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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kenney Construction Ltd. v. An Bord Pleanala [2005] IEHC 30 (10 February 2005)
URL: http://www.bailii.org/ie/cases/IEHC/2005/H30.html
Cite as: [2005] IEHC 30
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Neutral Citation No: [2005] IEHC 30
THE HIGH COURT
DUBLIN
Case No. 2003/693 JR
2003/694 JR
KENNEY CONSTRUCTION LIMITED
Applicant
and
AN BORD PLEANALA
Respondent
AND AN TAISCE AND DONEGAL COUNTY COUNCIL
and
Notice Parties
KEENEY CONSTRUCTION LIMITED
Applicant
AND AN BORD PLEANALA AND RGDATA
Respondent Notice Parties
APPROVED JUDGMENT
DELIVERED BY MR. JUSTICE I. O'NEILL
ON THURSDAY 10TH FEBRUARY 2005
MR. JUSTICE O'NEILL DELIVERED HIS JUDGMENT, AS FOLLOWS, ON THURSDAY 10TH FEBRUARY 2005.
These two applications for Judicial review relate to Two decisions of the respondent who refused planning permission for two developments located near Donegal town on the N56 Road, which goes from Donegal town towards Killibegs.
The applicant was granted two planning permission by Donegal County Council on 16th October 2002. Two appeals were taken against these permissions: one by An Taisce, relating to the larger mixed development, and the other by RGDATA, that related solely to the supermarket development. The two developments were located on sites which were beside each other. The applicant was the applicant for both planning permissions. The area of the two developments comprised of 10.8 hectares or thereabouts. The larger one was for mixed development, which included a retail element; two-car showrooms; a courthouse and Garda Station; health centre; educational centre; start-up business acres, and proximately 570 car-parking spaces. The smaller one was for a supermarket of approximately 2300 square metres or thereabouts, with approximately 250 or 260 car-parking spaces. Two entrances an exits were proposed: one directly on to the N56, and the other Via a small road there already.
The entrance into the mixed development was to be via a roundabout on the N56 leading into an internal roundabout, and off that roundabout there was a service entrance into the supermarket. As I have said, An Taisce appealed the larger mixed development and RGDATA appealed the supermarket development permission.
On 8th August 2003 the respondent allowed both appeals and refused planning permission for both developments. These separate applications seek judicial review of both decisions to refuse and orders of certiorari quashing both decisions of the respondents.
The two applications are identical, save in one respect. In the application relation to the supermarket, the applicant, in addition to the grounds which are common to both cases, makes the case that the appeal to the respondent by RGDATA was, by virtue of section 4(2) of the Local Government Planning and Development Act 1992, invalid because RGDATA did not comply with the provisions of section 4(1) in that the application failed to properly identify them by reason of the absence of the word "limited" in the description of name of the appellant. In all other aspects, the applications are the same; hence, this judgment will determine both applications.
What is at issue here is an application for leave.
The applicant is obliged to, by section 82(38)(a), as inserted into the 1963 Local Government Planning Development Act, by section 19(3) of the 1992 Act, to demonstrate what are described as substantial grounds for contending that the decision of the respondent are invalid.
The leading statement on what are substantial grounds is that of Carroll J in McNamara v An Bord Pleanala [1995] 2 ILRM 125 in which judgment was delivered on 24th January 1995, where she says as follows:
"What I have to consider is whether any of the grounds advanced by the appellant are substantial, grounds for contending that the board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are 'substantial'. A ground that does not (for example, where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not. It I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit."
I propose dealing with the ground in relation to the identity of RGDATA first. The applicant says that the absence of the word "limited" is non-compliance with section 4(1), in that the appellant was not named correctly. The respondent submits, relying on the case of Blessington & District Community Council lt v Wicklow County and Aosog Centres Ltd, notice parties [1997] 1 IR 273 that the non-inclusion of the word "limited" – and there is no dispute that it was not included – was an omission of a nature that was so insubstantial and technical that judicial review is not warranted. They submit that there was no misleading as to the identity of the appellant or his address, and indeed no confusion on that either.
The applicant says that the Blessington case is properly to be distinguished because there, it was a planning application that was at issue and here it is an appeal subject to the provisions of section 4(2), and no equivalent statutory provision affects a planning application; or relevant elements of it. Hence it was submitted that non-compliance with section 4(1) results automatically in invalidity under section 4(2), and the respondent had no jurisdiction to entertain that appeal and no discretion in relation to that invalidity.
