage, the procedure leading to the compliance order issued by Dublin County Council on 4th January, 2002.
The court has to consider the extent to which the matters complained of may have already been decided and, to the extent that it has not, whether the application has been made promptly.
If the application, in the circumstances, had been made promptly then the court should then proceed to deal with the substantive issue relating to the respective powers of Dublin City Council, as planning authority, and An Bord Pleanála in relation to compliance with the latter's conditions.
What underlies both of these issues is, of course, the scope of judicial review itself which is an examination of the procedures followed in relation to the planning process as distinct from an appeal of the decision of the planning authority.
18.3 The first issue relates to the appropriateness of these proceedings which seek, inter alia, an order quashing the compliance order of 4th July, 2002. Irrespective of the reasons for the delay, it is clear that the development was fully completed at the date of the hearing. The delegates from the Summer 2003 Special Olympic World Summer Games had been in occupation of building No. 3 (which had been reduced in height pursuant to condition 2) on a non-profit basis in June 2003 nine months before these proceedings commenced. The entire development was complete and students accepted for accommodation in October, 2003 (Buildings 3 and 2) and in January 2004 (Building 1) five and two months respectively before the matter came for hearing before this Court.
18.4 In such circumstances the order of certiorari, prayed for in the notice of motion of 18th July, 2002, to quash the decision that Trinity College was in compliance with planning conditions would appear to be inappropriate both in relation to timing and to the decision of the courts in the previous judicial review application which covered much of the same ground. Counsel for the applicant did not press the matter. It is clear that the granting of such order and, indeed, even the seeking of such order would require a finding of wrongdoing on a scale that has no application to the present facts. The court, accordingly, rejects the application for certiorari as being, in the circumstance, inappropriate.
18.5 The several declarations in paragraphs (b) to (f) relate to the powers and jurisdiction of the planning authority and the lawfulness of the compliance order.
The applicant seeks to quash the compliance order on the basis of a decision constituted an "unlawful material alteration to the development as permitted and conditioned by An Bord Pleanála".
The difference between complying with conditions and making alterations was not spelled out in the application. There was some submission as to the undesirability of "designing by conditions" but no clear submission as to the principles to be followed.
Moreover, the applicant had agreed in this third affidavit, that no guidance had been given by the Board as to why the first floor had to be omitted other than in the interests of visual amenity. It clearly left the matter to be agreed between Trinity College and the council.
The applicant also agreed that it was reasonable in some circumstances to resolve design problems such as the ends of the buildings along Dartry Road at what he expressively called "the bookends". Meetings were held between the developer and the planning authority and options discussed. There was no request for further information. Notice of commencement was served immediately after the order of 4th January, 2002.
The applicant had already unsuccessfully applied for certiorari in respect of the Board's grant. While he sought to impugn the compliance order the grounds for doing so are substantially those used in the unsuccessful application. He sought to distinguish the grounds by referring to the non-disclosure of information and the misleading of the court in the previous application before McKechnie J. It has been difficult to isolate the grounds relating to each evidential basis for such grounds from the grounds previously relied on. Neither the evidence on affidavit nor the oral evidence to the Court substantiates either non disclosure to the council or the Board nor misleading of the Court.
18.6 The second issue relates to the promptness of commencing the
proceedings arising in those circumstances. In the case of delay such an application would require cogent argument justifying such delay. The applicant was previously involved in an unsuccessful application for leave to apply for judicial review of the decision of An Bord Pleanála to grant planning permission which was refused by McKechnie J. in Kenny (No. 1) v. An Bord Pleanála [2001] 1 IR 565. A subsequent application for leave to appeal the refusal of the High Court was refused in Kenny (No. 2) v. An Bord Pleanála [2001] 1 IR 704.
Moreover, on 17th July, 2002 the applicant commenced related proceedings under s. 160 of the Planning and Development Act, 2000, in which Trinity College were named as co-respondent. Trinity College had also been present joined as a party to the proceedings by order of the High Court dated 20th January, 2003. Having regard to the nature of the development, it seems to this court that there is a very high onus on the applicant to commence proceedings with every possible expedition. The applicant despite the correspondence entered into with the council had failed to do so.
The planning compliance submission and addendum of August and November, 2001, the subject of the planning officer's satisfaction on 24th December, 2001, was the subject of the order on 4th January, 2002. The ex parte application was made on 3rd July, 2002 just within the six months required for an order for certiorari.
