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Cite as: [2015] IEHC 256
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Neutral Citation: [2015] IEHC 256 THE HIGH COURT
JUDICIAL REVIEW [2014 No. 242 JR] BETWEEN NOEL ROSS AND GARY ROSS APPLICANTS AND
AN BORD PLEANALA RESPONDENT JUDGMENT of Mr. Justice Noonan delivered the 23rd day of April, 2015. Introduction Background Facts 3. In the summer of 2010, the mobile home was irreparably damaged by fire and was replaced by a new mobile home of the same dimensions and in the same location as the original. 4. On the 20th of January, 2011, the planning authority, Wexford County Council (“the Council”), served a notice on the first applicant warning him that an enforcement notice under s. 154 of the Planning and Development Act 2000 (as amended) (“the PDA”) may be issued against him. Arising from this warning letter, the second applicant, on behalf of his father, made a number of submissions and observations in a letter of the 8th of February, 2011. In this letter, the second applicant pointed to the fact that many family holidays had been spent in the mobile home since 1973 and he enclosed photographic evidence. The first applicant had become aware in June, 2010 that a fire had severely damaged the mobile home leading to the necessity for its replacement. He submitted that this did not involve a breach of any planning regulation given that there had been a mobile home on the site since 1973 and probably 1959. He further submitted that the structure had been on the land in excess of five years and in the event of proceedings being taken by the local authority, they would be vigorously defended. 5. In a letter of the 10th of August, 2011, the local authority accepted that the original mobile was in situ for many years and was destroyed by fire damage. It was suggested that the replacement mobile home however was larger and in a new location on the site and it remained the Council’s view that planning permission was required. Notwithstanding that view, the Council indicated that it intended referring the case under s. 5(4) of the PDA to the respondent for a determination as to whether the development in issue was exempted development. The applicants were further informed that no enforcement action would be taken until a decision was issued by the respondent. 6. Arising from the s. 5 referral, the second applicant made further written observations to the respondent. He clarified some factual matters and made legal submissions as to why planning permission was not required. 7. The respondent made its decision on the s. 5 referral on the 25th of January, 2012 and determined that the replacement of the mobile home was development and was not exempted development. The respondent’s decision was accompanied by a notice advising that its decision may be challenged by way of judicial review only. No application in that regard was made by the applicants. 8. Instead, the second applicant lodged an application for retention planning permission for the mobile home on the 23rd of September, 2013. This was grounded on a planning application form dated the 15th of September, 2013. This is a pro forma document where information was furnished under various headings including the following:
(Brief description of nature and extent of development) Retention of replacement of mobile home… 15. Where the application refers to a material change of use of any land or structure or the retention of such a material change of use: Existing use (or previous use where retention permission is sought) Mobile home Proposed use (or use it is proposed to retain) Replacement mobile home Nature and extent of any such proposed use (or use it is proposed to retain) The retention for replacement of mobile home proposal is for the same use it has been used since 1973 and that is for use for holidays during summer.” 10. In its decision of the 15th of November, 2013, Wexford County Council refused the application for the following reasons:
2. The development is considered contrary to Objective TM 34 in the Wexford County Development Plan 2013 - 2019, which states that it is an objective of the Council to prohibit the replacement of individual mobile homes and caravans in rural or urban areas except in extenuating circumstances. It is considered that the applicant has not demonstrated sufficient extenuating circumstances in this instance. Therefore, the development would be contrary to the proper planning and sustainable development of the area.”