The primary issue it would seem to me raised, is whether the omission of the word "limited" in the name of RGDATA was, in fact, a non-compliance with section 4(1). In my view the point made by the applicant in this regard is purely technical. There is no suggestion of any misleading or confusion as to the identity of RGDATA. The point taken has nothing whatsoever to do with, or any bearing on, the substantial issue in the appeal or the application. It has nothing whatever to do with the merits of each of the two proposals for planning permission, and no prejudice whatsoever is caused to anyone by the omission of this word.
In my view it is fair and proper to characterise the point as a purely technical, insubstantial, peripheral and, indeed, trivial one. That being so, the contention that section 4(1) has not been complied with must be regarded as lacking in sufficient weight or substance to warrant the intervention of this court by judicial review. In my viewthe reasoning of Kelly J in the
Blessington case at page 282 of the report is entirely apposite here as well. Hence I would refuse leave on this ground.
Now the grounds common to both applications may be, I suppose, summarised as follows. Firstly that the respondent in its decision mixed consideration of the
Two proposals and did not consider each separately, or on a stand-alone basis as required by statute, and hence acted ultra vires. Secondly that the joint report of the inspector, in relation to both development, did not expressly deal (even in a summary form) with the opinion and the case made and the assessments of Boreham's, a firm of consultant engineers retained by the applicants, who had advised on the traffic impact of the proposal. As a consequence of this, the applicant makes the case that the report was not a fair and accurate report to the Bord, and hence the applicant was denied fair procedures, as was envisaged in the case Murphy v Dublin Corporation [1972] IR 215 and in the case of Simonivitch v An Bord Pleanala (unreported) judgment of Lardener J on 24th July 1988. Thirdly, that the report did not consider of the retail impact of each development on a stand-alone basis, and failed to apply the Retail Planning Guidelines to the supermarket alone, but considered, only, the application of the guidelines to both developments taken together, and the inspector incorrectly applied the guidelines to the mixed developments, most of which is of a non-retail use. Hence, the Bord did not have the benefit of a consideration by the inspector on a correct basis, of the retail impact of each development on a stand-alone basis. As a consequence, the report was not a fair and accurate report because the inspector had misdirected himself in this regard. Fourthly that the decisions were ultra vires because both the Bord and the inspector failed to have regard to the information in the environmental impact statement and failed to carry out an environmental impact assessment. It was also contended that there were inaccuracies on the face of the decision which vitiates its validity.
The first ground. The ground was based on an interpretation of the second reason for refusal. In both appeals Mr. Galligan contended that a correct reading of this second reason, in both cases, leads to the conclusion that the Bord mixed the two developments together and treated them as uniform, or one entity, and that the fact that the same reason was given in both applications for refusal tends to confirm that view.
It is important to be mindful of the text of the second refusal at that stage – I propose only to read it in one case, for the purposes of this object in they are identical – and it reads as follows:
"It is the policy of the planning authority as expressed in the current development plan for the area to ensure that new commercial and retail developments strengthen the existing town centre of Donegal. Having regard to the relative distance of the site of the proposed supermarket development, together with the proposed associated large-scale development, referred to in planning register reference number 01/469 from the centre of Donegal town on primarily in zoned land, it is considered that the proposed development would constitute a directly-competing retailing and commercial centre, lacking synergy with the town centre and undermining the established uses facilities and viability of the existing town centre.
Therefore, the proposed development would conflict with the reasonable policy of the planning authority and the provisions of paragraphs 24, 26 and 65 of the Retail Planning Guidance for planning authorities issued by the Department of the Environment and Local Government in December 2000."
It goes on to say:
"Notwithstanding the general acceptability of additional supermarket facilities of this scale in the town of Donegal it is considered that the proposed development would be contrary to the proper planning and development of the area."
It is the contention of the applicant that within the text of this refusal there is an internal reference from one development to the other, indicating that the Bord considered the two applications as a single or mixed entity, or intermingled the two together impermissibly.
I cannot agree with that contention. If one carefully reads the text of the refusals, it is quite clear applying grammatic norms, that the Bord was careful in its language to keep the two segregated.