Order 84, rule 21(1) provides that all applications for judicial review should be made promptly. In the circumstances of this case, given the previous litigation and the application for an order of certiorari was not made promptly. The applicant's submissions regarding the delay in dealing by Dublin City Council with his correspondence must be taken within the context of previous applications. It appears to me unreasonable that the applicant, by correspondence with the respondent, could have had any realistic expectation that the planning authority would deem its decision regarding compliance ultra vires and, accordingly, rescind it. It does seem to me that neither Euro Container Shipping Plc. v. Minister for the Marine, High Court, 11th December, 1992 nor McEnarry v. Flynn, High Court, 6th May, 1998 are relevant. O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 also involved a first application, in that case by an individual relying on his public representatives, is relevant to the present application.
It does not seem to me that the letter of 14th January, 2002 to the Chief Planning Officer and Senior Planning Enforcement officer can, in the circumstances, substitute for a prompt application for judicial review given, at that stage, that the applicant was aware of the circumstances surrounding the decision and had previously made an application for judicial review of the decision of the Board.
The application was made nearly two years after the Board's decision to grant planning permission. The appeal to the Supreme Court had been refused in the previous judicial review application (Kenny v. An Bord Pleanála (No. 2) [2001] 1 IR 704).
Order 84, r. 21 requires an application to be made promptly and in any event within six months from the relevant decision. Finally, the judicial review proceedings were commenced by way of ex parte application on 3rd July, 2002 almost six months from the date of the Order. Mr. Kenny, in his affidavit grounding this application, stated that he was informed on 4th January, 2001 that a compliance letter had issued on 24th December, 2001.
The applicant had previously sought unsuccessfully to quash the grant of planning permission. In the present proceedings he seeks, as he is entitled to do, to enforce that grant in a strict manner by seeking to quash the compliance order not on the grounds of irrationality or unreasonableness but on the basis of the principle of vires. That should have been done promptly in the circumstances. As it was not, the applicant has not complied with the Rules of the Superior Courts.
18.7 There are, indeed, strong public policy grounds for requiring that the decisions of the nature of the impugned decision are commenced promptly having regard to the serious consequences for a developer and contractor who commences to carry out development on foot of such a decision (see the statements of Simon Brown L.J. in R v. Exeter City Council, ex p. Gill Thomas & Co. Ltd. [1991] 1 Q.B. 471 at 484 and Pill L.J. in R v. Newbury District Council, ex p. Chieveley Parish Council ((Times Law Report, 10th September, 1998 CA) [1998] EWCA Civ 1279 (23rd July, 1998) which adopted the Exeter City Council case).
Simon Brown L.J. distinguished between a mere procedure impropriety or failure by the planning authority to have regard to relevant considerations, on the one hand and the fundamental basis of ultra vires, as in the present case:
"… this application was not made promptly; no justification has been advanced for the delay; and (the developers) have both suffered prejudice. Generally speaking, these considerations would of themselves have been sufficient to bar relief. Certainly I would have found this so if the central object of the challenge were merely to procure a re-determination of the decision; if, for instance, the complaints were of procedural impropriety or failing to have regard to relevant considerations. But in fact this challenge has been advanced upon the more fundamental basis that, in light of section 51, the authority for one reason or another was simply not empowered to grant this planning application however they had approached the matter. In these circumstances, had I been persuaded of the correctness of this contention, I might possibly have exercised my discretion in the applicants' favour. That said, however, I cannot sufficiently stress the crucial need in cases of this kind for applicants to proceed with the greatest possible urgency, giving moreover to those affected the earliest warning of an intention to proceed. In this connection it should be remembered that there is conspicuously absent from the legislation any right to appeal in fact or law from a planning authority's grant of planning permission. And even when a right of challenge is given - the right of statutory application under section 245 to challenge a ministerial decision - it must be exercised within six weeks. Only rarely is it appropriate to seek judicial review of a section 29 permission; rarer still will be the occasions when the court grants relief unless the applicant has proceeded with the greatest possible celerity.
For reasons earlier given, this application fails and is dismissed."
It seems to me that the same reasoning applies to the promptness in challenging a compliance order as being ultra vires the Council.