Objective CZM09 To restrict development outside the boundaries of existing coastal settlements to that which is required to be located in that particular location such as: • Development to support the operation of existing ports, harbours and marinas; • Agricultural development; • Tourism related facilities appropriate to the particular coastal location (other than new build holiday home accommodation) where there is a demonstration of a location or resource based need; • Other developments where an overriding need is demonstrated. New development shall be prohibited where it poses a significant or potential threat to coastal habitats or features, and/or where the development is likely to result in adverse patterns of erosion or deposition elsewhere along the coast and where it is likely to affect the integrity of Natura 2000 sites… Objective TM34 To prohibit the replacement of individual mobile homes and caravans in rural or urban areas except in extenuating circumstances and where permitted the planning permission will only be for a limited period.” 12. In an undated document, the first applicant submitted an appeal from the decision of the local authority and set out four grounds. The first was that it was unfair to deprive the applicant of his long established entitlement solely because of the damage occasioned by the fire. Secondly, he submitted that the development was not in fact contrary to Objective CZM09. Thirdly, he disputed that the damage by fire did not amount to an extenuating circumstance within the meaning of Objective TM34. Fourthly, the applicant accepted that while he did not judicially review the decision of the respondent in the s. 5 referral, he disputed that the mobile home was not in fact exempted development. 13. The respondent’s inspector attended at the site on the 4th of February, 2014 for the purposes of an inspection. In her report to the respondent, the inspector identified the development as:
16. In the light of the foregoing, the inspector arrived at the conclusion that a grant of permission for retention was recommended. She further recommended a condition confining the use of the holiday home to the applicant with an exclusion of subletting or sale. She made other recommendations not material to the issues herein. 17. On the 26th of February, 2014, the respondent issued its decision to grant permission for the development in accordance with the plans and particulars based on the reasons and considerations and conditions set out therein. Under the heading “Reasons and Considerations” the respondent said:
Reason: 19. In their statement of grounds, the applicants rely on six grounds:
2. Whilst it is disputed that planning permission was required to replace the mobile home, its retention was in fact permitted by the existence of “extenuating circumstances” as per TM34. 3. The restriction on alienation is a disproportionate interference with the applicant’s right to own property and is an unequal treatment of the applicants vis-à-vis the owners of nearby property. Thus, it discriminates against the applicants and is unlawful. 4. The applicants were given no opportunity to address the respondent on the two aspects of Condition 2 prior to their imposition in breach of the requirements of natural justice. This ground has been abandoned. 5. Insofar as the PDA permits such a condition, it is contrary to Articles 40.1, 40.3.2 and 43 of the Constitution. This ground underpins the claim for a declaration that the powers conferred on the respondent permitting such a condition are unconstitutional and thus cannot be proceeded with in the absence of notice to the Attorney General. 6. The grant of permission was ultra vires the respondent because it was not an unlawful structure requiring retention and did not contravene Objective TM34. 21. The respondent further pleads that Condition 2 is not severable from the planning permission as a whole insofar as it would leave in situ a permission never intended by the respondent. Submissions 23. It was further submitted that the decision under challenge contravened s. 34(10) of the PDA in failing to comply with the requirement to state the main reasons for the imposition of the condition, where the reason actually stated was irrelevant to the decision. The applicants further contended that insofar as the condition is personal to the first applicant, it is invalid. Reference was made to authorities which showed that planning conditions enure for the benefit of the lands and are not properly regarded as personal to the applicant for such permission. Reliance was placed on Mason v. KTK Sand and Gravel Ltd (Unreported, High Court, Smyth J., 7th May, 2004). The applicants also referred to Flanagan v. Galway City and County Manager [1990] 2 I.R. 66, where the members of Galway County Council passed a resolution directing the county manager to grant a planning permission in circumstances where the councillors took into account the personal circumstances of the applicant and his employees and thus did not restrict themselves to considering the proper planning and development of their area. 24. Finally, the applicants argued that if the condition in question is ultra vires, it ought to be regarded as severable from the rest of the planning permission and in that respect relied on Bord na Mona v. An Bord Pleanala [1985] I.R. 205. 25. Mr. Foley BL on behalf of the respondent made objection to a number of the applicant’s submissions, in particular those relating to the failure to give adequate reasons pursuant to s. 34, on the basis that these were not grounds upon which leave to seek judicial review had been granted. In a ruling I delivered during the course of the trial, I accepted that submission and ruled that the applicants were precluded from making submissions based on either a failure to give any, or any adequate, reasons for the imposition of Condition 2 or from arguing that the condition is either irrational or unreasonable. 26. The respondent further argued that the applicants could not complain about the condition on the basis that a permission had been granted which was precisely what the applicants applied for. The suggestion that the condition regarding what was meant by “summer months” was vague and uncertain could, if the applicants really wanted clarification, have been the subject matter of such clarification pursuant to s. 146A of the PDA but the reality was that the applicants did not want clarification but simply no restriction of any kind. In that regard, the applicants had failed to exhaust their remedies and the court ought to exercise its discretion against granting relief. 