From each other. If one takes the part of the refusal, to which specific reference is made, as follows:
"Having regard to the relative distance of the site of the proposed supermarket development together with the proposed associated large-scale development, referred to in planning register 01/469, from the centre of Donegal town and from primarily unzoned land, it is considered that the proposed development would constitute a directly-competing retailing and commercial centre lacking synergy with the town centre and undermining the established uses and facilities of the existing town centre."
It seems to me that, using the kind of language that is used there, care has been taken to ensure that the two are kept apart and, in fact, are indeed in the text kept apart. I would have to reject the submission that there is in the language of this refusal the kind of intermingling that is contended for by Mr. Galligan. I think the same applies to the refusal in the two appeals.
Having regard to the proximity of both developments to each other and the fact that there was a large retail element in the mixed development, and the inevitability of similar planning consideration arising for both, the similarity in the second reasons for refusal in both applications cannot, in my view, support the contention that the Bord intermingled and treated both developments as a unified proposal.
For that reason, and given that this ground is advanced on the basis of the text of these two refusals, it seems to me that there is in this particular ground no sufficient weight or substance to warrant the granting of leave to apply for judicial review on that ground.
The next matter that was raised by the applicant has to do with the fairness or accuracy of the inspector's report. He challenges the fairness and accuracy of the report on a number of grounds. Before going into that it is worthwhile getting the notion of fairness and accuracy in this context settled. The starting point is a passage from the judgment of Walsh J in the case of Murphy and v Dublin Corporation [1972] IR 215. I suppose it is worth noting that this was a case which was not really about the functions of a planning inspector or an equivalent inspector under the Housing Act. The real issue in that case, and it is indeed a case of considerable historic importance at this stage, was the question of executive privilege. But that notwithstanding, the statement by Walsh J has come to be regarded as the classical statement of the function of an inspector, in that case under the Housing Act, or indeed an inspector under the
Planning Acts, and it is as follows:
"In this context it is necessary to examine the precise function of the inspector in this role. By statute, the minister is the one who has to decide the matter and not the inspector. In doing so the minister must act judicially and within the bounds of constitutional justice. No direct assistance is obtainable from the statute as to the precise functions of the inspector or of his powers. It is clear, however, that insofar as the conduct of the minister is concerned, he is acting as recorder for the minister. He may regulate the procedures within the permissible limits of the inquiry over which he presides. Inasmuch as he is there for the purpose of reporting to the minister, the inspector's function is to convey to the minister, if not a verbatim account of the entire of the proceedings before him, at least a fair and accurate account of what transpired, and one which gives accurately to the minister the evidence and the submissions of each party because it is upon this material that the minister must make his decision and no other."
He goes on;
"The inspector has no advisory function nor has he any function to arrive at a preliminary judgment which may or may not be confirmed or varied by the minister. If the inspector's report takes the form of a document then it must contain an account of all the essentials of the proceedings over which he presided. In my view it is no part of his function to arrive at any conclusion [and so on]."
There is no doubt that the function of a planning Inspector is somewhat different in that he is obliged of course by statute to arrive at a recommedation and to express that in his report. But in all other respects it can fairly be said that his functions are accurately described in that passage. Indeed, attention was drawn to that difference by lardener J in the Simonivitch case, where he says at the bottom of page 271 – this is in the extract from O'Sullivan and Shepherd - - where it reads:
"Secondly, since the determination of Murphy v Dublin Corporation the Local Government Planning and Development Act 1976 has transferred to An Bord Pleanala the functions of the minister in relation to appeals. Thirdly, an inspector who formally had no function to advise or make preliminary judgment is now by section 23 of the 1976 Act required to include in his written report to the Bord a recommendation relating to the matter with which the oral hearing is concerned.
In that particular case, the Simonivitch case, what was in issue was a planning application in relation to a quarry and it was contended by an objector that the very site of the quarry was the site of the Battle of the Boyne. The following passage from the judgment of Lardener J illustrates his criticism of the report in that case. He says:
"In my view this report fails to give a fair and accurate account of the evidence and the submissions on this issue to the Bord. It does not have to be a verbatim account, but the considerable scope and extend of Col. O'Carroll's evidence was referred to in the report with a brevity which rendered the report inadequate. Further it does not report that Col. O'Carroll's evidence was specifically focused on the quarry site, in comparison with Dr. Hays-McCoy's general treatment of the battle, which did not specifically refer to this hill and could be considered as supplementing Dr. Hays-McCoy's account, or alternatively, if not so regarded, might be considered as directly in conflict with it. Neither the body of the report nor the assessments seem to me to represent adequately these matters to the Bord.