18.8 Whatever prejudice the applicant might suffer, or might have suffered, at the time of the hearing of the application, is clearly disproportionate to the disruption to be suffered by each of the notice parties were the court to accede to the relief sought. It is clear, from the decision in Dekra Éireann Teoranta v. Minister for Environment [2003] 2 IR 270 (the Supreme Court) and O'Connell v. Environmental Protection Agency [2001] 4 I.L.R.M. 494 (Herbert J.) that delay is fatal in respect of challenges by way of judicial review to decisions to award public contracts which are not made at the earliest opportunity or in the case of the validity of a decision by the Environmental Protection Agency to grant or refuse a licence. The imposition of a non-expandable upper time limit within which an application for leave to apply for judicial review must be brought does not in any way suspend or lessen the requirement that every application for judicial review must be brought promptly within that stipulated period.
18.9 If I am wrong with regard to the issues of appropriateness and promptness I should consider the substance of the application. The applicant relies on Wicklow Trust Ltd. v. Wicklow County Council, (High Court, 5th February, 1998), reported in [1998] IEHC 19 wherein McGuinness J. stated that the question was whether the planning authority were correct rather than reasonable in their opinion. The same approach was adopted by Geoghegan J. in Gregory v. Dun Laoghaire/Rathdown County Council, (Unreported High Court, Geoghegan J., 16th July, 1996) and, by Murphy J. on appeal to the Supreme Court as follows:
"It was argued on behalf of the Council that the interpretation of Condition 2 as requiring only internal changes was at least a reasonable construction of the condition and, even if erroneous, it was a construction which the Council was entitled to put on the condition in a proper and bona fide exercise of their functions. In my view this argument is unsustainable. The proper function of the Council was the implementation of the condition imposed by the Board. If they erred in that regard the error was as to the nature of their duties rather than the performance of it. The only power exercisable by the Council was to agree details in relation to the revised plan on the basis of the implementation of the condition imposed by the Board. Any agreement reached without that condition having been fulfilled was necessarily ultra vires the Council."
The applicant submitted that this approach was approved and adopted, in O'Connor v. Dublin Corporation (Unreported, High Court, O'Neill J., 3rd October, 2002) [2000] 179 JR). That case also involved compliance of conditions attached to the grant by An Bord Pleanála by agreement between the developer and the Council.
Under the heading "Correct approach to construction of the planning permission", O'Neill J. concluded, at p. 28 of the unreported judgment that following Gregory v. Dun Laoghaire/Rathdown the appropriate test to be applied is that the conclusion or decision of the (Council) must be looked at to see that it is correct in law and not unreasonable in the sense of the test laid down in O'Keeffe v. An Bord Pleanála.
O'Neill J. continued:
"It necessarily follows from this, that what is required of this compliance procedure is no more than faithful implementation of a decision of An Bord Pleanála. The jurisdiction so invoked on the part of the respondents is a very limited one and of a ministerial nature. What they do have to do is to implement what 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." (at p. 29)
Mr. Justice O'Neill described the exercise involved as:
"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. The 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 Pleanála 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 the 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, confirmed in their agreement to proposals which faithfully adhere to and implement those conditions." (pp. 29-30)
While there are similarities between O'Connor and the present case it seems to this Court that the discretion of the Council to achieve compliance with the conditions in this case was wider. This was, indeed, implicitly recognised by the applicant in relation to the reduction by one floor and to the treatment of "book ends". It was conceded that there were alternative ways in which the conditions could be complied with. In O'Connor the modification (inter alia) of the development to provide a reduced proportion of glazing to give greater visual interest did not allow any alternative.
18.10 It is necessary to consider the criteria laid down by Hamilton C.J. in Boland v. An Bord Pleanála [1996] 3 I.R. 435 which was relied on in O'Connor. In imposing a condition that a particular matter be left to be agreed between the developer and the planning authority An Bord Pleanála is entitled to have regard to a number of factors. These include the desirability of leaving to a developer which is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of that enterprise and also leaving technical matters or matters of detail to be agreed between the developer and the planning authority. The enforcement of such conditions, the monitoring, supervision and enforcement of such conditions are left to the planning authority.
In that case the contention that it was an unlawful delegation of the Board's power to have matters agreed between the applicant and the planning authority was rejected by the High Court (Keane J.) and, on appeal, by the Supreme Court. The Board is entitled to grant permission subject to conditions. This is not an abdication of the decision-making powers of the Board.
In imposing conditions the Board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement and to state clearly the reasons therefor and to lay down criteria by which the developer and the planning authority can reach agreement (Boland v. An Bord Pleanála [1996] 3 I.R. 435 at 446-7).