27. The respondent contended that the applicants are precluded from now seeking to claim that the development did not in fact require planning permission and is exempted on the basis that this was already the subject matter of the s. 5 referral which was not challenged by the applicants. It was further said that the applicants could not be heard to complain about the first named applicant’s personal circumstances being taken into account because in making the application, these had been expressly relied upon as constituting “extenuating circumstances”. It was submitted that in any event, the condition could not be viewed as being severable from the permission as a whole. If the applicants had sought year round use in the first instance, the application might well have been refused and thus what would remain would be a permission never contemplated by the respondent. Therefore, if the condition is invalid, the entire permission must be quashed, a relief which is not sought by the applicants and confers no benefit on them. 28. The respondent relied on the recent judgment of this court in Ratheniska v. An Bord Pleanala [2015] IEHC 18, in which Haughton J. reviewed many of the relevant applicable legal principles to applications for judicial review against bodies such as the respondent. The authorities established that the respondent’s decisions enjoy a presumption of validity until the contrary is shown and as an expert body, a significant degree of deference should be shown by the court to decisions made within its own area of particular expertise. Discussion 30. Turning to the specific grounds upon which leave was granted, as already indicated, Ground 4 has been abandoned and Ground 5 cannot be proceeded with in the absence of notice to the Attorney General. Grounds 2 and 6 can be conveniently grouped together because both in effect make the same point, i.e. that the applicant’s mobile home did not require retention permission because its use was permitted by “extenuating circumstances”. This proposition is in my view unstatable. This issue was already canvassed in detail by the applicants with the planning authority, who referred it to the respondent under s. 5 of the PDA for determination. That determination was made by the respondent and could not be clearer. The development requires planning permission. The applicants were advised of their right to seek judicial review of this determination and they declined to do so. They cannot in my view now be heard to say that the development never required planning permission in the first place. The applicants are clearly estopped and precluded from attempting to re-agitate an issue that has already been conclusively and validly determined against them. 31. What remains therefore are Grounds 1 and 3. Ground 1 complains that Condition 2 is invalid in relation to the “summer months” restriction because it is vague and uncertain. There are a number of points to be made about this. If there is any vagueness and uncertainty about this condition, it was introduced by the applicants. As alluded to above, in their application form for planning permission the applicants expressly stated that the nature and extent of the use of the development that they proposed to retain was:
33. If the applicant’s real complaint is that the meaning of “summer months” is vague and uncertain, it is surprising to say the least that they made no enquiry to establish what this actually meant. Indeed, it appears from submissions made by counsel for the respondent that the respondent has already come to a view on this and if certainty was required, all the applicants had to do was ask. They refrained from doing so either informally or by way of referral under s. 146A. In my view, there was an onus on the applicants to make some attempt to seek clarification of this condition if they required it before moving the court in judicial review proceedings. See in that regard Donegal County Council v. O’Donnell (Unreported, High Court, 25th July, 1982). 34. Quite apart from that, it seems to me that the applicants have significantly shifted their position from complaining about vagueness and uncertainty to a complaint that the restriction of use to the summer months does not advance any legitimate planning purpose and is therefore not a condition which is “expedient for the purposes of or in connection with the development authorised by the permission.” - See s. 34(4) of the PDA. 35. In that regard, the applicants relied on the judgment of the Supreme Court delivered by Hardiman J. in Ashbourne Holdings following the earlier Killiney case. There is to my mind considerable doubt as to whether the applicants are entitled to advance this argument at all in circumstances where their grounds appear to make no reference to it. Leaving that consideration to one side for a moment, it is evident that an attempt has been made in this case to expand the grounds upon which leave was granted on the 10th of April, 2014 by the introduction of subsequent affidavits. The plaintiff’s solicitor, Mr. John Brannigan, swore an affidavit on the 4th of November, 2014 in which he said (at para. 3):
38. With regard to Ground 3, the applicants complain that the prohibition on alienation is a disproportionate interference with the applicant’s right to own property. They contend that it is discriminatory in that it does not treat in equal manner the applicants with owners of nearby property in the same county. However, that latter argument was not pursued in the applicant’s submissions. Rather, it was again argued that a restriction on alienation is not expedient to the development and the respondent was not entitled to personalise the condition to the applicants. I do not consider that the judgment of Blayney J. in Flanagan is authority for the proposition that a planning authority, or on appeal, the respondent, cannot have regard to the personal circumstances of an applicant. Rather, what the court was concerned with there was an attempt by councillors to overrule a decision of the county manager by reference to criteria which were entirely irrelevant to planning considerations. 39. The situation here is quite different. The applicant’s entire application was predicated upon their personal circumstances. Indeed, it was essential for them to make the application on that basis if they were to have any hope of convincing the planning authority or the respondent of the existence of extenuating circumstances. Yet, the applicants now appear to suggest that those very circumstances may not be taken into account in imposing appropriate conditions. Here again it seems to me that the applicants are simply being confined to using the property for the purpose for which they have always used it. That was what they told the planning authority that they wished to retain. 40. There is of course no restriction on the applicant’s right to sell the land comprising the site. If a new purchaser were to seek to use the mobile home on the site, he or she would have to make an appropriate planning application. Whether extenuating circumstances could then be said to exist would of course be a matter for the planning authority. 41. It seems to me that the applicants herein made a very specific case that they should be treated as an exception to the rule for particular reasons personal to them. The respondent was ultimately convinced that an exception should be made because of those particular circumstances. There is no substance in my view in the contention that Condition 2 is not expedient to the development. The reason given for Condition 2 seems to me to be perfectly rational and understandable:
43. For these reasons therefore, I will dismiss this application. |