In essence, therefore, what is involved in giving to the Bord a fair and accurate report is one which fairly sets out and fully sets out for the benefit of the Bord the relative contentions in regard to whatever the issues are in the planning application, but bearing in mind that the Bord already have a variety of material before them, and it would be superfluous for any report to recite material which was clearly available and highlighted in other documentation. But the essence of it is that the report must present to the Bord a fair and accurate picture of the proposal and of the reasons for it and of the reasons against as made by the objectors and as made by the applicant in the planning permission.
The first issue that arises in this context is the traffic impact issue. The applicant's case is that the report does not expressly deal with the case made by Borehams, even in a summary form. There is no
Complaint about the lack of any relevant information on the traffic issue being before the Bord, but the complaint specifically is that the report did not engage expressly with the opinions or assessments of Borhams on the traffic impact issue, and hence, in the absence of that, the Bord were deprived of an essential element and, as a consequence, the applicant was disadvantaged.
Having read the report it is clear that there is extensive canvassing of the traffic issue in the form of a synopsis of report from Donegal County Council officials, NRA reports, submissions by the appellant, responses thereto by the applicants, submissions from the applicant, and the assessment by the inspector. In addition to the report, the Bord also had the planning file of the Planning Authority of Donegal County Council, which included the Environment Impact Statement, Part 7, of which deals with the traffic impact issue, and the submission by the applicant's engineers, Borhams, to the planning authority, which in fact persuaded the planning authority that the traffic impact of the development was not a reason for a refusal.
No complaint is made by Mr. Galligan of any dearth of information before the Bord. Indeed, Mr. Galligan was unable to point to any specific aspect of the applicant's case on the traffic impact issue not mentioned in the report of the inspector.
In the light of the above, it would appear to me that the absence of an expressed reference in the report to the expert opinion of Borehams or their assessment, either by way of acceptance of it or rejection of it, would not have added anything to the report and hence, the material before the Bord, that was not abundantly manifest from all of the material that was in fact before the Bord including the report itself. I cannot see that the absence of such an express reference or engagement in the report has the effect of rendering the report not a true and accurate report. Hence, I have come to the view that this ground lacks sufficient weight or substance to justify the grant of leave.
It is of course clear that the inspector in this assessment rejects in whole the suitability of the proposals for both developments, primarily because of the traffic impact problem. It is implicit in this that he disagrees with the case made by Borhams, which in fact had found fruition in the planning permission granted by the planning authority.
This next brings me to the question of the retail impact. The applicant contends that the inspector did not consider each development on a stand-alone basis either generally or for the purposes of the Application, of the Retail Planning Guideline. Whilst there is one report dealing with both developments, it is clear that the internal structure of the report is to consider each appeal separately. Thus the submissions of each appellant are separately set out and the responses to them. At the end of the report there are separate recommendations, although in similar terms in respect of each development. Having regard to the proximity of both two sites, the fact that the site layout drawings included both developments, and the fact that the applicant in both proposals was the same, it is hardly surprising that there was a single report and that in the assessment similar planning considerations arose; for example, traffic impact and so on.
The applicant contends that the approach adopted by the inspector in producing a joint report deprived the Bord of the inspector's assessment of the relevant planning considerations in respect of each development separately or on a stand-alone basis, and hence for that reason the report was not a fair and accurate report.
In this regard the issue is whether the treatment by the inspector of these issue in this way rendered the report unfair or inaccurate in the sense that the applicant's case on these issues was not fairly laid out so that it could be fully considered by the bord. Could it be said that this approach by the inspector inhibited the Bord from considering each proposal on a stand-alone basis?
On the traffic issue, the access to each development is clearly identified and explained. The volume of the traffic relating to the supermarket was clearly identified, the number of car-parking spaces in both developments clearly set out, and the impact of each access on the N56 clearly described. Nothing that has been advanced by evidence or submission by the applicant persuaded me that the Bord would have had any difficulty in treating each proposal on a stand-alone basis, having regard to the traffic impact of each development. Hence, in my view, there was no unfairness or inaccuracy in the report in this regard which would amount to a breach of the applicant's right to fair procedures.