In that case the conditions related to the appropriate contribution to be made by the developer. The principles established have, in my view, a wider application. The conditions imposed by An Bord Pleanála clearly gave the reasons for the conditions as: the interest of visual (and residential) amenity, orderly development and to protect existing trees and within that parameter imposed conditions which could be achieved in alternative ways to be agreed with the Council.
18.11 While it could be argued that there was no criteria laid down by which the developer and the planning authority could reach agreement, the conditions imposed by An Bord Pleanála had already been the subject of previous unsuccessful judicial review. That decision can no longer be challenged nor, indeed, does the applicant seek to challenge them. An Bord Pleanála referred to the Council the task of seeking agreement in relation to compliance with those conditions and, as is clear from the evidence, the Council interacted in detail with the developer as was referred to in the affidavits of Mr. P. F. A. McDonald and Ms. George Boyle.
The question arises whether the planning authority exceeded what was delegated to it. The relevant conditions have already been referred to together with the reasons for such conditions. The development had to be carried out in accordance with the revised plans except as might otherwise be required in order to comply with the other conditions. Condition 8 required revised drawings to be submitted to and agreed in writing in a similar manner in the interest of orderly development. The reduction in height by the omission of the first floor, in the interest of visual amenity, was to be done by way of revised drawings incorporating the modification which was to be submitted to the planning authority for agreement prior to the commencement of development. Several solutions were proposed in relation to compliance. The Council expressed its satisfaction with the revised drawings eventually submitted. There was no requirement that full drawings be submitted.
In a similar manner condition 9 in relation to the trees to be retained, in order to protect the existing trees and in the interests of visible and residential amenity, were dealt with by An Bord Pleanála. While there would not appear to have been literal compliance (and it was submitted that such was not possible) both experts agreed there had been substantial compliance - at least a high degree of attention in monitoring for possible tree damage had taken place. On the evidence of the applicant's own expert the exclusion zone was generally well observed throughout the site. The court is of the opinion that literal compliance was neither possible nor required.
Agreement with the Council was formalised by way of the compliance order of 4th January, 2002, the subject of these judicial review proceedings.
18.12 Compliance submission and order is a practical procedure with the necessary formality to deal with the reference back to the planning authority in relation to the relevant conditions. Moreover, it is clear that the applicant was informed of the compliance order at the time it was made and, notwithstanding the correspondence referred to, did not initiate the present proceedings until the eve of the expiry of the six months time limit.
The faithful implementation of the decision of An Bord Pleanála in relation to its conditions depends in the first instance on the degree of specificity of those conditions. The more specific, the less discretion there is regarding their implementation. The more general they are the more scope there is between the planning authority and the developer. There is clear evidence that there are several ways whereby a general condition such as that relating to the western arm of building number 3 could be reduced in height in the interest of visual amenity by the omission of the first floor.
The requirement of having revised drawings of the proposed development with floor plans and elevations corresponding in detail submitted to and agreed by the planning authority in the interests of orderly development is practically complied with when the authority agrees in writing.
There is evidence that floor plans and elevations corresponding in detail were considered in the course of the extensive interaction between the planning authority and the developer that there were revised drawings, notwithstanding with some errors.
As is clear from Boland the Board is entitled to have regard to the desirability of leaving to a developer, who is hoping to engage in a complex enterprise, a certain limited degree of flexibility having regard to the nature of the enterprise. It seems to me that the balance between that flexibility and the conditions in relation to the stated reasons is a matter which, in this instance, has been left by An Bord Pleanála to the planning authority. To the extent that the enforcement of such conditions requires both monitoring and/or supervision, it is appropriate that this be dealt with by the planning authority. An Bord Pleanála has lawfully delegated the process of agreement with the developer to the planning authority.
In the circumstances it follows that agreement was reached within the scope of the conditions imposed, in conformity of what had been decided in essence by the Board.
It seems to me that the procedure by which submissions were made in relation to planning compliance were, in the circumstances, both appropriate and expedient.
While the compliance process does not involve the procedures pertinent to the planning process, including the right of any member of the public to object, the public is entitled to access to the agreed drawings on the planning file.
18.13 It needs to be emphasised that judicial review proceedings is not an appeal. Even if there had been any frailty in the manner in which that power had been exercised there are other discretionary factors which the court would have to take into account, such as the applicant's lack of promptness and the circumstances of work having been commenced for several months, and the appropriateness of the certiorari point and the full disclosure of all relevant facts.
In the circumstances, having regard to the procedural, substantive and discretionary grounds, the court refuses the relief claimed.