Insofar as retail impact is concerned, it is clear from pages 44 and 45 of the report that the inspector first deals separately with the supermarket proposal and its impact and then goes on to consider the mixed use development. True, there is some overlapping but, nonetheless, could it be said that the Bord reading this report would in some way be inhibited from distinguishing between the retail impact of each development separately? The supermarket is very
Fully described in the proposal. The nature and extent of the mixed use development is also clearly set out. Insofar as the proposal for that development is only for site development there is a lack of final precision concerning the exact content of the final development in terms of its scope. Nevertheless, the intended uses are clearly set out in the proposal and discussed in the report. Allowing for this lack of final precision in this regard, I would be quite satisfied that the joint approach adopted by the inspector in this report, such as it was, would not have inhibited the Bord in assessing the retail impact of each development on a stand-alone basis. Hence, in my view, the report was not rendered unfair or inaccurate in the sense that the Bord was prevented from getting a clear account of the applicant's proposals and the merits of them, and the case that he was making on retail impact. Again, in this regard, no specific matter was referred to as being obscured from the view of the Bord by the impugned approach of the inspector.
It was contended that looking at the mixed development as a stand-alone proposal, the inspector or the Bord were not entitled to have regard to the Retail Planning Guidelines. It was conceded, however, that the Retail Planning Guidelines were applicable to the retail element in this proposed development.
It the light of paragraph 65 of the Retail Planning Guidelines it seems to me that objectives 3, as contained in paragraph 24, and objective 4, as contained in paragraph 25 of the Retail Planning Guidelines, and objective 5 as contained in paragraph 26 would appear to be applicable and, indeed, these objectives are seen to be cat in terms broad enough to necessarily encompass the kind of mixed uses that were to be contained in this mixed development. The significantly large retail element of this development would, in my opinion, clearly bring the matter within article 65.
Beyond contending in the broadest and unspecific terms that the Retail Planning Guidelines does not apply to the non-retail parts of the mixed development, the applicant has failed to demonstrate why or in what way the inspector was incorrect in invoking paragraphs 24, 25 and 26 as applicable to this development in its totality.
I am satisfied that the applicant has failed to demonstrate that the report of the inspector was unfair or inaccurate in its consideration of the Retail Planning Guidelines to either of the two proposals. I am also satisfied that the applicant has failed to advance weighty or substantial grounds to contend that the Bord in having regard to paragraphs 24 and 26 of the Retail Planning Guidelines was acting ultra vires.
This brings me finally to the question of the inaccuracies. The fairness of the report and the second reason for refusal is challenged on the basis of a number in inaccuracies. The first of these is that there is a reference in reason number 2 to the development as being located on primarily unzoned lands. I am not satisfied that that is, in fact, an inaccuracy. Undoubtedly it seems to be that case that at least the supermarket development was located on primarily zoned lands and that the other development, the mixed use development, was on unzoned lands. It seems to me that when one carefully analyses the text of these two refusals that it could not be reasonably said that there is any kind of substantial inaccuracy involved in either of them. Even if there was, it seems to me it is of such an insubstantial and immaterial nature as to not give rise to a contention that is of sufficient weight or substance that the decision itself could be said to be invalid.
I have already dealt with the question of the intermingling of the two developments in the text of refusal number 2, and I am satisfied that that is not the case, and the contention that the reference to a commercial centre is clearly tied up with that suggestion, and I would reject the applicant's contention on the basis that a correct interpretation Of refusals number 2 belies that suggestion. But even it is were the case that there was some incorrect reference to a commercial centre, it seems to me again to be of insufficient moment or substance to warrant intervention by way of judicial review.
The final matter that is contended for is that the Bord and the inspector were ultra vires in failing to have conducted an environmental impact assessment. There isn't any evidence at all that either the Bord or the inspector failed to have regard to the environmental impact statement; indeed, the report of the inspector has numerous references throughout it to the Environmental Impact Statement. It seems to me that there is no evidence or no good reason for contending that the inspector, or indeed that the Bord, did not have regard to, or did not assess, the information contained in the environmental impact statement and it seems to me that that ground too also lacks any sufficient substance or weight to warrant the granting of leave for judicial review.
In all the circumstances, therefore, I am satisfied that the applicant has failed to demonstrate grounds which are of sufficient weight or substance to merit the granting of leave to apply for judicial review. Accordingly, I would refuse the application for leave.
APPROVED JUDGMENT.